Allan McClymont v. Her Majesty’s Advocate [2020] HCJAC 1

Appeal under section 65(1)(b) of the Criminal Procedure (Scotland) Act 1995:- On 27 September 2018, during the course of a trial at Paisley Sheriff Court,  the sheriff extended the 12 month time bar by 4 months under section 65(1)(b) of the Criminal Procedure (Scotland) Act 1995 after acceding to a Crown invitation to desert the trial pro loco et tempore. The appellant appealed against the granting of that extension under section 65(1)(b) of the 1995 Act it being submitted that no sufficient reason had been shown by the Crown to justify the extension, alternatively, it was submitted that the sheriff exercised his discretion unreasonably in allowing the extension. The circumstances were that after lengthy procedure the case proceeded to trial at Paisley Sheriff Court on 18 September 2018. Importantly no defence statement had ever been lodged on behalf of the appellant, despite there being numerous first diets and there being no point raised on behalf of the appellant regarding any outstanding disclosure issues. At one point prior to the trial counsel on behalf of the appellant had sought to adjourn a trial diet to enable the defence to fully prepare for trial. At that stage the sheriff was advised that if the motion to adjourn was not granted then counsel would require to withdraw from acting. The sheriff had refused to adjourn the trial and counsel did not withdraw. During the course of the trial the Crown led evidence via a joint minute of the findings of Gerald Dobson and Mark McLeod, both Forensic Computer Analysts, who had prepared a Report following their examination of mobile phones belonging to the complainer and the appellant. On 19 September 2019 the complainer gave evidence. On 20 September the Crown led evidence from Mr Dobson and during his examination-in-chief he indicated that there may have been more messages over and above those listed as recovered from the appellant’s phone. Mr Dobson’s evidence was halted and investigations were instigated on behalf of the appellant which resulted in the trial being adjourned day to day for those to be carried out. On the afternoon of 27 September the sheriff heard a motion on behalf of the appellant to desert the trial simpliciter and a motion from the Crown to desert the trial pro loco et tempore. The sheriff granted the Crown’s motion and then granted a further motion by the Crown for an extension of the 12 month time bar period. The appellant appealed against the granting of the extension. The court refused the appeal. The court noted that despite a Note of Appeal comprising of 9 pages of narrative relating to the circumstances of what occurred and an 18 page by the trial sheriff the court was unable to identify any good reason for the trial being deserted. The court noted that in advance of the trial the defence had sight of the various Crown productions and Crown labels which collectively included all of the material recovered from the two phones. The court stated that the appellant would be in a position to advise his lawyers of the nature and content of any exchange of texts between himself and the complainer which were not contained within the Crown productions/labels lodged. It was further observed by the court that no instruction was made by the defence to have an expert instructed by the defence to interrogate the phones in advance of trial. No disclosure issue arose as the defence had been given notice of it (HMA v. AM 2016 SCCR 227) and the remedy available to the defence would have been to apply to the court for permission to inspect the productions. A number of criticisms were made by the court in relation to the conduct of those involved in the case. In particular, why first diets were continued for no apparent reason, why there was no defence statement lodged on behalf of the appellant and a lack of proper case management, there being no inquiry at all why no defence statement had been lodged at any of the callings of the indictment nor when the issue arose during the course of Dobson’s evidence. The court described the consideration of the defence statement as a “central component in the exercise to be conducted at any first diet where contested issues are raised”.  The court reiterated the importance of defence adherence to section 70A of the 1995 Act and the resultant disclosure obligations on the Crown under section 124 of the Criminal Justice and Licensing (Scotland) Act 2010 once a prosecutor has received a copy of the defence statement. The court highlighted that the scope of the Crown’s duties to disclose are set out in section 121 of the Criminal Justice and Licensing (Scotland) Act 2010 and the court observed that no reference to section 121 was made before the sheriff. The court noted that by the defence failing to lodge a defence statement there was nothing to suggest that the Crown obligations had been engaged and not complied with and the various investigations made by the Crown were unnecessary in the context of any perceived disclosure obligations on the Crown. The court considered that the sheriff’s decision to consider it appropriate to desert the trial on the basis that further examination of the telephones had identified additional material of which neither the Crown nor the defence had been aware was unjustified given the speculative nature of the defence inquiry. The court noted that the debate before the sheriff had focused on what material had not been provided to the defence rather than what steps had bene taken by the defence to recover the material themselves and, more fundamentally, no reference was made to whether any of the ‘new’ material engaged any of the Crown obligations of disclosure particularly in light of the failure of the defence to comply with the statutory obligations incumbent on them with their failure to lodge a defence statement. It was submitted at the appeal that there had been a systemic failure on the part of the Crown in relation to the issue of the interrogation of the mobile phones and the time bar ought not to have been extended. It was submitted that all material recovered by the forensic computer analysts from both phones ought to have been made available to the defence and that the Crown were at fault. As such it was submitted that the first stage of the two stage test in HMA v. Swift 1884 JC 85 had not been satisfied, namely, no sufficient reason had been given by the Crown to entitle the sheriff to justify an extension of the time bar. In relation to the second stage, whether the sheriff had correctly exercised his discretion, it was submitted he had erred in failing to give proper weight to the interests of the appellant and the resultant  prejudicial impact of the granting of the extension. On behalf of the Crown it was submitted that the failure by the defence to comply with their obligations in terms of section 70A of the 1995 Act was critical and there had not been demonstrated a failure on the part of the Crown to disclose relevant material. The court considered that there was no justifiable reason for the trial not proceeding in light of the circumstances, most notably, the failure by the defence to comply with their obligations under section 70A of the 1995 Act. The court considered that the situation arose and a confused debate occurred “which was initiated by the defence on a misconceived basis”. The court considered that at the stage the trial had reached and with the issues that had arisen by then the correct decision was for the sheriff to extend the 12 month time bar. The court also made a number of criticisms in relation to various aspects of the case, including the delay in starting the trial and resultant inconvenience to the unempanelled jurors due to unacceptable delays in a short joint minute being typed and made available, the inconvenience to the balloted jury in having the trial adjourned day to day during the further inquiries into the mobile phones’ interrogation and the Crown uplifting productions lodged with the court without the court’s express consent. The court also criticised the defence for threatening to withdraw from acting if a motion was not granted by the court which the court described as “entirely inappropriate”.