APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Clarke Lord Mackay of Drumadoon	[2012] HCJAC 137 Appeal Nos: XC151/09 XC160/09 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeals by (First) WILLIAM HUGH LAUCHLAN and (Second) CHARLES BERNARD O'NEILL, Appellants; against HER MAJESTY'S ADVOCATE, Respondent: _______

First Appellant: G Considine, J Mulgrew, solicitor advocates; Fitzpatrick & Co., Glasgow

Second Appellant: A Ogg, solicitor advocate; McClure Collins

Alt: Bain QC AD, Pugh; The Crown Agent

5 June 2009

1. Facts

[1] On 10 October 2008 the appellants appeared, at a Preliminary Hearing in the High Court at Glasgow, on an indictment which libelled, amongst other charges, that:

"(2) on 21 June 1997 at 16A Waterside Street, Largs... or elsewhere to the Prosecutor meantime unknown, you... having between 1 March 1993 and 21 June 1997 engaged in criminal sexual activity with [RMcG], born 15 December 1983...then aged between 9 and 13 years, and knowing that [AMcG], his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities did abduct her and detain her against her will within said house at 16A Waterside Street, Largs, and thereafter assault said [AMcG] seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill will towards said [AMcG];

(3) between 21 June 1997 and 1 September 1997...at 16A Waterside Street, Largs and elsewhere in Ayrshire to the Prosecutor meantime unknown, having committed the crime libelled in charge (2) hereof and being conscious of your guilt in respect thereof you...did

(a) remove the body of [AMcG]...from said premises;

(b) transport said body to Largs Beach and conceal same under rocks there;

(c) thereafter recover said body and deposit same in a bin... and transport same onto a boat; and

(d) deposit said bin...and the body...into the sea,

and this you did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice".

The body of the deceased, if she is deceased, has never been found.

[2] According to the Crown, the deceased was a vulnerable alcoholic of low intellect. Her marriage had broken up in February 1993. She had moved to Rothesay, where she had met, and commenced an association with, the appellants. Unknown to her, they began to abuse her son (RMcG), of whom she had custody. They continued to do so until their arrest in 1997 on charges of abusing young boys, including the son. They were convicted of those charges in 1998 and sentenced respectively to eight and four years respectively.

[3] On 14 June 1997, during a weekend's leave from his then residence at a Children's Home, RMcG persuaded the deceased to remove him from the home, contrary to the relative supervision requirement, and go and live with the appellants at the address in Largs. This was the arrangement when, about a week later, the deceased apparently disappeared. However, her disappearance was not reported to the police until 16 February 1998. Thereafter, an enquiry was set up and, on 17 September 1998, the appellants were both detained in connection with the disappearance and on suspicion that they had conspired to murder the deceased. Neither made any comment on the allegations.

[4] Police investigations continued, with intermittent information being provided to the procurator fiscal at Kilmarnock. The deceased's son was, during this time, a suspect but it was difficult, in any event, to obtain a coherent account from him in relation to the events surrounding his mother's departure from the flat in Largs. Eventually, in January 2004, there was a formal police report to the procurator fiscal and on 16 April 2004, following further investigation, the papers were forwarded to Crown Office for consideration.

[5] There was evidence (albeit apparently only in the form of police statements rather than precognitions) that the appellants, the deceased, her son and two others (GMcK and JS) were all in the flat on the evening of the night during which the Crown maintain the deceased was killed. It is not exactly clear which of the three witnesses (McG, GMcK and JS) spoke to which facts, but the Crown appear to have had evidence of an argument between the appellants and the deceased, caused in part because the deceased had become aware of the appellants' abuse of her son. RMcG maintained that, after GMcK and JS had left, Mr O'Neill had said that he and Mr Lauchlan would have to "get rid of her". The three witnesses said that the deceased was not at the flat the next day. GMcK and JS said that, when they returned to the flat the next morning, neither the deceased nor the appellants were there. Their car had also gone. The appellants returned and Mr O'Neill had laughed and said "we've killed her". Mr Lauchlan had intervened and, after saying that they had "cut her up and put her in a curry", had said that they were only joking and that the deceased had simply left in the early hours of the morning. In relation to Mr O'Neill, there was other evidence in the form of an admission to a fellow prisoner in June 1998 and also an admission to one of the complainers in the abuse trial. It was the view of the procurator fiscal that, having regard to the poor quality of the evidence, there was insufficient to have Mr O'Neill fully committed, although he might be placed on petition. It was thought that there was insufficient even to place Mr Lauchlan on petition.

[6] A second report was sent to Crown Office by the procurator fiscal on 31 March 2005. This said that there had been "significant evidential developments" in the form of a statement from another fellow prisoner of the appellants, SC, who maintained that they had both been speaking about the deceased in the past tense and saying that she was at the bottom of a river. In March 2003, Mr Lauchlan had shown SC newspaper clippings relating to the deceased, saying also that he owned a boat at Largs and making a remark which might have been construed as incriminatory. There was some further circumstantial evidence about suspicious movements at Mr Lauchlan's caravan and a fisherman netting a wheelie bin at sea, all at about the time of the disappearance.

[7] The procurator fiscal was concerned about the delay since the original detention of the appellants. He considered that there was sufficient evidence to place both appellants on petition and to have them fully committed. Crown Counsel agreed that there was then a sufficiency of evidence and instructed that both appellants be placed on petition and fully committed. This was done. The appellants were placed on petition on 5 April 2005 and were fully committed on 12 April. Meantime, on 4 April, both had been sentenced to three years imprisonment for travelling to Spain without notifying the police in terms of the Sex Offenders Act 1997.

[8] It is worth noting that a precognition was taken from RMcG in May 2005. He was, by then, twenty one years of age. He spoke to recalling that, on the evening of her disappearance, his mother had been crying because the appellants would not let her leave the flat. RMcG fell asleep. When he awoke the next day, there was no sign of the deceased and the appellants told him that she had left. He purported to remember very little else. In July 2005, a witness, JH, told the police that he had been with Mr Lauchlan in 1997, when Mr Lauchlan pointed to a fishing boat and said "that's where we chopped her up". But he departed from that position on precognition in November 2005.

[9] On 10 February 2006, following a further analysis of the evidence, Crown Counsel determined that, although there was a sufficiency of evidence against Mr O'Neill, the evidence was not of such a satisfactory quality as would be likely to result in a conviction. Counsel also decided that there was insufficient evidence against Mr Lauchlan. This was presumably on the basis that his admission to the witnesses on the day after the supposed disappearance was not to be regarded as a serious remark. The twelve month period from the date of the appellants' first appearance on petition was allowed to expire; the instructions being that there should be no proceedings "meantime". This was intimated to the appellants' agents. The appellants would thereafter have been aware that an attempt could be made to resurrect the case, should new evidence emerge.

[10] Following upon their release from prison, the appellants returned to Spain for a time. They came back in November 2007 and went to live in Blackpool, where they registered with the local police. The police regarded them as presenting a high risk of offending and subjected them to surveillance. This revealed that, contrary to what they had been telling the police, they were regularly going to Scotland and had begun "grooming" a five year old boy. The Central Scotland Police commenced "Operation Aspen" to undercover evidence of their criminality and to revisit their involvement with the deceased and her son. This resulted in the police coming to know of further young sexual abuse complainers. Their investigations led them to interview one complainer, IY, his sister JY and his mother FY. FY told the police that Mr O'Neill had admitted killing a woman who had intended to report him to the police for abusing her son. JY gave a similar account. The investigation also led the police to Spain and to an associate of the appellants, namely KD. KD said that Mr Lauchlan had told him that he and Mr O'Neill had "got rid" of a woman who was going to give evidence against them. She had been "fed to the fishes". Another fellow prisoner of the appellants (GMcP), who had been with them after their incarceration in 2007, had also heard both appellants admitting to killing a woman whose son they were abusing. As a result of this information, further consideration of the case took place and, in September 2008, a decision was taken to indict the appellants to a Preliminary Hearing on 10 October. This decision was taken although RMcG had not been reprecognosced. He is, however, thought to be more disposed to assisting the Crown than hitherto.

2. Proceedings at First Instance and Submissions

[12] The Preliminary Hearing was postponed administratively until 13 October and then to 4 November 2008. By that time the Crown had applied for a retrospective extension to the twelve month period under section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995. These applications were argued initially at the Preliminary Hearing on 4 November but it was adjourned to 10, 11 and 12 November. The Hearing was continued again until 28 November, when, on the motion of the Crown and despite defence objection, the judge declined jurisdiction because of a past involvement with the case in 1998, when he had been an Advocate Depute. The case called before another judge on 3 December and was continued for a two day hearing on 18 December, when it was continued to the following day. Submissions on matters of competency were made and the case continued until 14 January 2009, when the competency objections were repelled and a new diet to argue the extensions fixed for 2 February, when the submissions were ultimately heard for a second time.

[13] Having reserved judgment, on 20 February 2009 the judge at first instance granted the crown's application for retrospective extensions of the twelve month time limit set out in section 65(1) of the 1995 Act. In a written Opinion issued on that date, she remarked that she considered the time limits as important and not to be disregarded lightly. However, she accepted that emergence of new evidence may provide cause for an extension of time. She continued in relatively short compass:

"[36] ...the Crown and the police acted properly in continuing to investigate and review the information they had on the disappearance of [the deceased] between 1997 and 2008. I accept that the Crown decided in 2005 to place the [appellants] on petition because the Crown believed there to be a sufficiency against them. There is now a dispute between [the Crown and Lauchlan] as to whether there was a sufficiency. I think that the court is neither able to, nor is required to, resolve that dispute. Resolution would require a full study of all statements available at that date. That is not a decision for the court but rather is one for the Crown. It is then for the Crown to complete its precognition... A decision was then made that there was no sufficiency against Mr Lauchlan and that the Crown did not wish to proceed against Mr O'Neill alone, especially in light of the quality of the evidence the Crown expected to lead. The question then becomes whether the Crown is prevented by the terms of section 65 from revisiting and reviewing the decision at a later date.

[37] ...I do...accept that the evidence of an admission by Mr Lauchlan provides a sufficiency against him, and I accept that that does constitute a change in circumstances. The further admissions by Mr O'Neill also constitute a change in circumstances.

[38] ...the situation...is not similar to cases where the time limit provided by section 65 has been allowed to expire due to inadvertence. Rather the Crown deliberately did not proceed within the time limit but now seek to extend it retrospectively because circumstances have changed.

....

[40] In all the circumstances it appears to me that cause is shown for the possible granting of a retrospective extension. The cause is that evidence has now come to light which was not available within the time limit....

[41] Moving to the second leg of the test [in HMA v Swift 1984 JC 83 and Early v HM Advocate 2007 JC 50], that is whether the court should exercise its discretion to grant the extension, on balance I am of the view that it should. I am influenced in this by the gravity of the charges. I accept that the Crown and the police should continue to review cases which are serious. The circumstances of this case where there is an allegation that [the deceased's] body has been disposed of at sea make for a difficult investigation. If that allegation is true then there may be no evidence available of a body, and [the] Crown are oblige to consider carefully what evidence they can lead. I am persuaded that the new evidence of further admissions and the sufficiency thereby provided against Mr Lauchlan weigh in favour of the Crown being allowed an extension. The new evidence is not of the most compelling type, as for example the discovery of a body with some DNA evidence linking to those accused would be. Nevertheless I am persuaded in all the circumstances that an extension should be granted. There is in my opinion a relative lack of prejudice to the [appellants]. The passage of time affects both prosecution and defence. I accept that the death of witnesses may cause some difficulty but I understand that statements were given by the witnesses...which can be used in evidence".

[14] In the short Report produced in response to the Grounds of Appeal, the judge at first instance accepted that the Crown had erred either in placing the appellants on petition without a sufficiency or in deciding not to indict when there was a sufficiency.

[15] A substantial amount of court time was saved by the production of written arguments for the appellant Lauchlan, which the court was able to read in advance of the appeal diet. Mr Lauchlan accepted that the judge at first instance had applied the correct test; notably the two stage one in Swift v HM Advocate (supra, LJG at 88) whereby the court requires to determine first whether the Crown have shown a reason that might be sufficient to justify an extension and secondly whether the court should, using its discretion and considering all the circumstances, grant the extension for that reason. However, it was submitted that the Crown had failed to satisfy the first part of the test. The Crown had been at fault either in placing Mr Lauchlan on petition and having him fully committed or in later determining that there should be no proceedings because of a perceived insufficiency.

[16] The court required to decide whether the Crown were at fault, and, if so, when. It ought to be assumed, from the Crown's decision to put Mr Lauchlan on petition, that there was a sufficiency at that stage. The judge at first instance had erred in declining to assess that matter and in accepting the Crown's submissions uncritically. In fact there was a sufficiency at that time from, for example, the admissions from Mr Lauchlan to GMcK and JS, that they had "cut her up and put her in a curry", and to JH, when he pointed to a boat and said "that's where we chopped her up", coupled with various other facts and circumstances.

[17] In any event the Crown could have uncovered the new evidence before the expiry of the time limit by carrying out an adequate precognition and discovering the existence and testimony of the various witnesses, whose evidence they now say adds to the Crown case. In particular, they could have taken a statement from KD, whose evidence was said by the Crown to create a sufficiency against Mr Lauchlan. The existence of KD had been known to the Crown prior to Mr Lauchlan being placed on petition and the alleged admissions to KD by the appellants also predated that event. The same applied to the evidence of GMcP and SC. Where the Crown had placed a person on petition with insufficient evidence and then failed to make proper enquiries, they ought not to obtain an extension (Stewart v HM Advocate 1993 SCCR 1010).

[18] Alternatively, if there were an insufficiency at the time the Crown decided to take no further proceedings meantime, then the Crown had erred in putting Mr Lauchlan on petition in the first place. The nature and degree of fault on the part of the Crown was a relevant consideration in determining whether a reason had been shown for allowing an exception to the general rule and in deciding whether the court's discretion should favour the Crown (HM Advocate v Swift (supra, LJG at 88). The Crown's intimation that they were not proceeding "meantime" had been the subject of comment to the effect that this ought not to usurp statutory time limits (Stewart v HM Advocate (supra at 1014). It was not enough for the Crown to point to an error. They required to explain why the error occurred and to satisfy the court that it ought to be excused (Stenton v HM Advocate 1998 JC 278, Lord Coulsfield at 282). The length of the delay was also a factor to take into account (Farrell v HM Advocate 2001 SCCR 720, Lord Hamilton at para [13]).

[19] Even if cause had been shown, the judge at first instance had erred in exercising her discretion in favour of the Crown, having regard to the age of the offence, the risk of prejudice to the appellant as a result of the passage of time, the nature of the error on the part of the Crown (Robertson v HM Advocate 2008 SCCR 806, Lord Osborne at 814) and the length of the extension sought. It was not known how much evidence had been lost but many witnesses had moved addresses and had not yet been traced; especially those claiming to have seen the deceased after the date alleged by the Crown to have been that of her disappearance. Some witnesses had died. A police production book had been destroyed and some productions were missing.

[20] The appellant O'Neill also accepted the two stage test (supra) and adopted the submission made by his co-appellant. It was conceded, in terms of Early v HM Advocate (supra), that the question of whether the Crown had made a major or minor error was not critical. But the gravity of the error was a relevant factor to consider. The court required to consider what the reason for the application was. There were two possible reasons. The first was the error in placing the appellant on petition and the second was the error in deciding not to proceed against him. The court required to decide whether these errors had been avoidable. It was accepted that the emergence of new evidence might form the basis for a good reason. But, in Mr O'Neill's case, the evidence was not additional to what had already been obtained. It was just evidence of more admissions from the appellant. Evidence of these new admissions could have been obtained prior to the expiry of the twelve month time limit. But it was clear that for long periods in the years 1999 to 2004, there had been very little activity on the part of the Crown or the police. Cause had not been shown in terms of the first stage of the test. Furthermore, the court's discretion ought not to have been exercised in favour of the Crown. There was nothing exceptional in this case (Bennett v HM Advocate 1998 SCCR 23). The Crown had had a sufficiency against the appellant and could have proceeded (Mejka v HM Advocate 1993 SCCR 978). It was of note that the application for an extension had come in October 2008 only when the appellants tendered their pleas to the competency of proceedings.

[21] The Advocate Depute maintained that the decision to put the appellants on petition had not been an error nor had there been any fault in the later decision, after a full and detailed analysis, not to proceed meantime. The new evidence emerging since Operation Aspen merited a re-assessment of the case and the interests of justice required a retrospective extension (Smith v HM Advocate, unreported, Lord Marnoch delivering the Opinion of the Court, 25 April 2002). The judge at first instance had fully considered all the factors and balanced them appropriately.

3. Decision

[22] Subsection 65(1) of the 1995 Act provides that an accused cannot be tried on indictment for any offence unless he is indicted to a Preliminary Hearing within eleven months, and brought to trial within twelve months, of his first appearance on petition. However, in High Court cases, power is given in subsection 65(3) for a single judge to extend these periods "on cause shown". The principles to be applied in deciding whether to grant an extension have been clearly set out by the Lord Justice Clerk (Gill) in the recent Full Bench decision of Early v HM Advocate 2007 JC 50. That case applied the two stage test enunciated in HM Advocate v Swift 1984 JC 83. The first stage is to determine whether the Crown have shown a reason ("cause") that might be sufficient to justify the extension. In that context, the issue of whether the Crown have made an error, which could have been avoided, may be an important consideration (Early v HM Advocate (supra) LJ-C at para [7] under reference to Mejka v HM Advocate 1993 SCCR 978). If an error has occurred, whether it is a major or minor one, the Crown will have to explain why it was made and persuade the Court that it might be excused (Early v HM Advocate (supra) LJ-C at para [22]). If there has been no error and, in any event, some cause has been shown, the Court may move onto the second stage of determining whether, in all the circumstances, it should exercise its discretion in favour of the Crown. At this second stage, the nature of the charge, notably its seriousness, and the public interest will be taken into account as will the presence or absence of any prejudice to the accused and the length of the extension sought (Early v HM Advocate (supra) LJ-C at para [11]). It will be very important to take account of the fact that an accused person ought not to be derived of his right under section 65(1) unless sufficient reason is apparent.

[23] It is accepted that the judge at first instance correctly identified this two stage test. In relation to the first stage, the judge considered that a potentially good reason had been proffered in the form of a change of circumstances; notably that evidence had come to light, which had not been available within the time limit. The Court agrees that such a change of circumstances can amount to "cause shown" (eg Smith v HM Advocate (supra)). In assessing this case, the Court is not persuaded, however, that any change in circumstances arose as a result of any identifiable error or fault on the part of the Crown.

[24] The Crown decided that there was evidence to merit placing the appellants on petition and to proceed to full committal. It is not a requirement that, in order to place an accused person on petition, there is a strict legal sufficiency of evidence (i.e. two independent corroborated sources) against him. The evidence and its sufficiency will seldom have been considered in any detail at that point. It is from then that time begins to run and not the date of full committal, when, at least if the person is to be remanded in custody, there ought to be a prima facie case against him. Be that as it may, there is no reason to suppose, in this case, that there was such a lack of evidence that proceeding by way of petition ought not to have been commenced. There was evidence of the deceased having been in the company of the appellants at the time of her disappearance. The deceased's son apparently spoke to Mr O'Neill saying on the previous evening that he and Mr Lauchlan would have to "get rid" of her. GMcK and/or JS spoke to Mr O'Neill saying "we've killed her" and to Mr Lauchlan saying that they had "cut her up and put her in a curry". There was the evidence of a confession to a fellow prisoner, SC, and the newspaper clippings, the wheelie bin at sea and some odd activities in the vicinity of Mr Lauchlan's caravan plus the statement of JH saying that Mr Lauchlan had pointed to a fishing boat and said "that's where we chopped her up". There is then no question that there was a basis for proceeding and, for what it is worth, committing for trial.

[25] The decision of Crown Counsel on whether to indict involves considerations other than a pure sufficiency of evidence. It may well be that, strictly, a potential sufficiency did exist at the date when no proceedings "meantime" were instructed, even, contrary to Crown Counsel's views, against Mr Lauchlan. But that is not the point. Crown Counsel are entitled to consider the quality of the evidence against accused persons and to take a decision on whether to proceed based upon, amongst other matters, the likelihood of a conviction. On any view, some of the evidence against the appellants, notably that of confessions to fellow prisoners, was of doubtful value. Although there were police statements containing potentially useful evidence, precognition revealed that some witnesses, notably JH, were not going to testify along the lines of their recorded statements. Having regard to all these matters, there is no basis for concluding that the decision taken by Crown Counsel not to proceed "meantime" should be stigmatised as an error or a fault on their part. On the contrary, it appears to have been taken after a careful and reasoned analysis.

[26] In approaching the first stage of the test, the question is whether the judge at first instance was correct in holding that there was a possible reason ("cause") for allowing an extension in the form of a change of circumstances, notably the new evidence. That new evidence comes from further admissions: (a) by Mr O'Neill to IY, his sister JY and his mother FY; (b) by Mr Lauchlan to KD: and (c) by both appellants to another fellow prisoner of the appellants, GMcP. Although it may be that this evidence might have been discovered before the expiry of the twelve month period, the reality is that it was not. It only emerged after the surveillance operation which followed the appellants' return from Spain. The Court does not consider that any fault, on the Crown's part, is to be attributed here either. There is no reason to suppose that an earlier police approach to these witnesses would have uncovered what is now thought to be their testimony.

[27] It is not unreasonable to point out that the new evidence does not take the form of a new source, at least if it is accepted that there was an earlier admission by Mr Lauchlan, albeit one cloaked by humour. But it does create a greater multiplicity of admissions made to a variety of different people. Such multiplicity can be seen as increasing the likelihood of a conviction. That is a factor which can play an important part in Crown Counsel's decision on whether to proceed. The Court agrees with the judge at first instance that the emergence of this new evidence creates a change of circumstances which might justify an extension. The first stage of the test is therefore satisfied.

[28] In looking at the second stage, the importance of the protection afforded to accused persons under subsection 65(1) must clearly be given significant weight in the balancing exercise. In many cases, that protection would not be countered simply by the emergence of new evidence two years after the expiry of the twelve month period. But the gravity, nature and circumstances of the crime alleged must also play its part. If what the Crown allege is correct, the appellants murdered the deceased in cold blood and disposed of her body in a callous manner in order to stop her reporting them to the police for sexually abusing her son. The interests of justice would hardly be served by failing to prosecute such a case simply because, at an earlier stage, the twelve month period had been allowed to expire in the face of evidence deemed insufficient then to merit proceeding to trial. The Court considers that the trial judge properly weighed the various factors, including the effect of the loss of oral testimony and productions, and reached a decision which she was entitled to reach. There is no sound basis for interfering with her application of discretion. The appeals are refused.