R.W. v. Her Majesty’s Advocate [2017] HCJAC 17

Bill of advocation and note of appeal:- The 77 year old appellant was indicted to Kirkcaldy Sheriff Court in relation to four sexual offences alleged to have occurred between 55 and 62 years ago, when the appellant was aged 14 - 20. The complainers were his two sisters and his sister in law who were aged between 5 and 15 years at the time of the commission of the alleged offences. The indictment was served on the appellant on 3 September 2015 when one of the complainers MM, was aged 70. The other two complainers were aged 66 and 64. The police investigation had commenced in March 2011 when the appellant’s whereabouts were unknown. By July 2014 the three complainers had been precognosced and MM had confirmed that she was housebound and there would be difficulties obtaining her evidence by conventional means. In July 2014 a pre-petition report had been completed and was submitted to the National Sex Crimes Unit at Crown Office. On 6 January 2015 the appellant appeared on petition. Little appears to have been done between July 2014 and the appellant’s first appearance on petition in relation to obtaining MM’s evidence in light of her difficulties. At various stages during the subsequent procedure it was repeatedly noted by the Crown that MM had various medical difficulties which impacted upon her ability to give evidence. The first diet was held on 29 September 2015 and a further 13 continued first diets took place during the procedure for six separate trial sittings between October 2015 and December 2016. The 12 month time bar period was extended on five separate occasions up to 15 December 2016. It would appear that by the end of 2015 the only outstanding issue which stood in the way of a trial commencing was the issue of how MM’s evidence was to be secured albeit the issue had first been raised 18 months previously. It appears that the Crown initially sought to have MM’s evidence introduced by way of statement under section 259 of the Criminal Procedure (Scotland) Act 1995, however, the medical certificate did not meet the terms of the section and the sheriff refused the application. A number of months passed before the Crown sought to make an application under section 272 of the 1995 Act which permits either party to apply for the appointment of a commissioner to take the evidence of a witness who by reason of being ill or infirm is unable to attend the trial diet. On 5 May 2015 the Crown made an incompetent verbal motion for authority to take evidence on commission. Rule 24.1 of the Act of Adjournal (Criminal Procedure Rules) 1996 provides that such an application shall be made by petition in terms of Form 24.1-B presented to the appropriate court. On 8 July 2016, at an unopposed hearing, the sheriff granted the Crown’s application to take the evidence of MM on commission, around 6 months after first being given an opportunity to explore the use of section 272. By January 2016, when the 12 month time bar would originally have expired, it had been extended on three occasions and was due to expire on 30 September 2016, with the trial to commence in the sitting of 12 September 2016. On 30 August 2016, the court was informed that the commission had not taken place. At the 6 September 2016 hearing it was noted that the date all parties could attend at the complainer’s house for commission would be 3 November 2016 some 4 months after authority was granted. A Crown motion to adjourn the trial to the sitting of 5 December 2016 was opposed by the defence but granted by the sheriff and the time bar was extended to 23 December 2016. On 22 November, at a further first diet the court was advised that the commission was to take place on 30 November as it had not taken place as planned on 3 November. There were two further continued first diets at which time the court was addressed in relation to the progress of preparing the transcript of the commission. A continued first diet held on 15 December called within the sitting which had commenced on 5 December 2016. A two accused trial had commenced on 7 December and lasted longer than he had expected, until Friday 16 December 2016. The sheriff considered that when the present case called before him on 15 December it appeared to him that the trial could not reasonably be accommodated within the assize. The Crown agreed and the procurator fiscal depute was reluctant to start a trial which was likely to spill into the period between Christmas and New Year but explained that the Crown were in a position to do so. The appellant’s solicitor insisted on the trial proceeding, however, the sheriff decided ex proprio motu to adjourn the trial until a sitting commencing in January 2017. Having intimated this decision he invited the Crown to move for an extension of the 12 month period which was granted, despite opposition from the appellant’s solicitor. In justifying his decision the sheriff stated that it was due to no fault on the part of the Crown that the trial did not proceed and he said that he had little difficulty in concluding that if the Crown had made the motion based on his reasoning he would have been satisfied that sufficient reason had been shown to support it. It was submitted here on behalf of the appellant that the Bill should be passed as the sheriff had failed to properly take into account the history of the case and there was no proper basis for the sheriff to adjourn the trial and extend the time bar in light of the history of the case. On behalf of the Crown it was submitted that the sheriff had correctly identified the two stage test in HMA v Swift 1985 SLT 26 and that, generally, the court at first instance is best placed to consider the issue having regard to all the relevant considerations. It was further submitted that it was the sheriff who had adjourned the case ex proprio motu. It was conceded on behalf of the Crown that the time line which disclosed significant periods of inactivity in relation to the lack of progress in relation to obtaining MM’s evidence could not be excused. Here the court passed the Bill challenging the sheriff’s decision to adjourn and allowed the appeal challenging his decision to extend the time bar. The court observed that whilst the sheriff had a wide discretionary power it was necessary for all of the relevant circumstances to be considered which the sheriff here had failed to do. In particular, insufficient account had been taken of the pre-petition procedure and the conduct of the Crown during 2016. By adjourning the trial ex proprio motu the Sheriff had in effect extended the time bar and as such ought to have considered the full history of the case and that the delay was largely as a result of failings on the part of the Crown and that insufficient reason had been shown which justified an extension.