Advice on how to proceed where a complainer may be vulnerable and hence reluctant to attend court has been issued by the High Court in a decision allowing an appeal against a sheriff's refusal to extend the 12 month time limit for beginning a solemn trial.

The case was brought against Neil Graham, who was charged with sexual offences against two complainers, in 2011 and 2016 or 2017. The accused appeared on petition in 1 October 2019; the Coronavirus (Scotland) Act 2020 extended the time bar until 1 April 2021. At a first diet in March 2021 a trial was fixed for 20 July and the 12 month period extended without opposition until 23 July. The case was one of two priority trials for that sitting.

On 20 July one complainer, TS, an essential witness in respect of both charges, failed to attend. The fiscal decided to begin the other priority trial. On Friday 23 July he moved the sheriff to adjourn the trial diet until 6 September and extend the 12 month period to 10 September. The sheriff was given a “convoluted” account of the citation of TS, who had been personally cited by the police only on 16 July and recorded as “hostile” to coming to court, with no explanation for the late citation, and was not satisfied that the Crown had shown a reason sufficient to justify an extension.

Before the Appeal Court it was said that postal citation of TS had failed in March, and when police later attempted personal citation it transpired that she had moved address. She was not traced until 16 July, at which point she told the police she did not intend to attend because of “repercussions”. For some reason the fiscal was told, incorrectly, that an execution of service was unavailable. The victim support service had tried to contact TS without success.

Giving the opinion of the court, Lord Justice General Carloway, who sat with Lords Menzies and Malcolm, said that the simple reason for the trial not going ahead was that an essential witness had failed to attend despite having been personally cited. In a perfect system she might have been located sooner, and the fiscal could have taken a different course of action on 20 July, but any failure by the Crown “cannot reasonably be described as a fault of such magnitude as results in the cause of the trial not proceeding being attributed to the Crown rather than the complainer”. The extension sought was only six weeks, refusal affected the other complainer as well as TS, and the interests of justice required that a short adjournment be granted.

In a postscript to the opinion, Lord Carloway added that the case highlighted the problems where a complainer might be vulnerable and reluctant to attend court. He commented: “The execution of a warrant to arrest a complainer in a sexual offences case should not be regarded as a satisfactory solution. The situation which arose here would have been avoided if steps had been taken to take the evidence of the complainer on commission... Doing so would have flushed out any problems with the attendance of the complainer. If the commission had produced evidence implicating the respondent, the trial could then have proceeded. If it did not, no doubt the Crown would have been obliged to take other steps in advance of the trial diet. It may be that such steps can now be taken.”

Click here to view the opinion of the court.