Appellant: Prentice, QC; Crown Agent

Respondent: MacKenzie; Doonan McCaig & Co, Glasgow

14 November 2012
[1] The two stage test set out in Her Majesty's Advocate v Swift 1984 JC 83 is as follows:

"... the first question ... is ... 'Has a sufficient reason been shown which might justify the grant of an extension?' and the second question is, 'ought [the judge] in the exercise of [his] discretion in all the relevant circumstances of the case, to grant the extension for that reason?'."

[2] In this case there were two complainers, and the charges were serious (namely sexual assault ultimately to be indicted in the High Court as rape). The Moorov doctrine required that both complainers would give evidence.

[3] During the first few months following the respondent's appearance on petition on 2 September 2011, the case was not given high priority. The Crown were, in our view, entitled to take that approach, bearing in mind their caseload, including custody cases, time bar cases, cases involving children and other such cases. During this period, the Crown had no reason to think that the second complainer would disappear. Indeed the second complainer had been diligent to advise the Crown of a change of address at an earlier stage.

[4] When the case was allocated to a precognition officer on 9 March 2012, the second complainer could not be traced. Efforts were made to find him. In our opinion, the advocate depute was correct in his submission that it would have been inappropriate for the Crown to serve an indictment upon the respondent when there was, at that stage, insufficient evidence because of the absence of an essential witness, namely one complainer in a two-complainer Moorov case.

[5] Efforts were made by the Crown to trace the missing complainer all as set out in paragraphs 8 to 13 of the Note of Appeal. The sheriff acknowledges in paragraph 10 of his report that those paragraphs contain more detail than had been placed before him.

[6] Even when the witness was traced, we do not accept, in a case of such delicacy and seriousness as the present one, that it would have been appropriate to indict on the basis only of his witness statement. In our view it was necessary to have a full precognition and confirmation from the second complainer that he did wish to proceed with the prosecution, standing the nature and gravity of the offences alleged.

[7] Nor do we accept that this application for an extension should have been made earlier than 17 July 2012, which was the date when the second complainer could first attend for precognition. In our view, the Crown were quite correct to await the full precognition.

[8] Once the Crown had the precognition of the second complainer, there can be no criticism of the speed with which the case was processed. Thus we are satisfied that a sufficient reason has been made out in terms of the first stage of the two stage test.

[9] In relation to the second stage, we take into account first, the fact that these are very serious allegations, and it is in the interests of justice that they be pursued. Secondly, the fact that the difficulties which arose were not foreseeable and were not of the Crown's making. Thirdly, we take into account the fact that we are told (and it is not for us to say otherwise) that the appropriate way to proceed was in the High Court and not in the sheriff court. All in all, we are satisfied that the sheriff erred in the exercise of his discretion. We allow the appeal and the extension sought. The 11 month period will end on 4 January 2013, and the 12 month period, on 4 February 2013.

Aud