Her Majesty’s Advocate v. Graham Clarke, Lindsay Clarke, Neil Anderson, Marilyn Nixon, Keith Nixon, Yvonne Davidson and Francis Andrews [2016] HCJAC 2

Appeals under section 65(8) of the Criminal Procedure (Scotland) Act 1995:- The respondents were indicted to a preliminary hearing at Glasgow High Court on 3 November 2014 in relation to various charges including inter alia contraventions of the Misuse of Drugs Act 1971. A trial was fixed for 21 September 2015. On 4 September 2015, at a continued preliminary hearing, the trial was adjourned to 12 October 2015. On 5 October 2015, at a continued preliminary hearing, the Crown made an application to extend the 11 and 12 month time limits in terms of section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995. The applications were opposed and the trial judge refused the Crown applications. The Crown appealed against that decision. The circumstances were that the Crown sought to extend the 11 and 12 month time bars to 11 January and 11 February 2016 with a view to the Crown deserting the indictment and re-indicting to include fresh charges against the first respondent. The fresh charges related to new information received by the Crown for charges alleging attempted murder of a James Carroll, wilful or reckless destruction or damage to property, statutory breach of the peace and attempting to pervert the course of justice. James Carroll was an individual whom the Crown stated would transform the case as he would likely undermine the anticipated ‘legitimate business defence’ which was to be put forward. The applications were opposed on behalf of all respondents. The trial judge refused the application. In applying the two stage test as set out in Swift v HMA 1984 JC 83 the trial judge considered that the Crown had failed to show sufficient reason for the extension and, in any event, at the second stage of the test she would not have exercised her discretion in favour of the Crown applications. It was submitted here on behalf of the Crown that the extension was justified as the Crown had obtained additional information of serious new charges when it was too late to indict along with the current charges without the need for an extension of time. It was submitted the trial judge misdirected herself when she described the new charges as very different in nature to the charges on the indictment and arguably collateral as the new charges were likely to have a considerable bearing on the current charges as the first respondent had attempted by violence to obtain false evidence in his support of his defence. In relation to the offers made by the defence to cooperate to include reference to the new information in some way in the present trial, it would not be possible to complete the further work in time to include either an additional charge or a docquet for the current trial. It was submitted on behalf of the respondents that the applications were opposed for the reasons advanced before the trial judge. Here the court refused the Crown appeal. Whilst the court recognised the relevance of the new material to the current indictment the court considered that there was ample time for the new matters to be dealt with within the three months of the current trial. The court considered that the trial judge was correct to hold that the Crown had failed to satisfy the first stage of the Swift test. Whilst not requiring to consider the second stage of the Swift test and the issue of discretion, the court observed that the consequence of the refusal of the extension was not that the Crown would be unable to prosecute serious charges as there was already a trial fixed in relation to serious charges. The court also observed that the trial judge was entitled to consider the issue of prejudice, particularly to the third to seventh respondents, and the trial judge’s indication of how she would approach the question of the exercise of her discretion could not be criticised.