T.B. v. His Majesty’s Advocate [2023] HCJAC 22

Note of appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted in relation to allegations of engaging in an abusive course of behaviour in relation to his ex-partner from February to November 2020, contrary to section 1 of the Domestic Abuse (Scotland) Act 2018 whilst on two bail orders. Following lengthy procedure, on 12 December 2022, the sheriff extended the time bar until 25 April 2023 despite opposition on behalf of the appellant. In granting the motion the sheriff held that the two stage test in Swift v. HMA 1984 JC 83 had been satisfied, in particular:- (1) the defence had laboured under the same misapprehension as the Crown re the date of the calling of the indictment until after the close of business on the Friday; and (2) the interests of justice merited the granting of the application for the extension to be granted. The appellant appealed against the granting of the extension it being submitted that the sheriff had failed to give sufficient weight to the errors by the Crown in failing to notice that the time bar expired on the Friday and not the Monday and that error did not justify a retrospective extension. Furthermore, it was submitted the interests of justice lay with the appellant who had already been the subject of three adjournments due to a lack of court time. Here the court refused the appeal. The court observed that, whilst the sheriff referred to Swift and Early v. HMA 2007 JC 50, neither of those cases referred to trial diets. The court reiterated, under reference to the Preliminary Hearing Bench Book at paragraph 5.4.2, that the sole question for the sheriff was “where do the interests of justice lie”?