Alleged benefit fraudster wins appeal against decision to extend timebar

The Appeal Court of the High Court of Justiciary allowed the appeal by Amanda Cowan after ruling that the Crown had failed to provide a “sufficient reason” to grant the extension.

Timebar

The Lord Justice Clerk, Lady Dorrian (pictured), sitting with Lord Menzies and Lord Turnbull, heard that the appellant was originally indicted to a first diet at Dundee Sheriff Court on 28 March 2017, charged with a contravention of section 35 of the Tax Credits Act 2002.

Prior to the first diet a section 71 minute challenging the relevancy and specification of the indictment had been served, following which the Crown intimated that the indictment would not call on that date.

Subsequently, a fresh indictment in almost identical terms was served with a first diet fixed for 2 May and a trial for 15 May, but a second, identical, section 71 minute was lodged.

On 2 May, unopposed Crown motions to adjourn the trial and to extend the 12-month timebar to 18 August were granted and a continued first diet was fixed for 18 July with 31 July as the trial diet.

At the continued first diet, at which the indictment remained in its original form, the sheriff was again asked to continue the diet, but refused to do so and after hearing submissions he upheld the section 71 minute and deserted the indictment pro loco et tempore.

Sufficient reason

Thereafter, the Crown sought a further extension of the timebar in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995, which was granted to 18 October 2017, but the appellant challenged that decision.

Counsel submitted that the Crown had provided “no sufficient reason” to grant the extension; no reason was contained in the sheriff’s report.

Under reference of HMA v Swift 1984 JC 83, the sheriff indicated that he “treated the first stage as conceded.”

Both parties submitted that there was no such concession, nor was the argument advanced on a basis which would entitle an inference of concession to be drawn.

Crown at fault

In any event, the appeal judges considered that it was not a matter for concession by parties but a matter upon which the court required to be satisfied.

Delivering the opinion of the court, the Lord Justice Clerk said: “It is not clear from the report what the sheriff considered to be the relevant reason for the purposes of the first part of the test, but it cannot be other than fault on the part of the Crown.

“The identification of the reason is an important factor at both stages of the relevant test. As the court pointed out in Early v HMA 2007 JC 50, if the reason is not one for which the Crown is responsible, consideration of whether the reason was a sufficient one would require the court to address the interests of parties other than the Crown.

“If the reason is error on the part of the Crown, the court requires to consider what the error was and why it occurred. Only at the second stage is it appropriate to consider the nature of the charge, the public interest, the issue of potential prejudice and similar matters.

“At the first stage, it is not appropriate to proceed on the basis of the error being ‘major’ or ‘minor’: rather the court requires to consider how the error came to be made; how readily it could have been avoided or detected; the circumstances in which it came to light; whether the defence were aware of it and failed to draw it to attention. In the present case, no consideration was given to any of these issues.”

Lady Dorrian added: “The Crown had indicted the appellant twice, on a virtually identical libel, despite the defence drawing to their attention the deficiencies in the indictment which eventually led the sheriff to dismiss it. They failed to address these issues, despite having already been granted the benefit of one extension of the time bar.”

“The advocate depute submitted that it would be sufficient reason to grant an extension that it would enable the Crown to prepare an indictment which provided sufficient relevancy and specification, in the face of an original indictment which had been so lacking in these as to be dismissed. Given the way in which this matter has arisen we cannot accept that.”

In Early the court pointed out that “… it is not enough for the Crown merely to show that an error was made. It must explain why it was made, and, before any question of discretion arises, the explanation must satisfy the court that the error is capable of being excused”.

In the present case the judges were not so satisfied and therefore granted the appeal.