HMA v GB 2018
‘GB,’ a man who was charged with assault with intent to rape, has his appeal against the decision to grant an extension of a 12-month period to bring the accused to Trial following Crown error refused. The Appeal Court upheld the sheriff’s decision to grant a motion by the Crown after ruling that “sufficient reason” had been shown for the extension of time and the appeal court could not rule that the Sheriff had erred.
GB was charged in July 2016 but there was difficulty gathering evidence of the identity of man that intended to rape therefore GB did not appear on petition until late January 2017. Furthermore, there was a lot of discussion and delays regarding whether the complainer would need special measures and it was ultimately decided that she would. A vulnerable witnesses notice was therefore required but when the First Diet called in December 2018 this notice had not been lodged.
This was due to a communication failure of the part of the fiscals. Therefore the First Diet was continued until January. At this diet the crown asked the sheriff to extend the period in which there crown could take the accused to Trial until May 2018 instead of January 2018 as the complainer’s evidence was still to be taken.
This was opposed but then granted by the Sheriff. However the appellant argued that this extension did not meet the two stage test in HM Advocate v Swift 1984 JC 83.
However, the appeal was refused as the appeal judges observed that this case was “very fact-sensitive” and that the court must consider “all the relevant circumstances.” Lady Paton stated that the first instance Sheriff gave reasons and explained the nature of the error and therefore it could not be said that he had erred in law.