Her Majesty’s Advocate v. A.D. [2018] HCJAC 2

Crown appeal against decision of judge at first instance to refuse Crown motion to amend section 288BA docket:- The respondent was indicted on 9 charges of historical indecency. Charges 1, 2 and 3 related to behaviour towards PC. There was also a docket relating to alleged lewd and libidinous behaviour towards PC in London. Charges 1, 2 and 3 were time-barred on 16 July 1998 as the appellant had appeared on petition in relation to those charges 12 months previously. On 19 January 2016 the respondent appeared on petition in relation to alleged offences against PC, AVD and JAD. On 17 November 2016 an indictment was served upon the respondent. The indictment contained the nine charges, including charges 1, 2 and 3 specifying sexual offences against PC. On 12 December 2016 the Crown sought a retrospective extension of the 12 month time-bar in relation to charges 1, 2 and 3 in terms of section 65 of the Criminal Procedure (Scotland) Act 1995. On 2 February 2017 Lord Burns refused to grant the retrospective extension. In July 2017 the Crown indicated that they intended to call PC to give evidence relating to charges 1, 2 and 3 for evidential purposes only and to invite the jury to accept her evidence formed part of a single course of criminal conduct, along with the evidence of AVD, JAD and AD, systematically being pursued by the respondent. The defence thereafter lodged a minute objecting to the admissibility of the evidence the Crown sought to adduce from PC in relation to charges 1, 2 and 3. Lady Scott subsequently ruled that the indictment could not proceed in a form which contained the time-barred charges 1, 2 and 3, as to do so would be incompetent, however, the issue of section 288BA dockets was raised. On 26 July 2017 the Crown made a motion to amend the indictment by deleting charges 1, 2 and 3 and amending the docket to the indictment by inserting the deleted charges in paragraphs 2, 3 and 4 of the docket. The motion was opposed, and was continued to 25 August 2017 when Lord Glennie refused the Crown motion. Lord Glennie’s view was that given charges 1, 2 and 3 were time-barred section 65(1A) prevented the inclusion of those matters in a docket, since the docket was part of the indictment. The Crown appealed. It was submitted on behalf of the Crown that the Crown was entitled to lead and to rely upon the evidence which was proposed to be in the docket unless that evidence had been unfairly obtained. Whilst the respondent could not be prosecuted for the alleged offences and he was not being proceeded against the Crown was entitled to use that evidence where it was relevant and admissible in relation to the other charges. It was submitted on behalf of the Crown that the evidence was admissible, fair notice being given with the inclusion of the allegations in dockets and relevant, it being permissible to use evidence led on the docket to be used for mutual corroboration of the charges in the indictment. In the event that the court considered that the evidence could be led by the Crown it was submitted that it would not amount to oppression as had been contended on behalf of the respondent. On behalf of the respondent it was submitted that Lord Glennie’s decision was correct and the Crown appeal should be refused. Here the court considered the issue of time-bar in section 65 and the docket procedure in section 288BA which had not previously been decided upon by the court. The court decided that the Crown appeal should be allowed and reversed Lord Glennie’s decision and allowed the Crown motion to amend the indictment by inserting paragraphs 2, 3 and 4 to the docket allowing the Crown to lead the evidence of PC in relation to what formerly had been charges 1, 2 and 3. The court considered the construction of sections 65 and 288BA read in the context of the 1995 Act as a whole and held that it would not be competent to seek to prosecute the respondent on an indictment containing charges which substantially were the time-barred charges. However, section 288BA(4) extended to any act or omission which “if it were instead charged as an offence” could not competently be dealt with by the court in which the indictment was proceeding, for example, where there had been alleged criminal conduct occurring outwith the jurisdiction (as seen in Lauchlan and O’Neill v HMA (No 2) 2015 JC 75). The court considered that to allow the evidence contained in a docket to be led does not amount to the respondent being “tried on indictment” or “proceeded against on indictment” as the Crown does not seek to have the respondent convicted or sentenced in respect of any criminal conduct referred to in the docket relating to allegations involving PC. In relation to the question of whether it would be oppressive for the Crown to proceed in such a way the court considered that it could not say that a fair trial could not take place as paragraphs 2, 3 and 4 of the amended dockets do not involve a trial of the respondent in respect of those matters.