Scottish High Court of Justiciary Decisons

Crown:  Harper AD;  Crown Agent

Defence:  Pollock, Solicitor Advocate;  Belmonte & Co

16 May 2014

[1]        The accused in this case is a 63 year old man accused of the crime of rape contrary to Section 1 of the Sexual Offence (Scotland) Act 2009.  The offence is said to have occurred on 25 or 26 December 2011.  The complainer is a vulnerable 21 year old young woman with a mild learning disability and a history of special needs.  She was 19 at the date of the alleged offence.  The case called before me on 30 April 2014 when the Crown’s motion was to extend the 12 month time bar period provided for by section 65(1)(b) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”).  That motion was opposed on behalf of the accused.

[2]        In order to understand the way in which the issue for determination arose it is necessary to set out the history of the case.  Although the offence was said to have been perpetrated on 25 or 26 December 2011, it was not reported to the police until 18 April 2012.  A report was sent by the police to the procurator fiscal’s office on 8 October 2012 and, in turn, reported from that office to the National Sex Crimes Unit in Crown Office on 17 October 2012.  Crown counsel instructed that the case was to be prepared and re-reported for a decision as to whether the accused was to be placed on petition and that instruction was issued on 25 October.  I was given to understand that this is a fairly common step taken in such cases and is known as “pre-petition precognition.”  The matter was re-reported (outwith the original required timescale of 6 weeks) on 9 January 2013.  Crown counsel’s instruction was to place the accused on petition and to recover and consider social work records relating to the complainer.  However, this decision was not made by Crown counsel until 3 March 2013, 7 ½ weeks after the report was received.

[3]        On 11 April 2013 the accused appeared on petition.  On 13 January 2014 the case was reported to Crown Office for a final decision and an instruction to proceed in the High Court was issued.  The case was indicted on 6 February 2014 to a preliminary hearing set for 11 March 2014, the last possible day on which such a hearing could be convened in terms of section 65(1)(a) of the 1995 Act.  At that stage the 12 month time bar period was due to expire on 11 April 2014.  That preliminary hearing was adjourned on joint application in terms of section 75A of the 1995 Act and a new hearing was set for 16 April 2014.  As requested so to do in that application, the court extended the 11 month time bar period to 16 April and the 12 month period to 16 May.  The basis for adjournment set out in that application was that the crown had obtained voluminous social work records pertaining to the complainer which they had not completed their consideration of.  There was therefore said to be insufficient time available to permit disclosure of this material to the defence and consideration by them of it in advance of the preliminary hearing.  Nothing was said in that application about the case history or the circumstances in which the records had been recovered.

[4]        On 16 April 2014 the case called before me.  Counsel for the accused explained that he had still not received disclosure of the material referred to.  He had been provided with a summary of the content of the records and this had alerted him to the fact that the complainer had apparently made a number of complaints of sexual abuse in the past, some of which, he understood, she had subsequently retracted or acknowledged to have been false.  He wished copies of all of the social work records in order to instruct a defence expert to consider whether they might disclose the existence of an underlying condition which would affect the complainer’s credibility or reliability.  He also wanted disclosure of her medical records for the same purpose.  He had in mind a motion to fix a continued preliminary hearing for a date in around 3 or 4 months’ time. 

[5]        The advocate depute who appeared at this first hearing did not oppose the fixing of a continued preliminary hearing in order to provide the defence with time to complete their enquiries but he moved me to extend the 12 month time bar period to whatever date was fixed for the continued hearing.  It was obvious that it would have to be extended again thereafter in order to accommodate a trial diet.

[6]        The advocate depute was able to give me a rough outline of the case history.  He explained that whilst the social work records had been obtained by the Procurator Fiscal by around the middle of March 2013 the process of considering them did not commence until 11 February 2014, which would have been after or at the point of service of the indictment.  He explained that since that point a team of 4 members of staff had been allocated to the process of considering and redacting the records where necessary.  Whilst it was recognised that this exercise came late in the day I was informed that it was now being attended to with diligence, the team members concerned even working “overtime” at weekends.  However, he was unable to explain what had been done with the case during the period of around 10 months between March 2013 and January 2014, given that it had already been through the pre-petition procedure.  As I understood him few of the 15 witness listed on the indictment had in fact been precognosced anyway.   Nor was he able to explain why it had taken some 7 ½ weeks for Crown counsel to issue an instruction in early 2013.  I was concerned at the prospect of fixing a further preliminary hearing so far in the future and at the consequential delay in fixing a trial in relation to an incident which had occurred more than two years previously.  In all of these circumstances I did not consider that I was sufficiently well informed to make an appropriate decision.  The case was therefore continued until 30 April so that I could be addressed in detail on the case history and to consider informed submissions on the question of extending the statutory time bar period. 

[7]        On 30 April I was addressed by a different advocate depute.  I was informed that sections of the complainer’s social work records which were thought likely to be of interest to the defence had been provided to the accused’s agents on 25 April 2014 and the defence had been informed that the records as a whole were available for perusal at the procurator fiscal’s office.  The Crown had no intention of lodging any of this material themselves and were in a position to have a trial diet fixed.

[8]        The advocate depute acknowledged that delays in reporting or taking action had occurred in the present case.  Her first submission was that such delay or inactivity as was identified should be viewed in in what was said to have been the increased volume of reported sexual offences. 

[9]        In support of the second submission the advocate depute came to make I was told that there was a system of prioritising cases received for marking in the National Sex Crimes Unit and that this system had been applied to the present case on its receipt in January 2013.  The implication appeared to be that other cases waited in the queue for a shorter, similar, or longer period.  I was not told what periods other cases waited for nor what the longest period before marking had been.  Having explained the system of queuing, and having referred to the increased volume of cases, the submission made was that the present case was marked by Crown counsel “as soon as possible in the circumstances”. 

[10]      As I understood the Crown’s position, initially it was that whilst there might have been an element of delay in progressing the case and in providing material to the defence, the two submissions identified would provide an explanation which would entitle me to grant an extension of the time bar period.  In the end of the day though, as I shall explain, the matter came to be seen through a rather different lens and the Crown’s admissions of delay came to play a less central role.  It may nevertheless be worth taking a moment or two to examine the propositions advanced. 

[11]      It is the experience of the court that sexual offences have come to feature in a large number of cases presented in the High Court.  However, the number of indictments registered in the High Court has remained fairly level over the last few years at around the 750 mark.  In the year 2012 to 2013 which would have been the period during which the case sat unmarked for over 7 weeks the number was 751.  Whilst for the year 2013 to 2014 the number did increase to 829, this is still far short of the numbers presented in the previous decade, when the figure tended to average around 1,200 and was in some years as high as 1,500.  Since around 2008 the number of indictments presented each year in the High Court has reduced significantly. 

[12]      Whilst I accept that the bare number of cases presented in the High Court will not be a good measure of the work load in a given procurator fiscal’s office, the history of the progress of any given case requires to be examined in the context of the statutory provisions designed to prevent delay in a trial taking place rather than any other considerations.  It is well recognised that these important provisions must be applied to all cases and that resource issues will not generally excuse non-compliance.

[13]      Despite the general approach urged upon me by the advocate depute, I was given no information about the numbers of cases dealt with by the procurator fiscal’s office concerned during the year 2013, or what the individual member of staff’s work load was.  Nor, significantly, was I told why supervisory legal staff did not pick up on any deficiencies in the progress of the case. 

[14]      In terms of Crown counsel’s involvement, I appreciate that at the marking stage Crown counsel may be dealing with more than just cases which come to be prosecuted in the High Court.  Nevertheless, historically, the convention was that cases sent for Crown counsel’s instruction, other than those which were exceptionally complicated, were marked on the day of receipt.  I was informed that this convention still operates and that it was hoped that it would be re-instated across all areas of Crown counsel’s instructions once there had been an increase in the staffing level of the National Sex Crimes Unit.  I took that to convey that the convention had not been operating in that Unit for some time.

[15]      I was given no information concerning the number of cases reported for Crown counsel’s instruction in the period January to March 2013, nor any information as to how many advocates depute were allocated to the process of case marking.  No information was given to suggest that there was an unduly burdensome requirement on the cadre as a whole at that time.  Although I was told that the number of advocates depute in the national Sex Crimes Unit is to increase imminently, I was not told of any steps taken in January, February or March 2013 to address the build-up of cases.  Given the importance which has historically been attached to the independent case marking function of the advocates depute I found it very surprising that a case would not be marked for so long as 7 ½ weeks.  I found it equally surprising that the explanation offered made it plain that the present case was not unique in this respect and seemed to imply that substantial delays in marking have been a common feature for some time.  In the absence of underpinning figures and explanations though I saw little merit in the general submission advanced by the advocate depute to the effect that the case history should be seen in the context of an increased workload of sexual cases and I found it impossible to accept the submission that the present case was marked by Crown counsel as soon as possible in the circumstances. 

[16]      The submission presented on the accused’s behalf by Mr Pollock was that he had a right to be tried within a period of 1 year from first appearance on petition.  In combination with this right, section 121(2) of the Criminal Justice and Licensing (Scotland) Act 2010 (“the 2010 Act”) gave the accused a right to disclosure of relevant material held by the Crown as soon as practicable after the accused’s appearance on petition.  The import of this statutory entitlement to early disclosure was that the accused had a right to be able to fully prepare his case in sufficient time to take advantage of his right to be tried within the one year period. 

[17]      Mr Pollock informed me that the agents for the accused wrote to the procurator fiscal on 12 August 2013 asking for disclosure of the complainer’s social work records.  This request was prompted by a disclosed witness statement which indicated that the Crown had taken an interest in recovering records of this nature.  The precognition officer responsible replied by letter dated 20 August saying that she had only recently been allocated the case and would provide a copy of the records once she received them.  They were, apparently unbeknown to the person tasked with case preparation, of course already held.  A further letter was sent on 30 December 2013 asking about disclosure of records, to which no reply was received. 

[18]      Mr Pollock submitted that the defence was not in a position to proceed to trial at this stage.  It would be necessary to instruct an expert to consider the material disclosed, along with perhaps the remaining material, and that advice would inform the decision as to whether an application in terms of section 275 of the 1995 Act would be necessary.  It might be necessary to recover the complainer’s medical records as well.  This whole process would take many weeks and likely run into months.  The outcome was that the accused would be unable to proceed to trial until a point well after the expiry of the 12 month time bar period which applied.  Mr Pollock submitted that the cause of this state of affairs was the delays in preparing the case which the advocate depute had acknowledged and the crown’s failure to disclose the relevant records in terms of the obligation to do so as soon as practicable. 

[19]      As explained in the case of Early v HM Advocate [2006] SCCR 583, the first task for a judge hearing an application to extend the 12 month statutory time bar period is to consider whether the Crown has shown a reason that might be sufficient to justify the extension sought.  If it has, the judge must go on to consider whether he is prepared, in the exercise of his discretion, to extend the period for that reason.   At the first stage it will be relevant to consider whether the reason advanced for the application is one for which the Crown are responsible.  If the application is necessitated by an error on the part of the Crown the court must consider what the error was and why it occurred.  The case of Stenton v HM Advocate 1998 SLT 594 made it plain that an error by the Crown is not necessarily fatal to an application but that it is not enough for the Crown to merely show that an error was made.  They must explain why it was made and, before any question of discretion arises, the explanation must satisfy the court that the error is capable of being excused.

[20]      If the basis of the application before me had correctly been focussed on the conduct of the Crown the submissions made by the advocate depute might have carried little weight.  However, as the discussion developed, it became clear that the issue was rather different.  Three points emerged.

[21]      First, it became obvious that the original information given to me by the Crown did not properly reflect the input of the precognition officer concerned.  When the case was sent to Crown Office in January 2014 she had made reference to the social work records which had been recovered.  It was noted that those records contained references to previous allegations of sexual abuse.  The precognition officer’s view seems to have been that the material recovered was of no relevance to the issue in the case.

[22]      Secondly, the extent of defence preparation came into focus.  The defence had been alerted to the possibility of relevant social work records at a point no later than August of 2013.  They did not follow up their August enquiry until 30 December 2013.  In the course of the hearing on 30 April I was informed that the precognition officer had written to the agents for the accused on 11 December 2013, explaining that the complainer had made allegations of rape and other forms of sexual abuse in 2005, 2006, 2008 and 2010.  Some information was provided as to what had become of each of these allegations.  Despite the content of this letter, no effort was made to secure recovery of the material beyond writing the letter of 30 December, which made no mention of the 11 December letter.  It simply referred to statements disclosed in November and asked if the social work records were “likely to be disclosed in the foreseeable future”.   

[23]      The case of HM Advocate v Forrester 2007 SCCR 216 makes it plain that, in addition to the duty of disclosure imposed upon the Crown, there is a duty on the defence to do what they reasonably can to fully prepare their case prior to the preliminary hearing.  The defence must have been aware of the impending deadline for service of the indictment and the consequential shrinking of their window of opportunity for pre-indictment preparation.  As was acknowledged by Mr Pollock, more could have been done by the defence team to advance their enquiries. 

[24]      Thirdly, despite the initial acknowledgement of delays on the part of the Crown and the weak explanations advanced, in response to a question from me, the issue of whether the Crown had been in breach of any duty owed to the accused at all came into sharp focus.  Section 121 of the 2010 Act imposes a statutory duty of disclosure on the Crown.  It reflects, in combined statutory form, the common law duty to disclose information which would materially weaken the Crown’s case or which would materially strengthen the defence case, as set out in MacLeod v HM Advocate 1997 J.C.  212, and the duty of disclosure of the Crown’s own case as set out in Holland v HM Advocate 2005 S.C. (P.C.) 3.  The part of the section which identifies the material to which the obligation of disclosure attaches reads:

            “(3) This section applies to information if –

1. the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
2. the information would materially strengthen the accused’s case, or
3. the information is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.”

[25]      The advocate depute did not accept that the social work records disclosed false complaints of sexual abuse made by the complainer.  Whilst certain complaints were withdrawn by her she provided explanations for doing so which, with one possible complicated explanation, did not amount to admissions of lying.  The advocate depute therefore contended that the material referred to would be collateral to the issues in the present case and would not constitute relevant admissible evidence.  The statutory obligation did not extend to a duty to disclose information which could not be led in evidence and there had been no breach of duty by the Crown.  This in fact appeared to have been the tenor of the view formed by the precognition officer when the case had been sent as a final report for Crown counsel’s decision.

[26]      In my view there is force in the Crown’s contention that there is no obligation to disclose material which cannot be admitted in evidence.  Experience shows that the Crown frequently approach their disclosure obligations in a generous manner.  Information is often provided to the defence over and above a strict interpretation of the statutory requirement.  Such conduct does not bind the Crown in any manner and it does not constitute an acknowledgment that the material provided may be used in evidence.  It is common enough to see the Crown oppose an application made under section 275 of the 1995 Act which is made on the basis of information which they themselves have provided to the defence.  In the present case general information was provided to the defence 2 months before service of the indictment concerning previous allegations made by the complainer. 

[27]      As pointed out above, the defence did little to advance any wish to be provided with the records mentioned in the 11 December letter.  In particular, they did not assert a right to have the underlying records disclosed.  In conjunction with the statutory duty to disclose, section 128 of the 2010 Act provides a procedure through which the defence can apply to the court for a ruling on whether the prosecutor’s duty of disclosure applies to information specified in the defence statement lodged in terms of section 70A of the 1995 Act.  The application to adjourn the preliminary hearing was made on 6 March 2014.  It stated that a period of 4 weeks would be sufficient to allow for disclosure of the voluminous records.  The defence statement was lodged on 11 April, which on any view was well out of time, but it still called upon the Crown to disclose full copies of the complainer’s social work files together with a full copy of her medical records.  The issue of disclosure had therefore plainly not been resolved by this time, as was subsequentely made clear to me at the hearing.  This document also conveyed the first mention of any interest in medical records.  No application has been made to the court for a ruling in terms of section 128 of the 2010 Act concerning the social work records and no application has yet been made for recovery of the complainer’s medical records, which the Crown do not hold.

[28]      It is obvious from the case of CJM (No 2) v HM Advocate [2013] HCJAC 22 that complaints of previous sexual abuse made against other individuals are likely to constitute collateral evidence and therefore be inadmissible at common law.  In advance of a debate on the admissibility of the content of the complainer’s records I cannot conclude that the Crown have breached an obligation to timeously disclose information which would materially weaken or undermine the evidence to be led by the prosecutor.  I cannot therefore conclude that the application for an extension of the 12 month time bar period is necessary because of fault on the part of the Crown. 

[29]      The reality of the situation is that the defence seek an opportunity to consider whether any of the information contained within the complainer’s social work records might constitute admissible evidence and, if so, might found a successful application under section 275 of the 1995 Act for permission to allow questioning.  They also seek an opportunity to recover her medical records for the same purposes.  It is this desire to carry out further enquiries at this late stage which necessitates the Crown’s application for an extension of the time bar period.  What the outcome of these enquiries will be is far from clear.  What is clear though is that efforts which could have been made to advance these enquiries earlier were not made and, in so far as the medical records are concerned, have not even yet been made.  In saying this I accept that the defence may to some extent have been lulled into a false sense of security by the terms of the precognition officer’s letter of 20 August 2013.  However, the defence have an obligation to monitor and drive their own case preparation.  In my view, that necessitated a firmer approach in the unfolding circumstances of the present case.  I also observe that in entering into a joint application to adjourn the original preliminary hearing set for 11 March 2014, and jointly requesting court to extend both time bar periods, it might be thought that the defence were waiving any right to be fully prepared in time for a trial within 12 months.  However that point was not taken.   

[30]      In the circumstances as set out it became clear that there was a good reason identified for the application to extend the 12 month time bar period and I was prepared to do so.  It is obvious though that the present case has taken a surprising amount of time to reach the point of indictment.  However, it was indicted in time to take advantage of the last possible day of the 11 month time bar period.  The pre‑petition process is not taken account of in the statutory regime.  Whether it is acceptable or appropriate that a complaint of a serious crime made by a vulnerable member of society should take almost two full years to be brought to a first hearing in the High Court is a different matter.  It will likely be some time yet before the case comes to trial.  The interests of justice are not well served by such a lengthy delay and that passage of time must impose a tremendous strain on both the complainer and the accused. 

[31]      The indictment in this case alleges the commission of a very serious crime.  However it appears to reflect an uncomplicated case.  Only 15 witnesses are listed, of which at least seven appear to be police officers or formal witnesses.  The list of productions contains five items and there is one label production.  The Crown introduced a report dated 3 December 2013 from a psychiatrist by section 67 notice.  It deals with issues concerning the complainer’s learning disability and is generally directed towards the question of special measures and the complainer’s ability to give evidence.  The Crown Office and Procurator Fiscal Service web site has a section in which it draws attention to what it states are its priorities.  In that section it explains that:

            “COPFS has prioritised some categories of cases due to the

seriousness of the crimes and the impact on victims and communities.”

Sexual crime is listed as one of the categories of crime to which such priority is given.  In the history and explanations given to me it was not possible to detect the application of this policy to the circumstances of the present case. 

[32]      I will fix a continued preliminary hearing for 23 June of this year to call in the High Court at Edinburgh.  I will meantime extend the 12 month time bar period so as it expires on that date.