D McL v. Her Majesty’s Advocate [2015] HCJAC 97

Section 65(8) appeal:- The appellant was indicted to Perth Sheriff Court in relation to two common law charges of lewd and libidinous conduct and behaviour alleged to have occurred in relation to two girls. On 28 November 2013 a Crown motion to extend the 11 and 12 month time limits within which the Crown have to indict the appellant and commence his trial was granted by the sheriff. The appellant appealed against that decision under section 65(8) of the Criminal Procedure (Scotland) Act 1995. The circumstances were that the appellant originally appeared on petition on 26 January 2007 in relation to the two charges. He was committed for further examination and granted bail. No action was taken in respect of those charges until the application to extend the time limits over six years later. The first charge related to alleged conduct between 1997 and 1999, and the second charge to 2006. The Crown considered there were evidential difficulties given the gap in time between the two charges. A further potential complainer, NA, indicated in 2007 that she was unwilling to co-operate in any prosecution of the appellant albeit she did indicate to her social worker that she had been subject to abuse at the hands of the appellant. In 2007 the case was marked “no proceedings meantime” with no intimation of that decision to be made to the appellant. The time limits duly expired on 26 December 2007 and 26 January 2008 with no indictment being served. A child protection enquiry was instigated in 2012 regarding a daughter of the appellant, EMcL. In addition, as part of the enquiry, NA decided she would now co-operate in the prosecution of the appellant. On 19 September 2013, the appellant appeared on a second petition which contained six charges relating to the allegations made by NA together with two further complainers who had not featured on the original petition. On 26 September 2013, the appellant was fully committed and released on bail. On 25 September 2013, an application for extension of time in relation to the original petition was lodged by the Crown. On 28 November 2013, the sheriff granted the application and in so doing stated that any failure to proceed in relation to NA back in 2007 was not the fault of the Crown and, in any event, what had taken place was excusable particularly in light of the serious nature of the allegations. Here it was submitted on behalf of the appellant that an extension of 7 ½ years was extraordinary. It was submitted that the Crown ought to have done more to investigate matters in relation to NA in 2007 when the allegations were initially made to the social worker and the sheriff was wrong to hold that there was no fault on the part of the Crown. It was further submitted that the Crown approach was unsatisfactory and inexcusable and granting such lengthy extensions had not been the intention of Parliament in relation to an accused’s entitlement to be brought to trial within the statutory time limits. On behalf of the Crown it was submitted that the sheriff was correct to say there had been no error on the part of the Crown and, in the absence of any such error, it was a matter for the sheriff, in the exercise of his discretion, and, whilst it was a particularly lengthy extension, lengthy extensions were not unheard of in such cases and could be justified in certain circumstances. Here the court refused the appeal whilst recognising that “the matter is not without difficulty”. The court scrutinised the whole circumstances behind the application and whether a sufficient reason existed which might justify the grant of an extension. The court considered that there was no fault on the part of the Crown. The court stated that the statement of NA in 2012 was potentially corroborative of the original petition’s charges. In relation to the second part of the HMA v Swift 1984 JC 83 test the court considered that no criticism could be made of the sheriff’s exercise of discretion in favour of granting the extension. The court observed that whilst the statutory rights and protections afforded by the statutory time limits are an important safeguard to an accused person, where an extension is justified the broader interests of justice require that serious allegations are prosecuted.