Christopher Rodgers v. Her Majesty’s Advocate [2017] HCJAC 34

Appeal under section 65 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to Airdrie Sheriff Court in relation to allegations concerning the possession of indecent images of children contrary to sections 52 and 52A of the Civic Government (Scotland) Act 1982. The appellant’s first appearance on petition, when he was admitted to bail, was 12 December 2014. A trial diet was scheduled for October 2015. When the indictment called for a first diet on 6 October 2015 the first diet was continued to 13 October at which time the trial diet was adjourned, on defence motion, to January 2016, with a consequential extension to the 12 month time bar to the end of that sitting. The purpose of the adjournment was to allow the defence to complete their preparations for trial. At a first diet on 30 December 2015 the case was continued to trial in January when it was anticipated the trial would proceed. When the indictment called for trial in the sitting of 11 January 2016 the defence lodged a list of defence witnesses and productions the purpose of which was to seek to show that the indecent images must already have been on the computer when the appellant purchased it. The Crown sought an adjournment of the trial until March 2016 in order to investigate the new matter raised by the defence. The time bar was extended until 1 April 2016 and the motions were not opposed. At the first diet on 15 March 2016 the Crown sought a further adjournment of the trial because their investigations were not completed. The Crown were still making enquiries with the police cybercrime unit and were awaiting the results of that. The motions were opposed and granted with the trial adjourned to the sitting commencing 23 May 2016 with a first diet on 10 May. The time bar was extended to the end of the sitting on 3 June. At the first diet on 10 May the Crown made a further motion to adjourn the trial to the sitting commencing 20 June for similar reasons as before. The sheriff granted the motion and extended the time bar until 24 June and the appellant appealed against those decisions. It had been submitted by the Crown that as a result of the defence productions/witnesses being lodged 3 days before the trial of 11 January the Crown had made efforts to obtain information from Amazon and also enquiries regarding bank statements provided by the appellant which showed payments made on different occasions by him to retailers and resulted in these companies also being contacted by the Crown. It was submitted on behalf of the appellant that the sheriff erred in the application of the two stage test as described in HMA v Swift 1984 JC 83. It was submitted that the Crown had not shown sufficient reason in that it was not essential to make the further enquiries as outlined by the Crown and that they were unnecessary. It was further submitted that if they were necessary the time taken to conclude the enquiries was unjustified and without adequate explanation and the work ought to have been given greater priority. In relation to the exercise of discretion it was submitted on behalf of the appellant that the charges were not so serious in that the number of images was not large. In relation to the question of prejudice the appellant had lost his job and there were continuing financial consequences for him. On behalf of the Crown it was submitted that the investigations were essential because if the appellant was correct in his assertion then the case would be discontinued against him. It was submitted that whilst the enquiries took longer than had been anticipated it was in the public interest for the extension to be granted and the sheriff had applied the correct test and the way he exercised his discretion could not be criticised. Here the court refused the appeal. It was stated by the court that the sheriff had applied the correct two stage ‘Swift test’. In relation to the reason for the extension the Crown carried out the enquiries as a result of the defence position and were bound to carry out the investigations into the new line of defence. It was noted that the difficulties which had been encountered in obtaining the necessary information were significant. In relation to the application of the second stage of the ‘Swift test’ the sheriff correctly took into account various factors like the nature and seriousness of the charges, the public interest, the absence of prejudice to the appellant and the length of the extension sought in exercising his discretion in the way he did.