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Justifying extensions

16 June 14

Latest criminal cases, including applications for extensions of time in solemn cases; sentencing companies; absolute discharge

by Frank Crowe

Extensions: business pressures?

A number of appeals have arisen recently in solemn cases. The two-stage test is well settled that there needs to be sufficient reason to grant the extension, and circumstances sufficient for the judge to exercise discretion to grant it: Swift v HM Advocate 1984 JC 83; Early v HM Advocate 2006 SCCR 593.

Due to changes in prosecution policy and (some say) increased detection rates, sheriff and jury cases have increased by 30% in the last four years. This has put pressure on the courts, and Sheriff Principal Bowen’s proposals to improve efficiency are contained in the current Criminal Justice (Scotland) Bill.

In Uruk v HM Advocate [2014] HCJAC 46 (28 February 2014; published 16 May 2014), the appellant was charged with assault to severe injury, permanent disfigurement and danger of life on 7 September 2012. He first appeared on petition on 10 September, and was indicted to a sitting at Paisley Sheriff Court in July 2013. At this sitting the Crown moved to adjourn as the complainer had gone on holiday without informing the Crown. There was no objection; the case was adjourned to a sitting commencing on 1 October. The 12 month time limit was extended to the end of that month.

The appeal court was told that it was normal in Paisley for the Crown to indict around 34 cases to each two-week sitting, due to the unusually low rate of pleas at first diets. At the first diet for the October sitting, it was thought likely that the trial would proceed. By the start of the sitting, 21 cases remained. Of 14 bail cases, five were resolved during the sitting; of two that went to trial, one significantly overran.

A Crown motion to adjourn to a January 2014 sitting was opposed, as the reason cited, “pressure of business”, was not enough to extend the time bar (McGinty v HM Advocate 1984 SCCR 176; Warnes v HM Advocate 2001 JC 110). There had been “churning” by the Crown, and the executive should provide resources. The Crown contended that the problem arose because the complainer had gone on holiday in July.

The court refused the appeal. Convention law had lessened the effect of Warnes: Spiers v Ruddy 2009 SC (PC) 1 at paras 25-26. Under the Judiciary and Courts (Scotland) Act 2008, responsibility for the efficient disposal of business lay with the sheriff principal. Assuming a case was indicted in sufficient time (as here), adjournments were for the court to determine in the interests of justice.

Extensions: balancing interests

In Collins v HM Advocate [2014] HCJAC 167 (19 December 2013; published 20 May 2014), appeal was taken against retrospective extensions of the 11 and 12 month periods in respect of two petitions. The appellant first appeared on 16 May 2008, charged with rape on the previous day. On 23 May, the complainer wrote to the Crown seeking to have the charge dropped. In September and October, she provided statements that the complaint was false; on 3 November 2008 Crown counsel instructed no proceedings.

The appellant appeared on a second petition on 29 June 2010 charged with assault to severe injury and permanent disfigurement the previous day involving the same complainer. In further statements, the complainer said the earlier allegation had been true. The appellant was indicted on the assault charge and remanded for trial in October. The complainer disappeared and a warrant was granted for her arrest on 6 October. The trial was deserted pro loco et tempore in December 2010. She was traced in January 2012, and gave further statements leading to identification of another complainer. The appellant appeared on a fresh petition on 10 June 2013 containing six charges, including those from 2008 and 2010, and was remanded. The Crown proposed to indict the case for trial in September.

Granting the extensions, the sheriff concluded that the complainer’s withdrawing the rape charge and subsequently disappearing was due to fear of the appellant. There was no fault on the part of the Crown, the charges were grave and the public interest in bringing the appellant to justice overwhelming. Quashing that decision, the appeal court observed that in balancing the public interest in the prosecution of crime with the public and the accused’s interest in proceedings being pursued efficiently, Parliament had conferred an important right on the accused. The Crown decision not to proceed with the original petition was a conscious one. The appellant was “entitled to place some reliance” on not having been brought to trial within the 12 months. The Crown did not seek to resurrect the allegation in 2010, albeit there was information that the complainer no longer stood by her retraction.

Regarding the 2010 proceedings, it appeared that when the indictment was deserted, the complainer’s arrest warrant was withdrawn by the Crown. The Crown was unable to state what steps had been taken until she reappeared in January 2012. The sheriff had ignored the “extraordinary” further delay before it applied for the extension. The petition did not allege that the appellant had threatened the complainer against giving evidence. The Crown’s submissions were inconsistent, since the suggestion that the time-barred charges “would not really make much difference” was inconsistent with the submission that the charges were serious and should be allowed to proceed.

Extensions: separate trials

In Philips v HM Advocate [2014] HCJAC 51 (21 February 2014; published 21 May 2014), the appellant and his co-accused were charged with being concerned in the supply of drugs and drugs importation in May 2012. The appellant appeared on petition on 1 June. After the case was indicted, there were three extensions of time, two caused by difficulties with disclosure of telephone records and one (to 20 December 2013) resulting from intimation of material potentially supporting the co-accused’s incrimination of the appellant and his partner.

At the trial diet on 16 December 2013, the co-accused moved to lodge late productions and witnesses relevant to incrimination. The sheriff granted that motion. The appellant moved for separation of trials, citing the potential prejudice. Granting the motion, the sheriff extended the time bar until 1 March 2014.

The appellant appealed, contending that the Crown could have proceeded against him at that sitting. The appeal court considered that the sheriff had not erred in relation to the Swift test. While earlier extensions had caused some delay, it was clear that a separation of trials was necessary and various practical matters arose. It is clear that similar cases will arise in the near future. Optimum court arrangements require to be in place, and cases dealt with in proper priority. When extensions are granted, these should run no further than the end of the sitting selected, in order that the court can exercise appropriate control.

It is to be hoped the Bowen proposals can be brought into force soon, as the present “bow wave” of sheriff and jury cases where adjournments are sought is reminiscent of the situation in the High Court prior to the introduction of Lord Bonomy’s reforms.

Sentences on companies

The position on sentencing a company was clarified in HM Advocate v Munro & Sons (Highland) Ltd 2009 SCCR 265 and HM Advocate v Doonin Plant Ltd 2011 JC 81. It is necessary for the court to see comprehensive financial information before imposing a penalty in keeping with the circumstances and the company’s record and commensurate with means.

In 2011, Doonin Plant was fined £8,000, discounted from £10,000, by a sheriff for contravening s 33 of the Environmental Protection Act 1990. This was appealed by the Crown as unduly lenient and a fine of £90,000 substituted, discounted from £100,000.

In Doonin Plant Ltd v HM Advocate [2014] HCJAC 29 (25 February 2014; published 8 April 2014), the company and a director were each found guilty of two contraventions of the 1990 Act whereby waste materials were improperly kept on a site for a period of 25 days, as opposed to 72 days in the earlier case which also involved illegal operations. The company was fined £200,000 in cumulo and appealed.

The company had since ceased trading and had only £50,000 in the bank. The sheriff had made clear however that this was a large-scale operation carried on for profit, and the appeal court was unable to say that the fine was excessive.

Absolute discharge

This outcome seems to occur more frequently nowadays, perhaps due to the reduced use of discretion at earlier stages of the criminal process. In HM Advocate v KH [2014] HCJAC 36 (23 April 2014), the Crown appealed such a disposal as unduly lenient. The respondent had been 16 at the time and the complainer 15. Pupils at the same school, an incident took place in school in which the respondent exposed himself and sexually assaulted the complainer, who pushed him away. The respondent maintained at police interview that the sexual activity had been consensual, but pled guilty at first diet. In mitigation his actions were described as “clumsy, immature, fumbling”. He was now sitting Highers and was a prefect. A background report recommended a three-year community payback order with supervision.

The sheriff had regard to the respondent’s previous good character, and considered it neither just nor expedient to punish him further. The appeal court considered the narrative of the offence sufficiently serious to require “some punitive element in the form of a conviction”, and substituted a one-year community payback order.

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