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APPEALS UNDER SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY HER MAJESTY'S ADVOCATE AGAINST GRAHAM CLARKE, LINDSAY CLARKE, NEIL ANDERSON, MARILYN NIXON, KEITH NIXON, YVONNE DAVIDSON, FRANCIS ANDREWS


Submitted: 23 October 2015

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 2

HCA/2015/003327/XC

HCA/2015/003328/XC

HCA/2015/003329 XC

HCA/2015/003330/XC

HCA/2015/003331/XC

HCA/2015/003332/XC

HCA/2015/003333/XC

Lady Paton

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEALS UNDER SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

HER MAJESTY’S ADVOCATE

Appellant;

against

GRAHAM CLARKE, LINDSAY CLARKE, NEIL ANDERSON, MARILYN NIXON, KEITH NIXON, YVONNE DAVIDSON, FRANCIS ANDREWS

Respondents:

Appellant:  Bain AD, Smith;   Crown Agent

First Respondent: Findlay QC, Young;  Gildeas

Second Respondent:  Jackson QC, Arrol;  Doonan McCaig & Co

Third Respondent:  Ogg QC;  Gildeas

Fourth Respondent: Finnieston Solicitor Advocate;  Finnieston Franchi & McWilliams

Fifth Respondent:  Richards QC, Gianni;  Stephen Brady & Co

Sixth Respondent: Stewart QC;  Penmans (Possilpark)

Seventh Respondent: Targowski QC, Considine;  Fitzpatrick & Co (Glasgow)

23 October 2015

[1]        The respondents were indicted to a preliminary hearing in the High Court on 3 November 2014.  The charges included contraventions of the Misuse of Drugs Act 1971, together with associated charges under the Proceeds of Crime Act 2002 and charges of fraud.  At the preliminary hearing a trial was fixed for 21 September 2015.  At a continued preliminary hearing on 4 September 2015 the trial was adjourned to 12 October 2015.  On 5 October 2015 in terms of section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995, the Crown made an application further to extend the 11 and 12 month time limits; these had already been extended when the trial was fixed.  The judge who heard the application, who is the judge appointed to preside over the trial, refused it; it is convenient to refer to her as “the trial judge”.  Against that refusal the Crown has appealed to this court. 

[2]        Between April and August 2015 defence forensic accountant reports were being prepared.  At preliminary hearings during that period the Crown indicated that time would be required for the Crown accountant to review the defence expert reports after they were produced.  These reports were provided to the Crown towards the end of August 2015.  At the continued preliminary hearing on 4 September 2015 the advocate depute moved the court to postpone the trial diet for a period of at least 8 weeks to allow the Crown accountant an opportunity to respond to the reports.  That would have resulted in the trial being continued until the end of October.  The advocate depute made an associated motion to extend the 12 month time bar.  The trial judge agreed to postpone the trial diet for a shorter period to 12 October and continued the preliminary hearing until 5 October.  At the continued preliminary hearing on 5 October 2015 the advocate depute informed the court that the Crown expert might take 3 months to complete a supplementary report.  She explained, however, that she was no longer seeking to postpone the start of the trial for that purpose.  Instead, she moved to extend the 11 and 12 month time bars respectively to 11 January and 11 February 2016 with a view to the Crown deserting the current indictment and re-indicting to include fresh charges against the first respondent. 

[3]        The background to this new motion was that on 9 September 2015 the Crown had received new information to the effect that the first respondent may have committed other offences.  He had appeared on petition in respect of these matters on 18 September 2013 when he was fully committed.  A copy of the petition was provided to the trial judge who described the new charges as follows:

“In essence the new charges allege attempted murder, wilful or reckless destruction or damage to property, statutory breach of the peace and attempting to pervert the course of justice.  The complainer in the charge is James Carroll.  According to the Crown information the first respondent committed acts of violence and threats against Mr Carroll in an attempt to induce him to give evidence supportive of the defence at his trial.  James Carroll is not a witness in the current indictment nor is he on any defence list”.

 

[4]        Before the trial judge the advocate depute maintained that the new evidence available to the Crown about the first respondent was highly relevant to the existing charges on the indictment and would “transform” the case.  She submitted that it was clear that the first and second respondents would present “a legitimate business defence” to the charges under the Proceeds of Crime Act.  The involvement of James Carroll was apparently that about two or three years earlier he and his wife had been involved in a proposed business venture with the first and second respondents.  There had been a breakdown in the relationship between the two couples.  The Crown alleged that the first respondent then asked James Carroll to come to court as a witness at the trial in the current proceedings and give evidence that he had given certain monies to the first and second respondents at a different time and for a reason other than the proposed business venture.  It was alleged that on Mr Carroll refusing to do this he was threatened by the first respondent and others.  The advocate depute submitted to the trial judge that the charges should be heard alongside the existing charges.  She estimated that the earliest day on which the Crown could serve a new indictment would be 14 December 2015.

[5]        The application before the trial judge was opposed by all respondents.  Senior counsel on behalf of the first respondent had made an offer to the Crown that if the Crown wished to incorporate the fresh charges, the first respondent would be in a position to meet them in the current trial.  Mr Findlay QC had advised the Crown that he was prepared to waive the induciae and had invited the advocate depute to proceed to serve a fresh indictment.  So far as further investigations by the Crown were concerned, these appeared to relate to telephone records and Mr Findlay undertook, if necessary, to lodge any telephone records which could not be lodged by section 67 notice.  In addition, he had suggested to the Crown that as an alternative a docquet could be added to the current indictment in relation to any fresh allegations.

[6]        On behalf of the second respondent Mr Jackson QC submitted to the trial judge that no good reason had been given by the Crown as to why the Crown could not add these charges to the indictment or include them in a docquet.  There would only be 4 or 5 witness relevant to the fresh application.  The only reason for further delay was the recovery of the phone records.  It was not clear why the Crown could not recover these more quickly than had been suggested, namely a period of eight weeks.  There would be plenty of time in the trial to introduce these matters.  There was prejudice to the second respondent.  She had no passport, she was unable to deal with property related matters, she had young children and had to sign on at a police office every second day.  The proceedings had been hanging over all of the respondents for a considerable period of time.  Several experienced senior counsel had been committed to the trial and if they were to remain instructed it would be unlikely that a fresh trial could commence until perhaps as late as the autumn of 2016.

[7]        Mr Ogg QC for the third respondent pointed out to the trial judge that the allegations in the new petition fell wholly outwith the period of the indictment and were collateral to the issues before the court.  The time limit was a very important one. 

[8]        Mr Finnieston for the fourth respondent advised the trial judge that the respondent was a lady in late middle age who had had considerable stress waiting for the trial while caring for her 90 year old mother.

[9]        Mrs Richards QC for the fifth respondent explained to the trial judge that the fifth respondent was married to the fourth respondent and was 62 years of age.  His pension had been frozen in terms of a restraint order and he did not receive any state benefits.

[10]      Mr Stewart QC for the sixth respondent told the trial judge that the waiting had had a debilitating effect on the respondent who had first been detained in relation to these matters in 2011.

[11]      Mr Targowski QC for the seventh respondent adopted the earlier submissions.

[12]      The trial judge approached the application by applying the well recognised two-stage test in Swift v HM Advocate 1984 JC 83.  In considering the first stage, she addressed the question as to whether the Crown had shown sufficient reason which might justify the extension.  The trial judge described the reason as the existence of new material in a petition that related to the first respondent only.  The complainer on the charges on the petition was not currently a witness of the trial, so no issue arose of there being a witness on the indictment who claimed that he or she had been intimidated.  There were two possible scenarios in relation to the fresh allegations.  The first was that the Crown investigations were at an early stage and would take some time to complete.  If so, given the stage of preparation that had been reached for this trial, such investigations should not be allowed to disrupt the trial as it could not be said with certainty that an indictment might ever come out of these investigations.  On the other hand, if the Crown had sufficient evidence to prosecute the matters on the petition, they had the option of either appending a docquet to the current indictment or producing a fresh indictment, counsel having offered to waive any period of notice on that.  There was a good argument on the face of it that the allegations in the fresh petition were of a very different nature to the charges on the indictment.  It seemed to the trial judge to be inappropriate to jettison a trial which was expected to last for at least twelve weeks in order to wait and see what the Crown decided to do with the petition charges in a situation where they might never be tried together with the current charges.  Accordingly, the trial judge decided that the Crown had failed to show sufficient reason why the time bar should be extended.

[13]      The trial judge went on to say that if the Crown had shown sufficient reason for the extension, she would not have been prepared at the second stage to exercise her discretion in favour of the Crown’s application.  She considered that the prejudice to the respondents, particularly the third to seventh respondents who were not involved, either directly or by the relationship to the first respondent, in these fresh charges and who had already waited a significant length of time for the trial to commence would outweigh any prejudice to the Crown in not being able to pursue these arguably collateral matters at the forthcoming trial. 

[14]      Before us the advocate depute referred to the Crown written submissions.  The reason which might justify the extension was that the Crown had obtained additional information of serious new charges at a stage at which it was too late to indict along with the current charges without the need for an extension of time.  She relied on a number of cases including Campbell v Ritchie 1999 SCCR 914 at page 916;  Allan v HM Advocate 2005 SCCR 613 at paragraphs [5], [7] and [8] and Lauchlan and O’Neill v HM Advocate [2012] HCJAC 137 at paragraphs [13] and [23]. 

[15]      The trial judge had failed to take account of the nexus between the new allegations and the present indictment.  The new allegations could have a significant impact on the way that the trial was conducted.   By describing the new allegations as being of a very different nature to the charges on the indictment and arguably collateral, the trial judge had misdirected herself.  The allegations that the first respondent had attempted by violence to obtain false evidence in his support of his defence were relevant and not collateral to the charges in the present indictment.  The judge’s observation that the new material related only to the first respondent was incorrect; the new charges had implications for the proof of the charges against all of the respondents.  Evidence that the first respondent had threatened another person to obtain false evidence to the effect that money was not criminal property and attempted to murder the person when he refused to cooperate was evidence of guilty knowledge that the money concerned was criminal property.  It was an essential part of the Crown case against all of the respondents that the first respondent was in possession of money which was criminal property and that the others acted knowing that it was criminal property.  It was incorrect to say that the evidence of guilty knowledge on behalf of the first respondent affected only the case against him.

[16]      The trial judge had given undue weight to the inconvenience to the court diary if this trial slot was lost.  She had failed to give appropriate weight to the public interest in properly investigating new allegations prior to serving an indictment or giving notice of charges on a docquet appended to an indictment. 

[17]      The Crown required time to investigate the new alleged offences.  These investigations had commenced and included the taking of statements and precognitions, recovery of CCTV footage, banking and telephone records and the interrogation of a mobile phone.  The recovery of telephone records would take a minimum of 8 weeks.  Thereafter, the procurator fiscal would require to have the telephone records analysed, await receipt of the analysis, disclose all the new evidence, report to the Crown Office and receive instructions and, if appropriate, serve a fresh indictment containing all additional charges, witnesses and productions.  We pause to observe that it is clear that by the time of the hearing before us the Crown had advanced considerably in the preparation of the case on the new petition. 

[18]      In relation to the offer made by the defence to cooperate to include in the new charges in some way in the present trial, it was not reasonable to complete the further investigations in time to include either an additional charge or a docquet for the trial diet which was fixed for 26 October 2015.  This was particularly the case when account was taken of the other investigations which were ongoing in the light of the late production by the respondents of lists of witnesses and productions.  The Crown did not anticipate being in a position to indict until mid-December 2015 and it would be irresponsible of the Crown and in breach of their public duty to attempt to include these charges without proper and full investigation of the evidence.  The offer by the first respondent to lodge the telephone records was illusory:  additional productions could only be lodged on cause shown and it would therefore be a matter for the court whether to allow them in.  It was submitted it was desirable that all matters in relation to a respondent person should be tried together. 

[19]      Before us Mr Findlay renewed his offer in relation to the addition of the charges either in the form of a new indictment or as a docquet to the existing indictment and his undertaking to cooperate in the lodging of any outstanding productions.  On behalf of the second appellant Mr Jackson submitted that it was difficult to understand the Crown’s position that these matters could not now be dealt with on the present indictment.  It was a ridiculous proposition to suggest that in relation to lodging of productions the Crown would be reliant on the court allowing the productions to be lodged.  It would be unthinkable that in the circumstances of this case the court would refuse to allow the productions to be lodged.  The remaining counsel broadly reiterated the submissions made before the trial judge.

[20]      We did not find the cases on which the advocate depute relied to be of much assistance.  The circumstances in the present case are very different.  In none of these cases had an indictment been served.  In Campbell v Ritchie the appellant appeared on petition on charges of assault and attempted rape against the same woman on the same date. Later he appeared on petition on similar charges in relation to another woman. The Crown sought an extension of the 12 month period in relation to the first petition. The Sheriff granted the extension and the High Court held that the material necessary to supplement the original charges by reference to the Moorov doctrine had come into existence later and that was a cause potentially justifying an extension of time.  In Allan v HM Advocate the appellant appeared on petition on charges of bogus workmen frauds against elderly people. He subsequently appeared on petition in other sheriff courts on similar charges. The procurator fiscal sought an extension of the 12 month period in respect of the first petition on the ground that the Crown wished that all charges against the appellant should be indicted together. The court held that the desire of the Crown to have analogous matters tried together, particularly when they constitute a course of conduct, may constitute such a reason.  In Lauchlan and O’Neill v HM Advocate evidence came to light which had not been available within the time-limit, no proceedings having been taken in relation to the matters on the petition. The court held that such a change of circumstances could amount to “cause shown”. 

[21]      While we accept the submission of the advocate depute that the trial judge may not have fully recognised the relevance of the new charges, particularly charge 5 on the petition, to the matters on the indictment, we do not consider that that undermines her overall conclusion.  The analysis at pages 10 to 11 of her report, noted above, explain how she came to the conclusion that the Crown had failed to show sufficient reason which might justify the extension.  In our view that analysis is not open to challenge.  It is clear from the information placed before us today that the stage at which the Crown has now reached in its preparations of the new case puts the Crown in an even stronger position to include the charges in one way or another in the existing case.  In any event, the Crown state that they would be in a position to serve an indictment in mid-December, thus indicating that they would then be in a position to proceed.  We were advised that it would be unlikely that the issues raised in the new charges would be reached before a period of two months had elapsed in a trial which is expected to last for around three months.  Thus it seems to us that there would ample time for any outstanding matters to be dealt with in the margins of the trial. 

[22]      Accordingly, we are satisfied that the trial judge was entitled to conclude that the Crown had failed to satisfy the first stage of the test in Swift and had failed to show sufficient reason which might justify the extension.  At the stage of exercising discretion as to whether to grant the extension where sufficient reason has been shown the judge will take into account considerations such as the nature of the charges, particularly their seriousness, the public interest, the presence or absence of any prejudice to the accused and the length of the extension sought (Early v HM Advocate 2007 JC 50 at paragraph [11]).  While in the circumstances of this case it is not necessary for us to form a concluded view on the question of the exercise of discretion by the trial judge, we observe that it is of particular note that the consequence of the refusal of the extension was not that the Crown would be unable to prosecute serious charges;  in this case that issue, which often features in such applications, did not arise. The trial judge was entitled to have regard to the prejudice to the respondents, particularly the third to seventh respondents.  In our view the indication by the trial judge as to how she would have exercised her discretion is not open to criticism.

[23]      In all the circumstances the appeal must be refused.