Appellant: C Mitchell; Keegan Smith, Livingston

Respondent: P Kearney Solicitor Advocate AD; Crown Agent

19 December 2013

[1] This is a note of appeal brought by Kenneth Collins under section 65(8) of the Criminal Procedure (Scotland) Act 1995 against a decision of the sheriff at Livingston dated 30 August 2013 granting two applications made under section 65(5) of the Act to extend retrospectively the periods of 11 and 12 months, referred to in section 65(1) of the Act, in relation to two petitions on which the appellant appeared in 2008 and 2010.

[2] The details and history of the two petitions are as follows. The appellant appeared on the first petition (LI08002634) on 16 May 2008. That petition contained a charge of rape of the complainer WC alleged to have been committed on 15 May 2008.

[3] On 23 May 2008 the complainer wrote a letter to the procurator fiscal seeking to have the charge dropped. She claimed to have been under the influence of drugs and alcohol when she made the allegation and that she "really wanted to hurt him [the appellant] back". On 4 September 2008 she provided a statement to the police to the effect that she had fabricated the allegation of rape as an act of revenge against the appellant. On 24 October 2008 she provided a further statement in which she maintained that the incident in question did not happen. On 3 November 2008 Crown counsel instructed that there should be no proceedings and the petition was allowed to fall.

[4] The appellant appeared on the second petition (LI10003052) on 29 June 2010 on a charge of assaulting the same complainer, then named WAH, to her severe injury and permanent impairment on 28 June 2010. The appellant was committed for further examination and remanded in custody. The court was told by the Crown that the petition was based on a statement provided to the police by the complainer on 28 June 2010 at St John's Hospital, Livingston. On 30 June 2010 she gave a further statement to the police detailing other assaults alleged to have been committed by the appellant on her in the course of which she was noted as having said:

"About two years ago I reported that Kenny had raped me but I got the case dropped. The reason was I got back with him and was also worried that he would do worse things to me. I know it's stupid but I kept going back to him no matter what Kenny did to me....

...I was happy that Kenny was being alright with me so didn't want to make a complaint and face Kenny then givin' me a kicking in...

....This is not the first time Kenny has beaten me up but this time I will not drop the charge against him, it has gone too far."

On 6 July 2010 she gave a further statement in which she was noted as having said:

"Kenny kept going on to me how he was going to get 8 years for the rape and that how he didn't really rape me, just beat me up and then slept with me. Eventually I said I would get the charge dropped. Kenny even wrote down what I needed to say in my statement but I don't have that"

[5] On the same date, 6 July 2010, at Livingston Sheriff Court, the accused was fully committed and remanded in custody, bail having been refused.

[6] On 30 July 2010 the complainer gave another statement to the police in which she was noted as having said:

"Over the last couple of weeks I have really thought about it and I have, it didn't come to me lightly. But what happened to me, I didn't report it at the time, I should have but I didn't. I feel that it should just be left now. I just dinnae see the point of bringing these things up because it would just be a revenge thing. Kenny would never let go. I would pay for that and I dinnae want to die. I genuinely believe he is capable of that."

[7] Following on his full committal on the second petition the appellant was indicted with the single charge of having assaulted the complainer on 28 June 2010. A first diet and continued first diet took place on 27 September and 6 October 2010 and on both occasions the appellant was remanded in custody. A trial diet was fixed for 11 October 2010. The complainer having at that stage gone missing, on 6 October 2010 a warrant for her arrest was sought and granted. On 22 October 2010 the trial diet was adjourned on Crown motion due to lack of court time. The appellant was granted bail on special conditions prohibiting contact with the complainer. A fresh first diet followed, but on 6 December 2010 the diet was deserted pro loco et tempore on the ground that the complainer had not been traced.

[8] There matters rested until, approximately one year later, the complainer was traced and, on 6 January 2012, gave a further lengthy statement to the police which, by reason of time constraints, was broken off and thereafter resumed on 9 January 2012. In that extended interview with police officers WAH gave a lengthy history of her life and her relations with, among others, the appellant. About the same time she informed the police that the accused was selling drugs and investigations resulted in his being convicted of drug offences and sentenced to three years' imprisonment.

[9] In that extended statement WAH made allegations that the appellant had committed a further rape and several serious assaults against her. Asked whether she had ever tried to leave the appellant WAH replied that she had done so "a few times" and then is noted as having said:

"Usually after two or three weeks he would come looking for me. He always knew where I was. I didnae have many places to go. Then it would be 'I love you' everything would be alright. If I didnae go back he would make my life a misery. He would slash my tyres, manipulate my friends, my family, and make my life a misery...It got to the stage, it got that bad that it was easier to go back. ...Through the years he messed my head that much...He made my life a living hell. If I had a job he would do my tyres, set my car on fire. He dobbed me into the dole. He would go out of his way to spoil everything, so that I had to meet him. It's hard to explain..."

"I ended up going back to him, retracting my statement I made myself out to be a liar. He went to the polis station and the pf and gave another statement. Kenny managed to talk to me and made me believe we'd be alright. That he loved me again, he knew he would get put away for a long time, so I made it look as if I had made it up out of spite to get him off with it."

Asked specifically whether she had retracted her original statement on 4 September 2008 as a result of force or threats from the appellant, she said, "No I done it to save him from getting the jail because I loved him".

She went on:

"That's it really until the final beating.

That was last year or the year before when he put me in the hospital.

The police came to that one and I gave them a statement...after that one I decided I wasn't lying again like the first one. I knew if I didn't get served the citation then I wasn't breaking the law.

I refused to lie for him again, so I told him that. So the only thing I could think of was to do a runner. I left my house so they couldn't serve me with a citation for the case. I lost my house and everything in it because I couldn't go back.

I even went back to him again after that."

Her account of her life history apparently led to another complainer, FM, being interviewed.

[10] Approximately 18 months later, on 10 June 2013, the appellant appeared in Livingston Sheriff Court on a petition containing six charges. In four of the charges, a charge of rape, a charge of assault to the danger of life, and two charges of assault to injury, the complainer was WAH. In the remaining two charges, one of rape and one of assault to injury, the complainer was FM. The appellant was committed for further examination and remanded in custody. The sheriff was informed that the appellant was to be indicted on these charges in the High Court of Justiciary in the week commencing 2 September 2013, and that the Crown wished to add the charges contained in the petitions of 2008 and 2010 to that indictment. It was for that reason the extensions were sought.

[11] After reading the police notes of statements by the complainer the sheriff formed the view that although the reasons for WAH having withdrawn her allegation of rape and having gone into hiding were complex a fear of the accused was a major factor which underlay the decision that she took. He took the view that the absence of action by the Crown to resuscitate the 2008 rape charge and the assault charge of 2010 were adequately explained since in the police statement in July 2010 the complainer seemed to say that she wished to leave these matters in the past, and since she thereafter disappeared in the autumn of that year. In these circumstances he found that there was no fault on the part of the Crown and that accordingly the first part of the test set out in Swift v HMA 1984 JC 83 was satisfied. In relation to the second part of the test, the sheriff acknowledged that the extension of time sought was lengthy, but concluded that the appellant had been ultimately responsible for the charges not being proceeded with. Moreover, the charges were serious, and the public interest in having them brought to a trial was overwhelming.

[12] Before this court counsel for the appellant argued that the Crown were at fault in accepting without further investigation, the complainer's retraction and in failing to offer her protection. In similar circumstances, the Crown frequently proceeded with prosecutions when a complainer had sought to retract. The Crown made no attempt in 2010 to resurrect the original charge of rape alleged to have been committed in May 2008. An extension of time could have been applied for at that time. Later, when the complainer disappeared, the Crown appeared to have made no attempt to trace her. Counsel also emphasised the inordinate length of time which had elapsed since the appellant's appearance on the original petitions.

[13] For the Crown, the Advocate depute submitted that the Crown had not been at fault in any respect. It would, he said, have been irresponsible for them to proceed in the face of the complainer's clear retraction. The management of the cases had been dictated by her actions. In relation to the lack of activity between January 2012 and May 2013, the advocate depute explained that the second complainer FM had only been identified in January 2012. The credibility and reliability of both complainers had had to be assessed and it had - he said- to be established whether FM was willing to give evidence. The initial police report which gave rise to the present petition was submitted to Crown counsel in April 2012. It was then sent to the National Sex Crime Unit and was marked by Crown counsel in July 2012. The credibility of the complainers required to be further investigated. Both were precognosed in April 2012, and a further report sent to the National Sex Crimes Unit in October 2012. The case was re‑marked by Crown counsel on 29 January 2013. The nature of the charges was grave and the public interest in bringing the appellant to justice was overwhelming.

Discussion and decision

[14] We observe at the outset that, in balancing on the one hand the public interest in the prosecution of crime with, on the other hand, the public interest, and the interests of a person against whom proceedings have been brought, in securing that criminal proceedings are pursued efficiently, the legislature enacted, in what is now s 65(1) of the Criminal Procedure (Scotland) Act 1995, the general rule that where a person has appeared on petition and the trial of that person has not been commenced within 12 months of his first appearance, he shall not be tried on indictment for the offence. The importance of the relative finality conferred by that provision is reflected in what was said by the Lord Justice General (Emslie) in giving the Opinion of the Court in H M Advocate v Swift; the court there stated that that general rule was "clearly a very important right" conferred on an accused. The rule is also an important mechanism for ensuring this country's compliance with the requirement under ECHR article 6 that trials be brought within a reasonable time. As recognised since the end of the eighteenth century, the existence of a time‑limit is an important compulsitor on the Crown to proceed efficiently. We would also observe that, since the provision applies in cases in which the Crown has initiated solemn proceedings, the legislature must be taken to have had in its contemplation that the general rule would apply in cases in which the alleged crime was a serious one. Thus while the gravity of the alleged offence is no doubt a factor that may affect the exercise of discretion, the fact that the alleged offence may be seen as a serious one is not in itself, and without more, a good ground for departing from the general rule and granting an extension of the time limit.

[15] As a further preliminary observation, it should be noted that in the present case the appellant appeared on two separate petitions at different dates with consequently different histories. In our view it is necessary, at least initially, to consider the respective charges in each petition separately.

[16] The appellant appeared on the chronologically first of those petitions on 16 May 2008. In that petition the Crown charged the appellant with having raped the complainer on the preceding day. No indictment was ever served. Crown counsel instructed on 3 November 2008 that there should be no further proceedings. It may no doubt be that the instruction was given in light of the retraction by the complainer of the allegation, seemingly initially by a telephone call to the procurator fiscal's office on 22 May 2008, followed, as required by that office, a letter setting out the retraction, with that letter being followed by two interviews of the complainer by the police (4 September and 24 October 2008) in both of which the complainer confirmed that she retracted the allegation of assault and rape. Presumably, if the decision not to take further proceedings was prompted by the retraction, Crown counsel were satisfied that the allegations were sufficiently genuinely withdrawn that the complainer would maintain her position in evidence. Quantum valeat, the complainer, as noted by police on 9 January 2012 in a subsequent statement, made clear that the retraction was not by reason of any force or threats from the appellant, but by her love for him - see her response to a specific question on that matter, which is set out in paragraph [9] supra. In these circumstances the failure of the Crown to bring the appellant to trial prior to 16 May 2009 was not the result of any procedural slip‑up or mishap, or the unavailability of a material witness. It was the result of a conscious decision that, notwithstanding having started the running of the time‑bar by placing the appellant on petition on the serious charge of rape, the proceedings should be discontinued. On the face of matters, given the importance of the right conferred by the legislation, it was a decision upon which the appellant was entitled to place some reliance.

[17] The appellant next came to the attention of the prosecuting authorities on 29 June 2010 when, following a complaint by the same complainer that he had assaulted her on the preceding day, the appellant was again placed on petition charged with that assault and remanded in custody. It appears that on 30 June 2010 the complainer was noted by a police officer as saying that she had withdrawn the allegations of rape because she had gone back to him and was "worried that he might do worse things to me". While she was not noted in terms as saying that she withdrew her earlier retractions of the allegation, the implication that she was doing so is plain. The terms of that statement to the police, as also the police note of later statements on 6 and 30 July 2010, were, we understand, before Crown counsel when the instruction and authority was given to the procurator fiscal to indict the appellant in the sheriff court on the single charge of assaulting the complainer on 28 June 2010. Although in possession of the information that the complainer no longer stood by her earlier retractions of the allegation of rape on 15 May 2008, the advocate depute marking the papers did not instruct the procurator fiscal to seek a retrospective extension of time to resuscitate that allegation of rape. It is not suggested that this was some oversight on the part of Crown counsel or the Crown Office. It therefore appears that on a second occasion, this time however with information that the retraction had been withdrawn, a conscious prosecutorial decision was taken not to proceed with the charge of rape made against the appellant in the petition on which he had appeared over two years previously. The fact that the Crown did not take any steps to revive the rape charge would confirm the reliance which might have been placed on the earlier express decision not to proceed and thereby to confer on the appellant the protection conferred by the legislation.

[18] In the course of his submissions to us the advocate depute suggested that the basis for the decision not to seek any extension of time was the passage from the police note of a statement from the complainer on 30 July 2010, quoted in paragraph [6] above, to the effect that the complainer's personal feeling was that she would prefer that the matter be not pursued and that it was reasonable for the Crown to follow her wish; but that now the complainer's wishes were otherwise. Plainly, in exercising the judgment whether it is appropriate to prosecute, the Lord Advocate, as an independent prosecutor, may take into account the sentiments of a complainer; but a decision not to proceed is the decision of the Lord Advocate, who, as such independent prosecutor, is not in any sense a representative or agent of a complainer. If, having taken a decision in light of those sentiments, those sentiments or wishes change, that can hardly be a reason, consistent with the concept of an independent prosecutor, for sanctioning the reversal of a decision not to prosecute and undermining the finality intended by the legislature when enacting s 65 of the 1995 Act, and its statutory predecessors.

[19] Since the Crown took no steps, when indicting the appellant on the indictment in which the first diet took place on 27 September 2010, to include therein the allegation of rape on 15 May 2008, the circumstances in which that indictment was deserted pro loco et tempore on 6 December 2010 are irrelevant to a consideration whether in June 2013 an extension of time - some four and one half years- should have been granted for the charge in the first petition.

[20] At this point it is appropriate to turn to the second petition and the issues in that discrete process. As already narrated, the appellant appeared on that petition on 6 July 2010 and was remanded in custody. He was thereafter indicted and remained in custody until the continued trial diet on 22 October 2010 when he was granted bail. A warrant had earlier been granted for the apprehension of the complainer, who had gone away. The sheriff from whose decision this appeal is taken was not advised of what steps, if any, were taken to trace the complainer; nor, seemingly did he address any inquiry to the procurator fiscal depute. The advocate depute was also unable, on inquiry by the court, to give any information on that matter, other than that on 6 December 2010 the warrant was recalled and thereafter the indictment was deserted pro loco et tempore.

[21] As previously narrated, the complainer reappeared about a year later, being interviewed by the police on 6 and 9 January 2012. Had the Crown been able to demonstrate that active steps had been taken during the preceding year, and particularly during the currency of the warrant, to try to find the complainer and had the prosecuting authorities moved promptly to seek an extension of time to indict the appellant of new on the charge contained in the second petition, there would no doubt be a good case for the granting of such an extension - cf Main v H M Advocate 1999 SLT 881. But apart from the fact that the Crown is still not able to say what steps, if any, were taken to trace the complainer subsequently to the grant of the warrant for her apprehension, a period of some 18 months elapsed after she reappeared and was again available as a witness before any application was made for an extension of time to try the appellant on the charge upon which he had been indicted in August 2010. Stating the obvious, far from acting with promptness and expedition when the essential witness became available, the Crown delayed, not just for the 12 month period envisaged by the legislature between petition and trial, but for a further six months. The sheriff ignores that extraordinary delay; seemingly he did not seek or receive any explanation for it. The explanation offered to us by the advocate depute - only, it may be said, in response to direct questioning by the court - is unacceptable. Once the complainer whose absence was the sole reason for which the trial on the indictment had been deserted was available, it was incumbent on the Crown to proceed with expedition to revive the prosecution by seeking an extension of time in which to indict of new. In our view the Crown has failed to demonstrate that it exercised such diligence. The matter appears to have been approached in a wholly leisurely manner, in accordance with some internal procedure seemingly resistant to any form of expedition, which appears to have little or no regard to the protection given to a petition accused by the legislature and the public interest, inherent in that protection, that prosecution be conducted efficiently.

[22] Summarising matters at this point, there is no evident basis in the history of the proceedings for granting any extension. In the case of the charge alleged in the second petition, while the disappearance of a witness might, in terms of the two stage approach explained in Swift v H M Advocate, have been a good cause for granting an extension, the failure of the Crown to explain what efforts, if any, were made to execute the witness apprehension warrant, and more importantly, the dilatory manner in which the Crown reacted when the only obstacle to proceeding with the indictment was removed by the re-appearance of the complainer, mean that the application fails at the second stage of that approach. The latter applies a fortiori to the charge made in the first petition, which does not even meet the first stage test, the disappearance of the complainer being of no relevance to it.

[23] What, in essence, is contended by the Crown in the present case is that the finality in the criminal process for which the general rule provides should be departed from because the Crown now wishes to bring new, but different, charges against the appellant involving the same complainer (and another complainer, but that is hardly relevant). In principle it is difficult to see that a wish or intention on the part of the Crown to bring a new charge or new charges can provide a sufficient cause to override the important right conferred by the legislature. If there are no circumstances which could otherwise warrant a retroactive extension of time, invoking the allegation that the person concerned has committed another crime as justification for overriding the otherwise extant finality from prosecution conferred by s 65 is in our view wrong in principle. It also involves, in effect, an assumption of guilt of the new allegation since there is no mechanism in which a verdict of guilt of the time‑barred charge could be reversed were the new allegation found unproven. The legislation does not contemplate any conditional extension.

[24] We recognise that where the new allegation is of criminal conduct on the part of an accused subsequent to the bringing of judicial proceedings - such as the threatening of witnesses - which was intended to prevent the trial proceeding, that may be a potent consideration for granting an extension - albeit that it adds little to the reason that, despite appropriate diligence, a material witness proved difficult to find and cite. However that is not the contention in the present case. The Crown does not propose any charge of conduct by the appellant which consists of threatening the complainer with a view to deterring her from giving evidence.

[25] What however the sheriff takes from the new charges is that, if proved, they might explain in part - there being many complex factors in the relationship - the complainer's attitudes at various points in the history of the two proceedings in which time has run out. The sheriff then moves to the conclusion that it was therefore the conduct of the appellant which caused the charges in the two petitions in issue not to be brought to trial. We have difficulty with that conclusion, which involves his putting a particular, emotive gloss on a number of police statements, none of which contains any allegation of actings by the appellant intended to prevent the complainer from giving evidence.

[26] It is also appropriate to address a submission advanced by the Crown which may be summarised, perhaps crudely, as being that on the new petition the appellant was facing a number of serious charges going back some distance in time; and so there would really be no prejudice to him, were the catalogue of allegations to be supplemented by the time‑barred charges; adding those charges would not really make much difference. The implication that, somehow, this deprivation of the right under section 65 was not prejudicial, sits inconsistently with the submission advanced seemingly in tandem that the charges were serious and therefore on that account should be allowed to proceed. The sheriff appears to have accepted these inconsistent submissions without any examination of their inconsistency. Conversely, of course, if the addition to the catalogue makes little practical difference, one may pose the question why this application was ever instituted.

[27] From what we have already said it will be evident that, while recognising that the sheriff may not have had the benefit of the fuller argument which we have heard, we have reached the view that the sheriff's decision was flawed in several respects. In our view, this appeal succeeds. Addressing the matter of new, we see no reason for reaching by any route avoiding his flaws the result at which the sheriff arrived. The interlocutor of the sheriff of 30 August 2013 is quashed. The applications for extension of time are refused.