Appellant: M C MacKenzie; Public Defence Solicitors Office, Edinburgh

Respondent: Wade, Advocate depute; Crown Agent

15 October 2013

Extension of 11-month and 12-month time-bars

[1] The appellant is charged with a sexual offence alleged to have taken place on 12 April 2011. The indictment libelled a contravention of section 2 of the Sexual Offences (Scotland) Act 2009, specified as the digital penetration of the complainer's vagina without her consent. However when the complainer gave evidence at trial at Edinburgh sheriff court on 23 July 2013, she spoke of penile rape. The complainer was allowed to complete her evidence-in-chief. The sheriff then sent the jury out for lunch, and advised the procurator fiscal and the defence that he was concerned about the evidence which had emerged. During the lunch adjournment, the fiscal found, on a Crown computer system, a "first" statement made by the complainer to police officers, in which she alleged that the appellant had raped her. The fiscal had been unaware of that first statement. It was not with his papers.

[2] The sheriff adjourned the case over night. On 24 July 2013 the fiscal moved to amend the indictment to read "with your penis and your fingers" (in place of "with your fingers"). The sheriff refused the motion. The fiscal then moved the court to desert the diet pro loco et tempore, and to extend the 11 month time-bar from 2 July 2013 to 16 September 2013, and the 12-month time-bar from 2 August 2013 to 16 October 2013. These motions were opposed. The sheriff granted the motions. The appellant appeals against the decision to extend the time-bars.

Submissions

Submissions for the appellant

[3] Counsel submitted that the sheriff had erred in the application of the test in HM Advocate v Swift 1984 JC 83. The alleged offence occurred on 12 April 2011. There had been some delay before the appellant was first brought to court on 23 November 2011. There had then been a lengthy delay until August 2012, when the appellant pled "Not guilty" at the first diet. At that stage, the defence sought a continued first diet because of certain outstanding inquiries, including awaiting the Crown's response to requests for information about the complainer and her medical records, and also the potential instruction of a defence expert on the question of whether the complainer suffered a sleep disorder. At the continued first diet on 28 December 2012, the defence were having difficulties with Legal Aid, and had not yet instructed an expert. But there was also a problem with a Crown witness. The case next called on 8 January 2013, when the question of the expert was still outstanding. On 8 March 2013, at the continued first diet, the defence advised that there would be no expert witness, and therefore the case should proceed to trial. On 16 April 2013 the trial diet was adjourned by the court ex proprio motu as a result of pressure of business. There was an outstanding matter, namely a defence section 259 application in respect of a witness James Pretty and an apparent difficulty in that the Crown could not produce the witness's original statement. On 2 July 2013 Mr Pretty's statement had still not been made available. On 9 July 2013 there was a continued first diet, at which the section 259 application was granted.

[4] On 23 July 2013 the case called at a trial diet. Evidence was led from the complainer, as noted in paragraph [1] above. The Crown sought to clarify matters overnight, and the next day the fiscal made the motion to desert the trial diet. The fiscal advised the court that those involved in preparing the complainer's case had not known about the statement in which the complainer spoke of being raped. No further information was given to the sheriff to enable him to decide whether there was a valid excuse in terms of Swift or not.

[5] Counsel summarised the procedural history as follows. There had been six continuations. When the chronology was examined, it could be seen that none of the continuations was the fault of the defence. The defence had hoped to obtain an expert witness on sleep disorder, but that had not borne fruit. A significant element in the delay had been linked to the application under section 259. Counsel submitted that the six continuations were caused 100 per cent by the Crown. The sheriff had erred in not sufficiently probing the reasons underlying the delay. A critical error on the part of the Crown (namely working on the basis of digital penetration when there was a complaint of rape) had not been properly explained. Bearing in mind the existence of the Crown Office dedicated sexual offences unit, it was all the more important that the error be fully explained: but it had not been. The Crown were entirely to blame, and had been guilty of a systemic failure.

[6] In relation to the first limb of the test in Swift v HM Advocate, counsel referred to Stenton v HM Advocate 1998 SCCR 594, at page 598B; Robertson v HM Advocate 2008 SCCR 806; and Brown v HM Advocate 1998 SCCR 461. The failure in the present case had been of equal magnitude to the failures in those cases. There had been a failure to carry out an audit as the case progressed, and a failure to disclose the "first statement" of the complainer to the defence.

[7] As for the second limb of the test in Swift (ie whether the court should, in its discretion, grant an extension), it was accepted that the appellant was accused of a serious crime. But that meant that even more vigilance and care was required in the preparation of the case. The sheriff's assessment of the circumstances leading to the granting of the extension of time failed to attach sufficient weight to the procedural history. Parliament had not intended that extensions should be granted where the Crown made such a grave error. The appeal should be granted and the extensions quashed.

Submissions for the Crown

[8] The advocate depute described the full sequence of events as follows.

[9] The Crown had a computer system, to which cases and documents were up-loaded by police and Crown Office staff. The computer system was regularly accessed by the procurator fiscal and his staff.

[10] Immediately following the incident on 11 April 2011, two uniformed police officers, Constables Ian Collins and Helen Lyon, attended at the locus. They had made contemporaneous entries in their notebooks. Those entries were subsequently used by the officers to prepare their police operational statements, in which the officers recorded the complainer speaking of waking up, feeling a sharp pain in her vagina, and finding the appellant on top of her with his penis inside her vagina.

[11] After taking the complainer's statement, the officers took her to a dedicated sexual offences suite in Edinburgh to be examined. There, more experienced police officers took a detailed statement from her. At that stage, the complainer was not clear whether it was a finger or a penis which had penetrated her. She was medically examined, and forensic swabs were taken. The matter was then reported by the police on a standard police report containing a suggested draft charge. The report made it clear that the complainer did not know what had penetrated her.

[12] The appellant was not placed on petition at that stage. The case was reported to Crown counsel. The results of forensic and medical examination were considered. There was strong forensic evidence of the existence of the complainer's DNA under the fingernails of the appellant; there was only a very small amount of DNA on the penile shaft providing a partial DNA profile with only a very weak indication that it might be the complainer's. The forensic and medical evidence led Crown counsel to the view that, while the complainer did not know what had penetrated her, the forensic and medical evidence supported digital penetration. Section 2 of the 2009 Act envisaged that type of situation (ie the complainer knowing that she had been penetrated, but not sure what by). The definition in section 2(4) included penetration by a penis. The indictment was accordingly drafted on the basis of section 2. In that state of the evidence, it was entirely proper that the case had been indicted in the sheriff court as an alleged section 2 offence.

[13] In July 2012, the police operational statements of Constables Collins and Lyon were uploaded onto the Crown computer system. However neither the Crown Office nor the fiscal was notified that this had occurred. There had been a failure on the part of police officers to follow an established notification process.

[14] When the complainer gave evidence on 23 July 2013, she described inter alia rape. The sheriff became concerned that the case should have been indicted in the High Court. Over lunch, the fiscal checked the computer system and discovered Constable Collins' and Lyon's operational statements. These had not been disclosed to the defence. Non-disclosure became the focus of the debate in court on 23 July 2013. The fiscal's subsequent attempt to amend the indictment was refused. The sheriff ultimately granted the fiscal's motion that the trial be deserted pro loco et tempore. Thereafter the case was re-indicted in the High Court as an offence under section 1 of the 2009 Act (rape).

[15] The advocate depute accepted that, had a member of the fiscal staff carried out a search on the Crown computer prior to the trial, the police operational statements could have been found. The statements should have been disclosed to the defence, and it was not clear why they had not formed part of the disclosure exercise.

[16] The advocate depute submitted that, in all the circumstances, there was "sufficient reason" satisfying the first limb of the test in Swift. In answer to a question from the bench, she accepted that no formal precognition had been taken from the complainer between the date of the alleged incident on 12 April 2011 and the trial on 23 July 2013. Following the aborted trial, there had been an internal Crown Office inquiry seeking to ascertain what had happened, why, and whether systems required improvement. We were advised that Crown practice is now to take a directional precognition from a complainer such as the complainer in this case.

[17] As for the exercise of the court's discretion, the sheriff had properly exercised his discretion in favour of the Crown. The alleged offence was a serious one. The extensions ultimately given were short. The complainer's position appeared to have changed. The appellant had been re-indicted with an alleged offence of rape. Viewing the procedural history overall, the continuations had not been the fault of the Crown. The Crown had not been uncooperative in relation to the section 259 application, although admittedly there had been a problem in that context. Much of the delay had been due to the defence attempt to obtain an expert witness.

[18] In the result, while it was accepted that the procedural history was unfortunate and messy, it was in the interests of justice that the case should proceed to trial.

Discussion and decision

[19] In HM Advocate v Swift 1984 JC 83, Lord Justice General Emslie defined the two-stage test as follows:

"If an extension is to be granted ... the first question for the judge concerned is ... 'Has sufficient reason been shown which might justify the grant of an extension?' and the second question is 'Ought I in the exercise of my discretion in all the relevant circumstances of the case, to grant the extension for that reason?'"

It seems to us that a more detailed explanation of events was given to this court than the explanation given to the sheriff on 24 July 2013. That may affect the assessment of both the first and the second questions.

[20] In relation to the first question, we note that about 71/2 months passed between the alleged offence on 12 April 2011 and the appellant's first appearance in court on 23 November 2011; and about 9 months passed between 23 November 2011 and the first diet in August 2012, when the appellant pled not guilty. Thereafter the progress of the case was impeded for various reasons, including defence difficulties with Legal Aid and their endeavour to obtain the services of an expert witness; problems experienced by the Crown in providing the defence with a statement by James Pretty, in the context of a section 259 application; and pressure of business in the sheriff court. Ultimately the trial diet was fixed for 23 July 2013 where matters developed as outlined in paragraphs [1] and [2] above.

[21] In our view what occurred in this case was caused by (a) a police failure to follow a notification procedure by alerting the procurator fiscal or the Crown Office to the fact that police operational statements had been uploaded onto the Crown computer system; and (b) the complainer's apparent change in position, in that she told special unit officers that she was unsure what had penetrated her, whereas at trial she described a penile rape. In these circumstances, we do not accept that what occurred in this case was equivalent to the clear and obvious error ex facie the indictment in Stenton v HM Advocate 1998 SCCR 594 (a failure to specify the locus in the indictment) or Robertson v HM Advocate 2008 SCCR 806 (the omission of two charges from the indictment). Nor can it properly be said that there was an "accumulation of errors", as in Brown v HM Advocate 1998 SCCR 461. Ultimately we have been persuaded that sufficient reason has been demonstrated such that the first limb of the test in Swift v HM Advocate is satisfied.

[22] We turn now to the second limb, the exercise of the court's discretion. In that context, we note the following factors:

• The alleged offence was a very grave one, namely a major sexual assault perpetrated upon a young woman who was sleeping and under the influence of drink.
• The complainer's description of events appeared to change, in that she told officers in the special unit that she was not sure what had penetrated her (penis or fingers), whereas at trial she described a penile rape.
• The extensions of time challenged are, in our opinion, moderate (21/2 months).
• The previous procedural history outlined in paragraph [3] above has not, on the information placed before us, prevented the evidence relating to the alleged offence from being available and ready to be heard in court.

Ultimately we have reached the view that the second question in Swift v HM Advocate should also be answered in the affirmative.

[23] In the result therefore we agree with the conclusion reached by the sheriff, although we acknowledge that the background information provided in the appeal court was rather more detailed than that provided in the sheriff court. We refuse the appeal.