APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Bracadale

Lady Clark of Calton

[2015] HCJAC 97

XC723/13

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

D McL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

_______________

Act: Keane; Drummond Miller (for AC Miller & Mackay Ltd, Perth)

Alt: Wade QC AD; the Crown Agent

31 January 2014

Introduction

[1] This is an appeal in terms of section 65(8) of the Criminal Procedure (Scotland) Act 1995 against a decision of the sheriff at Perth, on 28 November 2013, to extend the 11 and 12 month time limits within which the Crown may indict the appellant and commence his trial in respect of two charges of lewd and libidinous conduct against two young girls, aged between 6 to 8. The first charge libelled conduct on various dates between 1997 and 1999, and the second on a date in 2006. The appellant had appeared on petition in respect of these charges on 26 January 2007. He was committed for further examination and granted bail. No formal steps were taken in respect of these charges until the application to extend the time limits over six years later.

[2] The circumstances are that, on 31 January 2007, the police wrote to the procurator fiscal identifying evidential difficulties in respect of the charges, primarily due to the time gap between the offences relative to the application of mutual corroboration. A forensic enquiry was instructed in an effort to recover alternative corroborative evidence. This did not produce any positive result and the police were told that the case would be marked “no proceedings” if nothing further was forthcoming. On 6 March 2007, the police reported that enquiries had not brought forth any additional witnesses or forensic evidence. On 3 April 2007, they advised that investigations were ongoing in respect of other children who had resided with the appellant in the past. They requested that the procurator fiscal hold off making any final decision until these investigations had been completed.

[3] In May 2007, the police advised the procurator fiscal that another child, NA, had made allegations which were similar to those in the petition. There was a prospect that she might be able to provide the necessary mutual corroboration. NA was then about 20 years old and lived in England. On 22 May 2007, the police reported that they had contacted NA by telephone and discussed with her the prospect of her testifying in court. She was made aware of the availability of vulnerable witness facilities. She was adamant that she would not assist and would neither be a witness nor provide a statement. At about the same time, on 28 May 2007, NA e-mailed her social worker with details of the alleged abuse at the hands of the appellant, including sexual intercourse with her from the age of 14. The e-mail was passed to the police, but no further investigation was carried out. The e-mail was simply filed away.

[4] On 5 June 2007, the procurator fiscal e-mailed the police stating that the charges could be kept live for 8 months from the date of the petition before an internal decision had to be made about what should be done. The police were advised to revert within that timescale if any further evidence was obtained. They did not do so. On 29 August 2007, the case was marked “no proceedings meantime” with no intimation to be made to the appellant. No indictment was served and the time limits duly expired on 26 December 2007 and 26 January 2008.

[5] Almost 5 years later, a child protection enquiry was instigated regarding a daughter of the appellant, namely EMcL. As part of that, NA, who was by then aged about 25, decided she would testify against the appellant. She provided a statement on 25 September 2012. Its content was reflected in a second petition on which the appellant appeared on 19 September 2013. This contained six charges of lewd and libidinous conduct, assault and rape involving NA in the years 1996 to 2003 and two other complainers, neither of whom had featured in the first petition, in 2000 and 2009. The appellant was this time fully committed, and released on bail, on 26 September 2013. On 25 September 2013, the Crown lodged the application for extension of time in respect of the first petition.

The sheriff’s decision
[6] On 28 November 2013, the sheriff granted the Crown’s application, on cause shown, in terms of section 65(3)(b) of the 1995 Act. The 11 month time limit was extended from 26 December 2007 to 19 August 2014 and the 12 month time limit from 26 January 2008 to 19 September 2014. Thus, the time limits in the first petition would now be due to expire on the same dates as the time limits in the second petition.

[7] The sheriff observed that no criticism was made of the Crown’s decision to place the appellant on petition in 2007. Rather, the focus was upon an alleged failure to obtain the evidence of NA, and thus to indict the appellant within the time limit. The sheriff was satisfied, however, that there had been no error or fault on the Crown’s part in not doing so. There had been no failure or inadequacy in the police investigation. The police had attempted, on more than one occasion, to obtain a statement from NA and to secure her as a witness by emphasising the special measures available to vulnerable witnesses. She had steadfastly refused to do either. Her e-mail to the social work department shortly thereafter had given no indication of a change in her position. The Crown had reached a considered decision on the basis of the information available at the time. They had assessed the sufficiency and quality of evidence available in determining whether to indict the appellant. A charge could not have been libelled responsibly, with or without the e-mail, in the absence of evidence from NA. The Crown was not responsible for the extension of time now being required and any error that might have been discerned on their part was excusable.

[8] In the whole circumstances, the fact that the evidence of NA became available long after the expiry of the 12 month time limit was a sufficient reason to justify an extension of time (Smith v HM Advocate, HCJAC, unreported, 25 April 2002; Lauchlan v HM Advocate 2010 SCCR 347, at paras 23 and 27). The sheriff had regard to the serious nature of the allegations and the public interest that the appellant should be tried in relation to all of them. No particular prejudice to the appellant was identified, although that did not justify the loss of the important protection afforded by section 65 of the 1995 Act. Whilst the length of the extension was greater than might ordinarily be sought, it had been dictated by the particular circumstances of the case, including the developments occurring since 2012 and the association of the charges in the 2007 petition with those in the 2013 petition. The public interest lay in all such charges proceeding to trial.

Submissions
The appellant
[9] The appellant argued that an extension to a date some seven and a half years from the appellant’s first appearance would be extraordinary. Normally, extensions were for days or weeks, but not years.

[10] At the time of the first petition, the Crown had evidence from two complainers. A sufficiency could only be obtained by the application of mutual corroboration. The Crown recognised the difficulty because of the time gap of some seven years between the charges, added to which the nature of the charges and the loci were different. A sufficiency of evidence had not been required in order to place the appellant on petition (Lauchlan v HM Advocate 2010 SCCR 347). Nonetheless, the proper approach was for the Crown to place the appellant on petition only if there was a reasonable expectation that corroboration would be found, allowing for service of an indictment within the statutory time limit (Campbell v Ritchie 1999 SCCR 914). Instead, the Crown had elected to place the appellant on petition on a speculative basis. The Crown had been aware that there was insufficient evidence to proceed, but nonetheless chose to place the appellant on petition knowing that this would start time running.

[11] The terms of the e-mail to the social work department suggested that the evidence of NA could have been obtained in May 2007. The Crown should have been prompted to investigate whether she was prepared to give further information at that stage. Furthermore, the Crown had been aware that the evidence of NA was crucial to proof of the charges in the first petition, and a statement had eventually been obtained in September 2012. Thus, there had been a sufficiency of evidence in September 2012, and the Crown could have sought an extension at that time. However, it was not until a year later that the second petition was served, reflecting the charges in respect of NA.

[12] The court had to consider whether, in the whole circumstances, there was sufficient reason to justify an extension and whether in the exercise of its discretion an extension should be granted (HM Advocate v Swift 1984 JC 83, LJG (Emslie) at 88; Early v HM Advocate 2007 JC 50, LJC (Gill) at 52). The sheriff had erred in finding that there had been no error on the part of the Crown (Stuart v HM Advocate 1993 SCCR 1010). The Crown had failed to enquire of the police, before expiry of the time limits, whether there had been any further developments. Such enquiries would have brought to light NA’s e-mail, which indicated a willingness or, at least, a potential willingness, to co-operate. It was not sufficient for the police to have made only two telephone calls to NA rather than attending upon her personally to persuade her to give evidence.

[13] The appellant was entitled to a trial within a year; “scrupulous adherence” to the time limits was required (Early v HM Advocate (supra), LJC (Gill) at 57). Standing the apparent insufficiency of evidence, the Crown could be expected to have been particularly concerned about depriving the appellant of his right. The Crown had proceeded in an unsatisfactory and inexcusable manner. It could not have been the intention of Parliament to extend the time limits to such an inordinate degree. The period of extension sought was unique (cf Langan v Normand 1997 SCCR 306) and the sheriff had failed to give proper consideration to that fact. It was not sufficient to state that the extension was dictated by circumstances and necessary in order to combine the charges contained in both petitions.

The Crown

[14] The Crown contended that it was for this court to consider whether the sheriff had misdirected herself in law by applying the wrong test or by reaching a decision that no reasonable sheriff could have reached. There had to be something to identify that the sheriff had erred, even although her decision at the first stage of the test (HM Advocate v Swift (supra); Early v HM Advocate (supra)) had not been a discretionary one. It was necessary for the appellant to identify a reason why the sheriff had been wrong to conclude that there had been no error on the part of the Crown. The sheriff had been correct to decide that there had been no such error. The first stage of the test related to what could, or could not, have been ascertained by the Crown in 2007. From 26 January 2007, when the appellant had first appeared on petition, until 29 August 2007, when the case was “no pro’d”, there had been active investigation and discussion between the reporting police officer and the allocated procurator fiscal; everything that could have been done was done by May 2007. In June 2007, the fiscal had advised the police that there were still a couple of months left for investigation, but nothing else came to light. In August 2007, the fiscal dealing with the matter took the view that there was insufficient evidence to proceed. It would have been known that the time bar was due to expire and it was simply allowed to expire without intimation. Having exhausted all lines of enquiry, the decision had been the correct one.

[15] The e-mail from NA to the social work department on 28 May 2007 did not suggest that NA had changed her mind about being a witness since she had spoken to the police. It was not the Crown’s practice, then or now, to force a vulnerable complainer through the process of giving evidence in a case of this nature where it would be detrimental to her health. Accordingly, there had been no fault on the part of the Crown.

[16] The sheriff would have exercised her discretion at the second stage in favour of the Crown. The appellant had not identified any error in the sheriff’s exercise of her discretion. The sheriff was best placed to assess any allegations of systemic failure or error and whether or not any error may be excusable (Paterson v PF Airdrie [2012] HCJAC 61). The same applied to the sheriff’s decision on whether cause had been shown for granting an extension of time (Bateman v HM Advocate [2013] HCJAC 127). There could be no criticism of the sheriff’s reasoning. The public interest was a particularly important factor where, without the extension of time, the allegations of child abuse would go unprosecuted.

[17] It was not possible to cite another example of a case in which an extension of seven years had been granted, but a period of at least four or five years was not entirely unusual in the prosecution of historic sex abuse cases. There could be no limit of time where the extension was justified in all the circumstances.

Decision
[18] In view of the undoubtedly unusual length of time involved, the court has given this case particularly anxious scrutiny. It was not disputed that the two-stage test set down in HM Advocate v Swift 1984 JC 83, as developed in Early v HM Advocate 2007 JC 50, applied. That is, first, whether a sufficient reason exists which might justify the grant of an extension and, secondly, whether, in the exercise of the court’s discretion in all the circumstances of the case, an extension should be granted for that reason.

[19] The complainer NA’s evidence was not available prior to expiry of the original time limits. The sequence of events in 2007 has been adequately explained and the court accepts that the subsequent delay derives from the unavailability of sufficient corroborative evidence to proceed at that time. The court does not consider that any fault can be attributed to the Crown in this regard. In these circumstances, where what has effectively happened is that new, potentially decisive, corroborative evidence has emerged, the first stage of the test has been met.

[20] As to the second stage, there is no criticism to be made of the sheriff’s exercise of discretion in favour of granting the extension for the reasons given. The sheriff took all relevant circumstances into account, including the length of time involved. The delay in any given case will always be a significant factor. In that regard, the statutory provisions provide adequate protection of an accused’s statutory right to a trial within 12 months by virtue of the need for an application to be made to the court for any extension of time. In all cases the court will require sufficient justification to outweigh what must be, in view of the terms of section 65 of the 1995 Act, prima facie unacceptable delay in seeking to bring an accused to trial beyond the statutory time limits.

[21] It is in the interests of accused persons, complainers, witnesses and the wider public that cases are tried within what statute has declared to be a reasonable time. The broader interests of justice, however, require that serious allegations may be tried even at a late stage, rather than go unprosecuted, subject to the overriding requirement of fairness. In the present case, it is particularly compelling that, leaving aside the complainer NA, there would be no mechanism by which the new serious allegations of child abuse made against the appellant could be successfully prosecuted (cf Mejka v HM Advocate 1993 SCCR 978, HM Advocate v McPhee 2007 SCCR 91). The evidential problem faced initially by the Crown is, essentially, reversed. In 2007, the charges in the first petition could not proceed without NA, who is a complainer in the second petition only. Now, the second petition cannot proceed, at least in respect of the charges involving NA, without the corroborative elements in the first petition. It is in the interests of justice that these charges should be allowed to proceed.

[22] The court does not envisage that applications for extensions of time of this magnitude will arise other than in extraordinary cases. Nevertheless, this court is unable to find fault in the sheriff’s discretionary decision in respect of the second element of the test. Accordingly, although the matter is not without difficulty, the appeal is refused.