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[2017] HCJAC 34


Lord Bracadale

Lord Drummond Young

Lady Clark of Calton


delivered by LORD BRACADALE










Appellant:  McKenzie;  Faculty Services Ltd

Respondent:  Niven Smith;  Crown Agent

15 July 2016

[1]        The appellant was indicted at the Sheriff Court at Airdrie on a charge of contravening the Civic Government (Scotland) Act 1980 sections 52 and 52A in respect of indecent images of children.  Having appeared on petition on 12 December 2014 and admitted to bail, he was indicted for trial in October 2015.  The first diet on 6 October was continued on defence motion to 13 October where the trial was adjourned until January 2016 to allow further time for defence preparation. 

[2]        The 12 month time bar was extended to the end of January.  The sheriff says that as at the first diet on 30 December 2015 it appeared that the trial in the sitting commencing 11 January 2016 would proceed.  At the trial diet there was, however, a significant development in the case.  The defence made a motion to lodge late an inventory of productions and a list of witnesses.  These related to fresh material said to be in respect of the purchase of the laptop which had been seized by the police.  The appellant’s position now was that the images must already have been on the laptop when he purchased it.  In response the Crown moved for an adjournment of the trial until March 2016 in order to investigate the new matter raised by the defence.  The time bar was extended until 1 April 2016;  these motions were not opposed. 

[3]        At the first diet on 15 March 2016 the Crown moved for a further adjournment of the trial because the investigations into the new matter were not complete.  The Crown was still making enquiries with the Cybercrime Unit and were awaiting the results of checks of bank accounts.  Although the motion was opposed it was granted and the trial was adjourned to the sitting commencing 23 May 2016 with a first diet on 10 May.  The time bar was extended until 3 June. 

[4]        At the first diet on 10 May the Crown made a further motion to adjourn the trial to the sitting commencing 20 June.  The sheriff granted the motion and extended the time bar until 24 June.  It is against that decision that the appellant has appealed to this court. 

[5]        In seeking the adjournment and extension on 10 May the Crown submitted to the sheriff that the new matter had first been raised on 8 January 2016, three days before the trial diet.  The defence productions comprised print-outs from Amazon in respect of the purchase of a laptop and also bank statements. 

[6]        The Crown had obtained the serial number of the seized laptop and made enquiries with Amazon.  These enquiries took time but ultimately the investigation had been unsuccessful in linking the laptop seized to that supplied by Amazon.  The Crown were making enquiries into the bank statements produced by the appellant.  As the headquarters of the bank concerned were in England, warrants required to be obtained in Scotland and warrants of concurrence in England.  Because the records showed payments made on different occasions by the appellant to retailers, including Currys, Argos and Sky, the investigation had led to these retailers.  They would not supply information voluntarily and further time was required to complete the investigation. 

[7]        Before the sheriff the appellant opposed the extension.  The case had had severe consequences for him.  He had lost his employment.  He had experienced difficulty in obtaining new employment, with consequential financial difficulties.  He wanted the matter to be drawn to a conclusion as soon as possible.  The Crown had had more than enough time to complete the investigations.  The appellant had offered his cooperation in pursuing the enquiries, including willingness to supply the Crown directly with material in his possession. 

[8]        In relation to the last matter the Crown told the sheriff that there had been no formal undertaking of cooperation and in any event it was a matter for the Crown to carry out its own investigation. 

[9]        Applying the two stage test in Swift v Her Majesty’s Advocate 1984, JC 83 and Early v Her Majesty’s Advocate 2007 JC 50 the sheriff first considered whether the Crown had shown sufficient reason for the extension of time bar.  He concluded that it had done so.  The need to carry out further investigations resulted from the appellant’s contention, advanced for the first time in January 2016, that his laptop had been supplied by Amazon with the incriminating material already on it. 

[10]      The sheriff was satisfied that the Crown required to carry out investigations into that contention.  Although the investigations had proved time consuming the sheriff considered that the Crown could not reasonably be criticised for the length of time they have taken.  He was satisfied that the Crown had acted reasonably and with reasonable dispatch.  He considered that the Crown was entitled to investigate the matter in its own way. 

[11]      In relation to the second stage, namely, whether to exercise his discretion to grant the extension, the sheriff had regard to the public interest in the prosecution of serious offences.  There had been no fault on the part of the Crown.  He had regard to the concerns of the appellant, he took into account the procedural history of the case and the fact that the time bar had been extended on more than one previous occasion.  The raising of an entirely new matter in January 2016 had been a significant development in the case.  Had that been brought to the attention of the Crown earlier, the investigations would have been completed earlier.  The continuation was not of undue length. 

[12]      Before us, Ms McKenzie advanced the similar submissions to those advanced before the sheriff.  She argued that the Crown had not shown sufficient reason; it was not essential to make further enquiries.  The defence had offered to assist.  There was a question as to whether the enquiries were necessary;  if they were necessary, the length of time they had taken was unexplained and unjustified.  They should have been afforded greater priority.  In relation to the exercise of discretion she submitted that the charges were not of the utmost gravity, the number of images was not large.  The appellant had lost his previous employment and, although he had secured temporary employment, there were ongoing financial consequences for him. 

[13]      The advocate depute submitted that the investigations were necessary because if the defence position was well-founded the prosecution could not continue.  It was necessary in the public interest and the interest of the accused to investigate the matter thoroughly.  Because of various difficulties which had been encountered, the inquiries took longer than expected.  The sheriff had applied the correct test and the exercise of his discretion was not open to criticism. 

[14]      In our opinion the sheriff approached the application by applying the well‑recognised two stage test in Swift.  In considering the first stage he addressed the question as to whether the Crown had shown sufficient reason which might justify the extension.  He identified the reason why the Crown required a further adjournment and extension and he explained in detail the enquiries which the Crown had carried out and the difficulties which had been encountered.  We agree with the advocate depute that the Crown were bound to investigate the new line of defence and it is clear that practical difficulties were experienced in the course of the investigation. 

[15]      In relation to the second stage of exercising discretion at this stage a judge will take into account considerations such as the nature and seriousness of the charges, the public interest, the presence or absence of any prejudice to the accused and the length of the extension sought.  (Early v HM Advocate at paragraph [11]).  We are satisfied that in the exercise of his discretion the sheriff considered all the relevant factors and we cannot criticise him in that regard. 

[16]      For these reasons we shall refuse the appeal.