APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C369/99
OPINION OF THE COURT
delivered by LORD COULSFIELD
NOTE OF APPEAL
under section 65(8) of the Criminal Procedure (Scotland) Act 1995
COLIN BRYSON CAMPBELL
PROCURATOR FISCAL, Stirling
Appellant: M. Scott; Virgil M. Crawford
Respondent: Bell, Q.C., A.D.; Crown Agent
26 August 1999
This is an appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995. The appellant first appeared on petition at Stirling Sheriff Court on 6 July 1998. The charges against him at that time were charges of assaulting a woman to her injury and assaulting her with intent to rape. Both offences were said to have occurred on 4 July 1998. The appellant was released on bail. On 11 December 1998, his agents received a letter from the procurator fiscal in which it was stated that, while further proceedings could not be ruled out, the Crown did not at present anticipate any. The reason for this attitude on the part of the Crown was that there was no witness to corroborate the complainer's account of the events on 4 July 1998 and no forensic or other evidence from which corroboration could be obtained. On 19 February 1999, the appellant's bail order was discharged.
On 4 May 1999, the appellant again appeared on petition at Stirling Sheriff Court. On this occasion, he was charged with, firstly, indecently assaulting a 14 year old girl, secondly assaulting a 15 year old girl with intent to rape her, and thirdly, an attempt to pervert the course of justice. The charges all related to events on 30 April 1999. The Crown position was that, evidentially, these charges were capable of standing on their own. However, when the police reported to the procurator fiscal, they referred to the earlier incidents on 4 July 1998. The procurator fiscal retrieved the papers in relation to the earlier charges and reported the whole matter to Crown Office who instructed him to apply for an extension of the 12 month time limit in respect of the charges relating to 4 July 1998. Technically, we were informed, it might have been possible for the Crown to have proceeded on all the charges, both the old and the new, before the expiry of the time limit but it was obviously unlikely that, in practice, it would be possible to do so. The application for an extension under section 65(3) of the 1995 Act was presented on 3 June 1999 and heard by the sheriff on 23 June 1999.
In the meantime, the appellant had been released on bail on conditions which included that he should be available to enable enquiries to be made and that he should attend when required for an identification parade. The appellant left the bail address and disappeared for some time. However, before a warrant was actually obtained for his apprehension he presented himself at Tadcaster Police Station in Yorkshire stating that he thought there might be a warrant outstanding for him. He was brought back to Stirling and appeared on a further petition which included a charge of contravention of the conditions of bail. He was later fully committed on that petition and remanded in custody. The 110 day period is due to expire on 28 September 1999.
When the application for the extension of time was heard before the sheriff, a number of issues, including an alleged devolution issue, were argued before the sheriff. The sheriff rejected the appellant's arguments and these issues were not raised in the present appeal. Having considered the whole circumstances, the sheriff decided to grant the application for extension of time. He says, in particular,
"It was only after the events of 30 April 1999 that, because of the similarity of these allegations, the possibility arose of the Moorov doctrine supplying the corroboration that had been lacking until then. The Crown's attention to the earlier incident was drawn in the police report of 4 May 1999. There does not appear to have been any delay in looking out the earlier papers, from which it was immediately clear that Moorov could apply. The procurator fiscal sought the advice of Crown Office and instructions were subsequently received that an application should be made for an extension of the 12 month time limit so that an indictment could be prepared to include the July 1998 allegations along with the new charges. I do not think that the Crown can be criticised about the time it took to present this application. Even so, and contrary to the facts in Stewart v. H.M.A. (1993 S.C.C.R. 1010) the application was still made before the expiry of the time limit. Nor do I think the Crown can be criticised for not protecting themselves by serving an indictment in any event. Firstly, there is an inevitable tension between the need to serve an indictment in relation to the July 1998 charges so that the trial can commence within the 12 month period and the need to investigate and prepare the new charges. While the seriousness of the charges may be irrelevant to whether an extension should be granted, it is in my respectful view an important factor when considering whether the Crown should be pressurised into serving an indictment in relation to the new charges at a far earlier stage than would normally be contemplated and when normal and proper investigation and preparation might be hurried or incomplete. It is the existence of these new charges that provides the foundation for being able to proceed at all in relation to the earlier allegation".
The sheriff then referred to the fact that the appellant had absconded and concluded that in all the circumstances it was appropriate and reasonable to grant a three month extension from 6 July 1999.
On behalf of the appellant it was submitted that the sheriff had erred. There had been insufficient weight given to the delay on the part of the Crown and to its decision in relation to the original charges. The Crown had chosen to put this appellant on petition on the original charges in a situation in which there was no corroboration. The result of that action was that time started running. Their action gave the appellant a right that the matter should be brought to trial within 12 months. That was an important right, and the Crown knew that they would have to bring the matter to trial within that period. The Crown did not have to put the appellant on petition in July 1998 and there was no explanation as to why it was thought necessary to do so. The effect of the Crown letter in December 1998 was that the Crown had put the case on the shelf and it was wrong if the Crown were then able to take it out again. The sheriff had not applied the proper two stage test and there was no trace of an exercise of discretion on his part.
For the Crown, it was submitted that the sheriff had correctly identified the cause which made an extension necessary, namely the fact that the new charges had come into existence. It had been accepted that there was insufficient evidence initially to support the July 1998 charges and the letter of 11 December had been properly written. The appellant had contributed to the problem by his failure to report or attend an identification parade. The essential feature, however, was that this was a case in which the evidence necessary to allow a trial to proceed on the original charges had come into existence only during the 12 month period: it was not a case in which evidence had been discovered late in the 12 month period.
It is, we think, true to say that, if the Crown choose to put someone on petition in a situation in which there is insufficient evidence to justify proceeding to trial, then they must know that time starts to run, with the result that investigation and preparation of the case should proceed in such a way as to enable it to come to trial within the 12 months. Accordingly, if the situation were simply that evidence necessary to support the original charges had not been found until such a late stage as to require an extension of the time limit, a difficult question might have arisen. The situation in this case is, however, different. What happened was that the material necessary to supplement the original charges, by reference to the Moorov doctrine, only came into existence at the end of April 1999. That, we think, can be described as a cause potentially justifying an extension of time. The sheriff does not expressly describe the situation in those terms but he does draw attention to the importance of the fact that the new charges only came about late in the 12 month period. Having made that point, the sheriff considered the whole circumstances and came to the conclusion that an extension was justified. In our view, the sheriff weighed up all the circumstances properly and correctly and there is no reason to differ from his conclusion that the extension should be granted. This appeal is therefore refused.