A serious assault case brought against a man and two women, indicted on five charges including an assault to severe injury, permanent disfigurement and permanent impairment has been dropped after a series of Crown errors - including a typing mistake-  resulted in the case being time barred without justification.

The Crown had sought extensions to the time limit to bring the prosecutions, but Lord Osbourne allowed the appeal of the three accused, who argued that the Crown had not shown a sufficient cause which might justify the extension of the time bar.

"It is of the greatest importance that effective steps should be taken by the Crown to ensure that the charges which appear in an indictment to be served by it do truly reflect the charges which are to be brought to trial. Plainly, that did not happen here," Lord Osbourne concluded.

The original indictment contained five charges, but was withdrawn and substituted with a second by the Crown, due to concerns about the extent of video evidence that would be used, which may have exceeded the terms of the charges.

A second indictment was served following a review of the charges, but this fresh indictment did not include one of the original charges, which had been wrongly deleted due to a “clerical” error.

“The charges that had been charges (1) and (3) on the first indictment were omitted from the second indictment, on account of a misunderstanding which arose between the procurator fiscal depute, who had dictated the material for the typists, and the typists themselves….The error concerned had finally come to light in consequence of the preparation of a joint minute by the Crown in advance of the trial diet fixed in relation to the second indictment,” Lord Osbourne said in his judgment, which upheld the appellants argument that an extension was not warranted.

“Having heard from the Advocate depute a detailed explanation of how the Crown's problem in this case came into being and adopting the approach desiderated by Lord Justice Clerk Gill in Early v Her Majesty's Advocate, we have reached the conclusion that the reasons advanced by the Crown in seeking to justify the extension of the relevant time period cannot be regarded as sufficient. We do not consider that those reasons can justify the grant of an extension,” he said.

“We are of the view that there were two errors involved in this case. The first was that which led to the misunderstanding between the procurator fiscal depute, who formulated the new charges, and the typist, who appeared to conclude that those charges were to be substituted for certain existing charges in the first indictment, not to be added to the charges in that indictment. That is a situation for which we consider that the procurator fiscal depute involved must be seen as responsible,"

"However, the consequences of that error could readily have been detected and cured but for the second and, in our view, more grave error which thereafter ensued, that is to say, the total failure of the procurator fiscal depute involved to check the terms of the second indictment effectively. In our view, it is of the greatest importance that effective steps should be taken by the Crown to ensure that the charges which appear in an indictment to be served by it do truly reflect the charges which are to be brought to trial. Plainly, that did not happen here."

"We have also had regard to the issue of how readily this error could have been avoided. It would not have been a difficult matter for a proper check to have been carried out on the terms of the second indictment, to ensure that it contained all the charges that the Crown wished to bring to trial. We are particularly surprised that that was not done, having regard to the background circumstances in this case which led to the conclusion that the terms of the first indictment were unsatisfactory.”

A Crown Office spokesman confirmed that as the case is now time barred, the Crown Office do not have the option to continue with proceedings as a result of the court's decision.

The full decision can be read here.

http://www.scotcourts.gov.uk/opinions/2008HCJAC43.html