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Cite as: 2005 SCCR 613, [2005] ScotHC HCJAC_99, [2005] HCJAC 99

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Allan v. Her Majesty's Advocate [2005] ScotHC HCJAC_99 (07 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Nimmo Smith

Lord Drummond Young

[2005HCJAC99]

XC13/05

OPINION OF THE COURT

delivered by LORD NIMMO SMITH

APPEAL AGAINST EXTENSION OF TIME

under section 65 of the Criminal Procedure (Scotland) Act 1995

ALEXANDER ALLAN

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

_____________

Appellant: Shead; Trainor Alston, Coatbridge

Respondent: Lamb, Q.C., A.D.; Crown Agent

7 July 2005

[1] This is an appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995 against the grant by the Sheriff at Kilmarnock of an application by the Procurator Fiscal, Kilmarnock under sub-section (3) of that section for an extension of the period of 12 months specified in sub-section (1) in respect of certain proceedings against the appellant. The appellant had appeared on petition at Kilmarnock Sheriff Court on 12 March 2004, when he was committed for further examination and released on bail. The charges in the petition (hereinafter referred to as "the Kilmarnock petition") were as follows:

"(1) on 1 October 2003 and 9 December 2003 at Wallace Street, Kilmarnock you ALEXANDER LEONARD ALLAN did pretend to James Johnston, 88 years old, 12 Wallace Street, Kilmarnock that work to the value of £34,450 had been carried out on his roof when in fact as you well knew only minimal work had been carried out to a value of £63 or thereby and did thus induce said James Johnston to pay you cheques to the value of £34,450 and did thus obtain £34,450 of money by fraud; and

(2) on 9 February 2004 and 10 February 2004 at 12 Wallace Street, Kilmarnock or elsewhere you ALEXANDER LEONARD ALLAN did pretend to James Johnston, 88 years old, 12 Wallace Street, Kilmarnock that you required £8,500 to complete work on his roof, work that you had not carried out and did thus attempt to induce James Johnston to issue you with a cheque for £8,500 and did thus attempt to obtain £8,500 in monies by fraud."

[2] In addition to his appearance on the Kilmarnock petition, the appellant had appeared on petition on three other occasions. On 11 August 2004 he appeared on petition at Glasgow Sheriff Court was committed for further examination and was thereafter liberated before full committal. The petition (hereinafter referred to as "the first Glasgow petition") contained three charges, in the following terms:

"(1) on various occasions between 20 November 2003 and 28 November 2003, both dates inclusive at 466 Kilmarnock Road, Glasgow ALEX LEONARD ALLAN did pretend to Rhoda Marjory Ritchie, aged 77, residing there that work to the value of £34,650 had been carried out on her roof the truth being only minimal work had been carried out and did thus induce said Rhoda Marjory Ritchie to pay you cheques to the value of £34,650.00 and did thus obtain £34,650.00 by fraud

(2) on various occasions between 20 July 2004 and 10 August 2004, both dates inclusive at 115 Balshagray Avenue, Glasgow ALEX LEONARD ALLAN did pretend to Samuel Hoey, aged 82 years, residing there that he required repair work to be carried to the roof area of said dwelling house and that he had to purchase materials to carry out said work to the value of £29,950 the truth being that no such work was required and did thus induce said Samuel Hoey to hand over cheques to the value of £29,500 and did thus obtain £29,500 by fraud

ALEX LEONARD ALLAN did commit this offence while on bail, having been granted bail on 12 March 2004 at Kilmarnock Sheriff Court

(3) on 24 July 2004 at 115 Balshagray Avenue, Glasgow ALEX LEONARD ALLAN did pretend to Samuel Hoey, aged 82 years, residing there that he required repair work to be carried out to the roof area of said dwelling house and that the cost of labour to carry out said work was £40,000, that he was carrying out said work and did attempt to obtain £40,000 from said Samuel Hoey for said work the truth being that no such work was required and did thus attempt to induce Samuel Hoey to give him a cheque to the value of £40,000 and did thus attempt to obtain £40,000 by fraud

ALEX LEONARD ALLAN did commit this offence while on bail, having been granted bail on 12 March 2004 at Kilmarnock Sheriff Court

Alex Leonard Allan did commit this offence while on bail, having been granted bail on 16 January 2004 at Edinburgh Sheriff Court"

[3] On 25 August 2004 the appellant and two co-accused appeared on petition at Ayr Sheriff Court and was granted bail. The petition (hereinafter referred to as "the Ayr petition") contained one charge, in the following terms:

"(1) having formed a fraudulent scheme to obtain £3500 by promising to carry out necessary repairs and overcharging for said repairs in pursuance of said scheme, they ALEXANDER LEONARD ALLAN, WILLIAM MCALLISTER McPHEE and ANDREW CUMMINGS did whilst acting together, on or between 01 August 2004 and 20 August 2004, both dates inclusive, at 15 Ayr Road, Dunure, carry out unnecessary work of a minimal value and cause Catherine Cooper, aged 78, residing there to pay them money for unnecessary repairs and did obtain said £3500 by fraud

ALEXANDER LEONARD ALLAN did commit this offence while on bail, having been granted bail on 12 March 2004 at Kilmarnock Sheriff Court

WILLIAM MCALLISTER MCPHEE did commit this offence while on bail, having been granted bail on 15 March 2004 at Glasgow Sheriff Court and 15 June 2004 at Falkirk Sheriff Court."

On 7 December 2004 the appellant and a co-accused appeared on petition at Glasgow Sheriff Court and was committed for further examination and remanded in custody. The petition (hereinafter referred to as "the second Glasgow petition") contained three charges, of which the first two were in the following terms:

"(1) between 19 November 2004 and 6 December 2004 both dates inclusive at 125 Stirling Drive, Bishopbriggs, Glasgow ALEXANDER ALLAN AND HUGH MCPHEE did pretend to Alex Livingstone, aged 81 years old, residing there, that they were carrying out works and repairs to the value of £10,5000, the truth being as they well knew that they had not carried out works to that value but to a true value of £200 or thereby and did this induce said Alexander Livingstone to deliver to them in payment for said works and repairs money to the value of £2000 and a cheque to the value of £8,000 and did this obtain £2000 in money and a £8,500 cheque by fraud

you ALEXANDER ALLAN did commit this offence while on bail, having been granted bail on 6 January 2004 and 28 October 2004, both at Edinburgh Sheriff Court, 12 March 2004 at Kilmarnock Sheriff Court and on 1 September 2004 at Ayr Sheriff Court

you HUGH MCPHEE did commit this offence while on bail, having been granted bail on 8 November 2004 at Hamilton Sheriff Court;

(2) on 23 September 2004 at 15 Brandon Drive, Bearsden, Glasgow ALEXANDER ALLAN did pretend to Eric Andrew, aged 74 years, residing there that you were carrying out works and repairs to the value of £650, the truth being as he well knew that he had not carried out said works and repairs to that value and did thus induce said Eric Andrew to deliver to him in payment for said purported works and repairs a cheque for the sum of £450 and did thus obtain £450 of money by fraud

ALEXANDER ALLAN did commit this offence while on bail, having been granted bail on 6 January 2004 and 28 October 2004, both at Edinburgh Sheriff Court, 12 March 2004 at Kilmarnock Sheriff Court and on 1 September 2004 at Ayr Sheriff Court"

The third charge was directed against the co-accused alone.

[4] The Procurator Fiscal averred that the modus operandi of the frauds in the four petitions which were alleged to have been committed by the appellant, whether alone or acting along with others, was the same in respect that he was said to have induced old or elderly people to believe that they required to have roof repairs carried out to their property which were not carried out or were not necessary and for which he charged excessive sums of money. So far as the Kilmarnock petition was concerned, the case had been investigated and precognosced by the Procurator Fiscal, who was desirous of proceeding on indictment. The Procurators Fiscal at Glasgow and Ayr continued to investigate the frauds specified in the first and second Glasgow petitions and the Ayr petition. The police had been directed by the Procurator Fiscal to make further inquiry in respect of which further reports on four further similar charges from different jurisdictions were expected by the Procurators Fiscal at Glasgow and Ayr. It was desirable and in the interests of justice that the charges against an accused be dealt with, where possible, on one indictment. The time limit for the commencement of proceedings in respect of the Kilmarnock petition was 12 March 2005 and the last date upon which an indictment might be served to comply with that time limit was 3 February 2005. The time limit for the commencement of proceedings in respect of the charges in the first Glasgow petition was 11 August 2005, in respect of the Ayr petition was 25 August 2005 and in respect of the charges in the second Glasgow petition was 7 December 2005. The Procurator Fiscal was desirous that all the foregoing charges be included in the same indictment. The Procurators Fiscal at Glasgow and Ayr would not, however, have concluded their inquiries prior to the last date on which the case within the Kilmarnock jurisdiction would require to be indicted. In these circumstances application was made for an extension of the twelve month period applicable to the charges in the Kilmarnock petition to 25 August 2005 or such other date as to the Sheriff should seem proper.

[5] Having heard the parties' representatives, the Sheriff granted the application of the Procurator Fiscal. The Sheriff gave the following reasons for her decision:

"In coming to a decision in this matter I have firstly considered whether the Crown have shown a sufficient reason which might justify the granting of an extension. It is my view that they have done so. In the instant case, it is accepted by the Crown that they have a sufficiency of evidence to proceed on the Kilmarnock petition alone. The reason as to why the extension is sought is that similar crimes were allegedly committed by the Appellant as late as December 2004. If, as the Crown suggest, the charges should be heard together, it would be unreasonable to expect the Crown to precognosce these matters in time for the commencement of the Kilmarnock case. Whilst I accept that the Appellant has a right to the expeditious disposal of his case, the case of Johnston v HMA 1997 SLT 64 makes it clear that it is in the public interest to have analogous matters dealt with together. All four petitions here are analogous. They should therefore be conjoined.

I accept that in terms of HMA v Fitzpatrick 2002 SCCR 758 the question of prejudice or otherwise to the Appellant is a matter which can be taken into account. The Crown here says that there will be no prejudice. The Appellant already knows the basis of all charges against him in all four petitions. The Appellant, however, suggests that he is prejudiced by having all matters dealt with under the one indictment in that there will be delay in bringing the matter to Court.

It is my view that it is in the interests of justice for all matters to be heard together. The instant case is similar to the case of Campbell v Cameron Ritchie 1999 SCCR 914, where a further charge only came into existence at a later stage and was allowed to be heard together with an earlier similar charge. Indeed in Campbell v Cameron Ritchie the earlier charge could not proceed without the later charge to corroborate it. That is not so in the Kilmarnock petition. The Moorov doctrine, whilst not essential to the Kilmarnock petition, is a factor which the Crown may wish to put to the jury.

In all the circumstances therefore, I accept that the Crown has shown sufficient reason to justify an extension of the time sought. The Crown wish to have one indictment narrating the Appellant's entire course of conduct. The Crown has a wide discretion as to the nature and number of charges included in the same indictment.

The Crown have shown sufficient reason to justify an extension and I am prepared to exercise my discretion to grant that extension.

It appears to me that the Crown have done all that can be expected of them by way of timeous preparation of these cases. The Kilmarnock case could in fact proceed on its own but having considered the argument by the Crown that it is in the interests of justice for all the charges to be heard together I granted the Crown's motion for an extension until 25 August 2005. This should allow precognition of all matters and timeous serving of one petition incorporating all charges.

In considering whether to exercise my discretion I have taken into account that there has been no undue delay on the part of the Crown and the Appellant is already aware of all the charges in the various indictments."

[6] In presenting the appeal, counsel for the appellant submitted that there was a clash of values between the appellant's right to be tried within the time limit and the Crown's interest in having all charges brought together. In counsel's submission the desire of the Crown to bring all the charges together could not be a sufficient reason for extension of the time limit in respect of some of them. In Mejka v HM Advocate 1993 SCCR 978 it was held that the right conferred on an accused person was a very important one, of which he ought not to be deprived unless sufficient reason had been put forward by the Crown. In that case the Sheriff had given inadequate weight to the fact that the Crown could have proceeded against the accused alone at each of three trial diets. The circumstances in the present case were more compelling, but on the primary question the two cases were on all fours with each other. The desirability in the interests of convenience of keeping to a minimum the number of trials, whether against one accused on more than one charge or against more than one accused on one or more charges, could never outweigh the interests of the accused in being brought to trial within the statutory time limit. In Stenton v HM Advocate 1998 SCCR 594 it was held that the general rule, laid down in the public interest, was that a trial was to commence within the time limit and the Judge had to consider whether there was a reason for seeking the extension of a kind which was capable of justifying a departure from that rule. Only then did the next question arise of whether, in the exercise of his discretion, the Judge should allow the motion. In counsel's submission the desire to bring all charges against an accused together was not a reason for seeking such an extension. Since cause had not been shown, as required by section 65(3), the question of the Sheriff's exercise of her discretion did not require to be considered. In any event the Sheriff had not exercised her discretion appropriately. The application was premature. The Sheriff could not have properly had in mind the importance of the appellant's right to be tried within the time limit as matters stood in December 2004.

[7] The Advocate Depute submitted that the question of prematurity should have been raised at the time of the hearing of the application before the Sheriff. It was not focused in the grounds of appeal. The Crown would have been open to criticism if they had left the application until the last minute. It was much fairer to the appellant that the matter be dealt with as expeditiously as possible. The intention of the Crown was to bring all outstanding matters together. The starting point was that this was not simply a question of convenience. The Crown had a wide discretion in deciding which charges should be indicted together and which separately: Johnston v HM Advocate 1996 SCCR 806. It was in the public interest that analogous matters should be brought together in the same indictment. This was particularly so where, as was alleged here, the accused had engaged in a course of conduct. The case of Mejka v HM Advocate was not of assistance, since different issues arose where the right of one accused to go to trial at the earliest opportunity was being weighed against difficulties arising from the absence of a co-accused. In the present case the appellant was facing trial on other matters in due course in any event, so the right to a speedy trial on some charges was not as important as the public interest in the prosecution of all analogous charges together. Mejka v HM Advocate was not authority for the proposition that such circumstances could never constitute cause for an extension of the time limit. Gardner v HM Advocate 2002 SCCR 74 was a case in which the desire to indict the accused together was held to be a cause shown within the meaning of section 65(3) to which the Judge was entitled to apply his discretion. In the present case, the mere fact that there was a sufficiency of evidence in relation to the charges in the Kilmarnock petition alone did not preclude the Crown from putting itself in a position of leading other evidence which might bolster the Crown case. There was a course of conduct in terms of character, time and circumstances. Cause had accordingly been shown by the Crown to justify the granting of the application.

[8] In our opinion the Sheriff's approach to this matter cannot be faulted. It is well recognised that it is in the public interest that analogous matters should be tried together where possible. The right of an accused person to be brought to trial within the statutory time limit provided by section 65 of the Criminal Procedure (Scotland) Act 1995 is an important one, but it is not absolute, otherwise there would not be provision in that section for extension of the time limit on cause shown. To describe the right as important means that the time limit should not be extended except for a sufficiently weighty reason. The desire of the Crown to have analogous matters tried together, particularly where they alleged to constitute a course of conduct, may constitute such a reason. In our opinion, in the circumstances of the present case, the Sheriff correctly directed herself in identifying the reasons put forward by the Crown for seeking an extension of the time limit as being capable of constituting a cause within the meaning of section 65(3) and thereafter in deciding, in the exercise of her discretion, that the reasons advanced by the Crown outweighed the interest of the accused in the prevention of delay in being brought to trial on the charges in the Kilmarnock petition. Moreover, in our view, the Crown cannot be criticised for having decided to make the application at such an early stage; indeed, it is generally desirable that applications of this kind should be made sooner rather than later. In the circumstances of this case the Crown have acted in an appropriate way to secure the efficient disposal of all outstanding charges against the appellant, and it may well be that the proceedings against him will as a result be brought to an earlier conclusion than if there were a series of separate trials.

[9] For these reasons, we have decided that this appeal must be refused.