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It's not over until it's over!

17 April 17

Latest criminal cases, including time bar; delay; Moorov rule; corroboration; threatening or abusive behaviour

by Frank Crowe

Where the court refuses to extend the time bar for proceedings in a solemn case, it does not preclude the Crown subsequently raising a summary complaint.

Potts v Procurator Fiscal, Hamilton [2017] HCJAC 8 (18 January 2017) was the latest decision in this case, earlier reported at 2016 SCCR 109 on the reversal of a sheriff’s decision to extend the 12-month time bar. The appellant was charged with stealing an elderly householder’s hoard of £50,000 cash in a housebreaking in April 2013. Proceedings were raised by petition in August 2013 and the case was indicted to diets in May 2014. There followed a series of continuations at the behest of the appellant but due to late disclosure by the Crown. The time bar was extended to 21 June 2015; on 18 June an extension was sought to recover bank records which would establish that the appellant had deposited a large sum, some of it in old notes. This was granted by the sheriff but subsequently refused by the Appeal Court, which was not impressed by the reason for delay that a junior member of staff had not appreciated that this evidence could be obtained.

After the court’s opinion was issued in October 2015 a summary complaint containing the same charge was served on the appellant. When the 12-month bail time limit was introduced in 1980 and continued by s 65 of the Criminal Procedure (Scotland) Act 1995 (prevention of delay in trials), a failure to bring an accused to trial within that period would result in him being “discharged forthwith and thereafter… forever free from all question or process for that offence”. However, s 73 of the Criminal Procedure and Investigations Act 1996 deleted these words and provided that the effect of such failure would simply be that the accused was “not at any time proceeded against on indictment as respects the offence”.

Challenge was taken on grounds of oppression and abuse of process, but the sheriff allowed the complaint to proceed. The Sheriff Appeal Court refused an appeal (2016 SCCR 412) but granted leave to appeal. The High Court affirmed the ruling, quoting an unreported decision, Withey v HM Advocate, High Court, 13 May 2016, that abuse of process was a form of oppression. The two stage test in Swift v HM Advocate 1984 JC 83 had been deployed in the earlier appeal when the case was on indictment; this had simply brought proceedings in that forum to an end but had not indicated the appellant should not be prosecuted. There was no contention that the delay had prejudiced the appellant receiving a fair trial; the three-year period since the appellant had appeared on petition could not be criticised in ECHR terms.

Delay

Against that background the High Court was very critical of Crown preparation in RW v HM Advocate [2017] HCJAC 17 (9 February 2017).

The appellant, 77 years old, was indicted on charges of sexual offending alleged to have occurred between 55 and 62 years ago when the appellant was aged between 14 and 20 and the complainers five to 15. The case was reported to the fiscal in February 2014; by July all three complainers had been precognosced. The appellant appeared on petition in January 2015. By the time the case was indicted in September 2015 the Victim Information & Advice service had twice reported that one complainer, who lived in England, was housebound and had no internet access. An application to use her statement under s 259 procedure failed due to an inadequate medical certificate being lodged. No steps were taken to secure her evidence by commission procedure until November 2016, more than six months after the matter had been flagged up in court.

Ultimately, after more than a dozen court hearings, the time bar was extended until 23 December 2016 in a trial sitting commencing on 5 December. The matter was further continued in the sitting until 15 December to allow parties to view CCTV of the commission. On that date the Crown indicated a two-accused trial had overrun and would not end until 16 December. In the next scheduled trial, one of two accused was in custody with a time bar of 1 January 2017. The appellant wished his trial to proceed; the Crown foresaw the case spilling over the Christmas holidays but was prepared to proceed. The sheriff adjourned the case ex proprio motu to a sitting commencing 9 January 2017 and granted a Crown motion to extend the time bar to 27 January.

At appeal, the court was critical of the number of preliminary hearings held. I have to say that such a state of affairs has not been unique at sheriff and jury sittings in recent years where cases have been indicted before significant pieces of evidence in the prosecution case have been available or fundamental problems addressed. The position with High Court preparation seems much better and one can appreciate that due to greater gravity those cases will receive priority. Since the Bonomy reforms were enacted in 2004 the Crown has had a longer time for preparation. Finally the Bowen reforms, published in 2010, will come into force between the end of May and August this year. The court will then have control of cases in the way that the High Court has enjoyed for some time.

In the event the custody trial was resolved by a guilty plea on 19 December. The High Court considered the sheriff had misapplied the Swift test and failed to take proper account of the long and protracted nature of the previous proceedings. It is not clear whether the case could have been transferred to another court in the sheriffdom, for example. The court passed the bill and granted the appeal against the extension of the time bar. It will be interesting to see what if anything happens next.

The day after I prepared this article I was presented with a summary complaint involving a robbery in a shop alleging the use of an imitation firearm! This also was a belated “reduction” from solemn proceedings.

Moorov again

Due to the preponderance of cases of historical sexual abuse prosecuted in the High Court, and to a certain extent at lower levels, questions regarding the application of the Moorov doctrine arise on a regular basis.

In Reilly v HM Advocate [2017] HCJAC 5 (8 February 2017) the accused had been convicted of 11 offences of varying types of abuse occurring over a 29-year period and was granted leave to appeal against conviction on eight of these. The case was presented on a Moorov basis; the charges were grouped into those involving physical assaults on women who had been in relationships with the appellant and those involving sexual assaults on the same complainers. The trial judge had given general directions on Moorov; this was criticised at appeal particularly in light of the long gaps between charges of a similar type. The Crown submitted the behaviour complained of arose in the context of various domestic relationships the appellant had entered into, and could be seen as part of a campaign of terror which characterises domestic abuse.

The Appeal Court was clear that the correct approach was to look at the charges in groups of similar offences rather than consider them under the umbrella of “domestic abuse” – a term likely to be clearly defined in forthcoming legislation. It was noted that the period separating two of the rape charges was 20 years, and in the absence of special features the earlier charge could not be said to be part of a course of conduct of the type envisaged in Moorov. However the later charge and three other sexual charges, although separated by a period of four and a half years, had sufficient similarities to permit the application of Moorov. In relation to the assault charges, two were separated by a period of 15 years and the other by nine years, and they could not be said to represent a course of conduct.

Cases of this type involve all sorts of complexities, and when allegations come to light police may undertake an enquiry into previous relationships, resulting in other charges being libelled over an extensive period. Where Moorov is invoked, as is often the case, care has to be taken to determine which charges can be considered with others. Where some charges are eliminated or abandoned, long gaps may appear between the offences, and when this arises the other circumstances require the presence of some special feature making the similarities compelling before Moorov can be deployed. 

Muldoon revisited

Sangster v HM Advocate [2017] HCJAC 4 (7 February 2017) gave rise to consideration of the decision in Muldoon v Herron 1970 JC 30, where the accused’s conviction had been upheld although witnesses who had identified him to the police at the time, denied in evidence that he had been involved. The evidence of the police witnesses at the parades was used to identify the accused and link him to the crime.

In Sangster, a father and son were charged with attempted murder by breaking into a house with others and seriously assaulting the occupant. The complainer identified both appellants, who were known to him. His girlfriend was described as a prevaricating witness but adopted sufficient parts of her statement to corroborate the complainer that the crime had occurred. She had attended VIPER parades and identified the appellants. At trial she said she had lied at the parade and the appellants had not been present during the attack.

It was accepted that given the complainer’s identifications, very little else was required. The reluctant witness had made identifications at the parades in answer to specific questions put by the officer in charge. Jamieson v HM Advocate (No 2) 1994 JC 251, which requires a witness to confirm that a statement to the police was true, did not apply in that context. The evidence of the police officer present at the parades provided a source of evidence pointing to involvement of each appellant. The court also rejected a submission that no reasonable jury would have convicted: while the girlfriend’s evidence was in many respects unsatisfactory, the jury also had the evidence of the complainer and police officer to consider.

Section 38(1)

Burnett v Procurator Fiscal, Hamilton [2017] SAC (Crim) 4 confirms the reach a contravention of s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 has over the common law breach of the peace charge.

The facts were similar to those in Angus v Nisbet 2011 JC 69, where a conviction for breach of the peace was quashed.

In Burnett there was evidence of persistent conduct of an adult man who had invited a lone child, aged 14, to whom he was a stranger, to go with him, followed by a second approach some months later in the early hours. On that occasion when the complainer’s mother had appeared on the scene, the appellant had walked quickly away and when challenged had replied: “I’m no like that.” The three essential elements of the offence were present, namely the behaviour had been threatening, the appellant had either intended it to cause fear or alarm or was reckless as to whether it would do so, and the behaviour when viewed objectively was likely to cause fear and alarm to a reasonable person.

The Sheriff Appeal Court stated: “whether or not the conduct in question amounted to a contravention of s 38 is a matter of fact and degree having regard to the totality of the circumstances”. This is very much like an old school definition of how a charge of breach of the peace may be deployed in all manner of circumstances; suffice to say the new offence goes further and is only limited by the statutory defence.

Frank Crowe, sheriff at Edinburgh

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