Man accused of having indecent images of children loses appeal against time-bar extension

The Criminal Appeal Court refused the appeal after ruling that the sheriff applied the correct test and could not be criticised in exercising his discretion as he had considered all the relevant factors before reaching his decision.

Lord Bracadale, Lord Drummond Young and Lady Clark of Calton heard that the appellant Christopher Rodgers was indicted at Airdrie Sheriff Court on a charge of contravening sections 52 and 52A of the Civic Government (Scotland) Act 1980 in respect of indecent images of children.

Having appeared on petition in December 2014 and admitted to bail, he was indicted for trial in October 2015, but the first diet was continued on defence motion and then adjourned until January 2016 to allow further time for defence preparation, with the 12-month time bar extended to the end of that month.

At the trial diet the defence made a motion to lodge late an inventory of productions and a list of witnesses, which related to fresh material said to be in respect of the purchase of the laptop which had been seized by the police, as the appellant’s position now was that the images must already have been on the laptop when he purchased it online from Amazon.

In response the Crown moved for an adjournment of the trial until March 2016, a motion which was unopposed, in order to investigate the new matter raised by the defence and time bar was extended until 1 April 2016.

At the first diet on 15 March 2016 the Crown moved for a further adjournment of the trial because investigations into the new matter were not complete, as it was still making enquiries with the Cybercrime Unit and awaiting the results of checks of bank accounts.

Although the motion was opposed it was granted and the trial was adjourned to the sitting commencing 23 May 2016 with a first diet on 10 May, with the time bar extended until 3 June.

At the first diet on 10 May the Crown made a further motion to adjourn the trial to the sitting commencing 20 June and the sheriff granted the motion and extended the time bar until 24 June, but that appellant appealed against that decision.

In seeking the adjournment and extension on 10 May the Crown submitted to the sheriff that the new matter had first been raised on 8 January 2016, three days before the trial diet, and that it required further time to complete its investigations.

But the appellant said the case had had severe consequences for him, as had lost his employment and experienced difficulty in obtaining new employment, with consequential financial difficulties.

He wanted the matter to be drawn to a conclusion as soon as possible and the Crown had had more than enough time to complete the investigations.

Applying the two stage test in Swift v Her Majesty’s Advocate 1984 JC 83 and Early v Her Majesty’s Advocate 2007 JC 50, the sheriff concluded that the Crown had shown sufficient reason for the extension of time bar.

He noted that the need to carry out further investigations resulted from the appellant’s contention, advanced for the first time in January 2016, that his laptop had been supplied by Amazon with the incriminating material already on it.

Although the investigations had proved time consuming the sheriff considered that the Crown could not reasonably be criticised for the length of time they have taken.

In relation to the second stage, namely, whether to exercise his discretion to grant the extension, the sheriff had regard to the concerns of the appellant and the public interest in the prosecution of serious offences, as well as the procedural history of the case.

However, before the appeal court the appellant argued that the Crown had not shown sufficient reason.

There was a question as to whether the enquiries were necessary, but if they were necessary the length of time they had taken was “unexplained and unjustified”.

In relation to the exercise of discretion, it was submitted that the charges were “not of the utmost gravity,” as the number of images was “not large”.

Further, the appellant had lost his previous employment and, although he had secured temporary employment, there were ongoing financial consequences for him.

The advocate depute submitted that the investigations were necessary because if the defence position was well-founded the prosecution could not continue – and it was “necessary in the public interest and the interest of the accused to investigate the matter thoroughly”.

Because of various difficulties which had been encountered, the inquiries took longer than expected, but he sheriff had applied the correct test and the exercise of his discretion was not open to criticism.

Refusing the appeal, the judges observed that the sheriff approached the application by applying the two-stage test in Swift.

Delivering the opinion of the court, Lord Bracadale said: “In considering the first stage he addressed the question as to whether the Crown had shown sufficient reason which might justify the extension. He identified the reason why the Crown required a further adjournment and extension and he explained in detail the enquiries which the Crown had carried out and the difficulties which had been encountered. We agree with the advocate depute that the Crown were bound to investigate the new line of defence and it is clear that practical difficulties were experienced in the course of the investigation.

“In relation to the second stage of exercising discretion at this stage a judge will take into account considerations such as the nature and seriousness of the charges, the public interest, the presence or absence of any prejudice to the accused and the length of the extension sought. We are satisfied that in the exercise of his discretion the sheriff considered all the relevant factors and we cannot criticise him in that regard.”