Historical abuse accused wins appeal against extension of time bar to bring case to trial

The High Court of Justiciary Appeal Court ruled that the lack of progress in the case “lay squarely with the Crown” and the sheriff failed to take into account the protracted history of the proceedings when he decided to adjourn the trial diet in December 2016 for five weeks and the extend 12-month time limit.

Lord Brodie, Lady Clark of Calton and Lord Turnbull heard that the 77-year-old appellant “RW” was indicted in relation to four sexual offences said to have taken place when he was aged between 14 and 20.

The complainers were his two sisters and his sister in law, who were aged between about five and 15 years old at the respective times.

The appellant appeared on petition in January 2015 and the indictment was served on him in September 2015, by which time the complainer in the first two charges, MM, was aged 70 and the other two complainers were aged 66 and 64.

The police investigation began in March 2011 and the accused’s whereabouts were unknown until he was traced to an address in England in December 2013.

In February 2014 the case was reported to the procurator fiscal and by July 2014 all three complainers had been precognosced, but the circumstances of MM, who was disabled and housebound, meant there were difficulties in making arrangements to secure her evidence.

A CCTV link to her home in Mansfield was suggested, but she had no internet access and it was not until late November 2016 when her evidence was eventually taken on commission.

After a first diet in September 2015 there were a further 13 first diets or “continued first diets”, with trial diets fixed for dates within six separate sittings between October 2015 and December 2016 and five extensions of the 12-month time bar period, including the one on 15 December 2016 which was being challenged.

The advocate depute accepted that from the end of 2015 onwards, the only outstanding issue which stood in the way of a trial commencing was the question of how MM’s evidence was to be secured, but that was a problem which had first been brought to the Crown’s attention a year-and-a-half earlier by the reporting officer, was confirmed at Crown precognition in the middle of 2014 and was re-iterated twice by Victim Information and Advice (VIA) during the earlier months of 2015.

On behalf of the appellant it was submitted that the sheriff had statutory authority to adjourn the diet in terms of section 75A(2) of the Criminal Procedure (Scotland) Act 1995, which gives power to adjourn if the court “considers it appropriate to do so”.

However, it was argued that the sheriff was “clearly wrong” in considering that it was appropriate.

The sheriff’s discretion in this case was vitiated by his failure to give proper consideration to the history of the case.

In relation to the extension she submitted that it was granted in order to give effect to the sheriff’s decision to adjourn, but no proper reason for granting an extension had been identified.

The advocate depute provided the court with a document which set out a timeline of the progress of the case, but made no effort to defend the lack of progress which was evident and volunteered that in light of the case history a Crown motion to extend the time bar made at that time could not have been granted.

The appeal judges observed that the whole question of how the vulnerable witness MM’s evidence was to be secured was dealt with by the Crown in a manner which was “simply beyond explaining”.

The court disagreed with the sheriff’s view “that it was not helpful, in the particular circumstances of this case, to pore over the minutes and examine which party’s motion caused the delay that led to the position which the court was in on 15 December 2016”, adding: “The minutes record the case progress, or lack of, and are designed, amongst other things, to provide anyone coming to the case with a history which will inform further decision making. An examination of the court minutes …provided a very clear explanation of the delay which occurred…”

The judges were “satisfied” that the Bill of Advocation challenging the sheriff’s decision to adjourn should be passed and that the appeal challenging his decision to extend the time bar period should be allowed.

Delivering the opinion of court, Lord Turnbull said: “In making the decision to adjourn the sheriff was in effect making a decision to extend the time bar period. In that context it was necessary for him to take account of the whole history and to assess why the case was in the situation in which it was. Had he done so he could only have concluded that responsibility for the previous lack of progress lay squarely with the Crown.

“A proper assessment of the case history would have led him to conclude that no sufficient reason had been shown which might justify an extension. His statement that he could not understand what prejudice the appellant could be said to suffer in our view demonstrates that he failed properly to appreciate the unjustifiable delays to which we have drawn attention and to take account of the important nature of the right which the appellant had and which he had already been deprived of on a number of previous occasions.”