Man accused of historic child sex offences fails in appeal against ‘seven-year extension of time’

The appellant, who first appeared on petition in respect of two charges of lewd and libidinous conduct against two young girls aged six and eight in January 2007, before appearing in respect of a second petition alleging assault and rape argued in September 2013, argued that an extension to a date some seven-and-a-half years from his first appearance would be “extraordinary”.

However, the Criminal Appeal Court ruled that it was in the “interests of justice” that the prosecution should be allowed to proceed.

The Lord Justice Clerk, Lord Carloway, sitting with Lord Bracadale and Lady Clark of Calton, heard that the appellant “D McL” appeared on petition in respect of the first two charges on 26 January 2007, but no formal steps were until the application to extend the time limits over six years later.

The court was told that on 31 January 2007 the police wrote to the procurator fiscal identifying “evidential difficulties” in respect of the charges, primarily due to the time gap between the offences relative to the application of mutual corroboration.

Further enquiries failed to uncover additional witnesses or forensic evidence, but in May 2007 the police advised the fiscal that another child, NA, had made allegations which were similar to those in the petition, but she was adamant that she would not assist and would neither be a witness nor provide a statement.

At about the same time, on 28 May 2007, NA emailed her social worker with details of the alleged abuse at the hands of the appellant, including sexual intercourse with her from the age of 14.

The email was passed to the police but no further investigation was carried out and the time limits duly expired on 26 December 2007 and 26 January 2008 with no indictment served.

Then, almost five years later, a child protection enquiry was instigated regarding a daughter of the appellant, E McL, who decided she would testify against the appellant.

Her statement was reflected in a second petition on which the appellant appeared on 19 September 2013, which contained six charges of lewd and libidinous conduct, assault and rape involving NA and two other complainers, neither of whom had featured in the first petition, in 2000 and 2009.

The appellant was this time fully committed and released on bail on 26 September 2013.

On 25 September 2013, the Crown lodged the application for extension of time in respect of the first petition, which was granted by the sheriff at Perth on 28 November 2013 “on cause shown”.

The 11-month time limit was extended from 26 December 2007 to 19 August 2014 and the 12-month time limit from 26 January 2008 to 19 September 2014, meaning the time limits in the first petition would now be due to expire on the same dates as the time limits in the second petition.

However, the appellant argued that the sheriff erred in finding that there had been no error on the part of the Crown.

The appellant was entitled to a trial within a year and “scrupulous adherence” to the time limits was required, but the period of extension sought was “unique”.

It was submitted that the Crown had proceeded in an “unsatisfactory and inexcusable manner”.

It could not have been the intention of Parliament to extend the time limits to such an “inordinate” degree and the sheriff had failed to give proper consideration to that fact.

It was not sufficient to state that the extension was dictated by circumstances and necessary in order to combine the charges contained in both petitions.

Refusing the appeal, the court said it had given the case “particularly anxious scrutiny” due to the “undoubtedly unusual” length of time involved, but concluded that the “broader interests of justice” required “serious allegations” to be tried.

The judges noted that it was not disputed that a two-stage test applied, namely, whether a sufficient reason exists which might justify the grant of an extension and whether, in the exercise of the court’s discretion in all the circumstances of the case, an extension should be granted for that reason.

Delivering the opinion of the court, the Lord Justice Clerk said: “The sequence of events in 2007 has been adequately explained and the court accepts that the subsequent delay derives from the unavailability of sufficient corroborative evidence to proceed at that time.

“The court does not consider that any fault can be attributed to the Crown in this regard. In these circumstances, where what has effectively happened is that new, potentially decisive, corroborative evidence has emerged, the first stage of the test has been met.

“As to the second stage, there is no criticism to be made of the sheriff’s exercise of discretion in favour of granting the extension for the reasons given. The sheriff took all relevant circumstances into account, including the length of time involved.”

He added that in all cases the court will require “sufficient justification” to outweigh prima facie “unacceptable delay” in bringing an accused to trial beyond the statutory time limits.

“It is in the interests of accused persons, complainers, witnesses and the wider public that cases are tried within what statute has declared to be a reasonable time. The broader interests of justice, however, require that serious allegations may be tried even at a late stage, rather than go unprosecuted, subject to the overriding requirement of fairness,” Lord Carloway said.

In the present case, the judges concluded that it was “in the interests of justice that these charges should be allowed to proceed.”

The Lord Justice Clerk added: “The court does not envisage that applications for extensions of time of this magnitude will arise other than in extraordinary cases. Nevertheless, this court is unable to find fault in the sheriff’s discretionary decision in respect of the second element of the test. Accordingly, although the matter is not without difficulty, the appeal is refused.”