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Crown denied historic abuse case time bar extension due to evidence delays

23 March 2017

A 77 year old man has had a prosecution against him for sexual offences said to have been committed more than 55 years ago, ended by the Criminal Appeal Court due to inaction by the Crown in arranging the taking of evidence from a housebound witness.

The man, RW, challenged a sheriff's decision to allow the Crown an extra five weeks to bring the case to trial after it appeared that it could not take place within a diet in December 2016 at Kirkcaldy Sheriff Court.

There were four charges of sexual offences said to have taken place between 55 and 62 years ago, against RW's two sisters and his sister in law, when he was aged between 14 and 20 and the complainers between five and 15. An investigation had begun in March 2011, RW was traced in December 2013 and the case was reported to the procurator fiscal in February 2014. One complainer, MM, was housebound, as was confirmed to the Crown when taking precognitions in subsequent months. She also had no internet access. A video recording taken at her home was suggested. (Her evidence was eventually taken on commission on 30 November 2016.)

RW appeared on petition in January 2015; an indictment was sevred in September 2015 with trial set for October. Fourteen first diets or "continued first diets" took place, with six successive trial diets being fixed up to December 2016 and five extensions of the 12 month period, including the one under challenge. The Crown accepted that from the end of 2015 onwards, the only outstanding issue which stood in the way of a trial commencing was the question of how MM’s evidence was to be secured.

Giving the opinion of the court, Lord Turnbull, who sat with Lord Brodie and Lady Clark of Calton, said it was "simply beyond explaining" how the Crown had dealt with securing MM's evidence. That included a medical certificate to support introducing the evidence by way of statement, which did not meet the statutory requirements, and a subsequent failure to advance the taking of her evidence on commission.

At the time of a first diet on 15 December, another trial had overrun and the next one scheduled involved two accused, one in custody. It was expected to last two days. It appeared to the sheriff that RW's case could not be concluded within the sitting; he adjourned ex proprio motu to the January sitting and granted the Crown an extension of the 12 month period from 23 December to 27 January.

The court disagreed with the sheriff's view "that it was not helpful, in the particular circumstances of this case, to pore over the minutes and examine which party’s motion caused the delay that led to the position which the court was in on 15 December 2016", adding: "The minutes record the case progress, or lack of, and are designed, amongst other things, to provide anyone coming to the case with a history which will inform further decision making."

It did not appear that the sheriff had properly applied the two stage test for an extension of time; he was entitled to take account of inconvenience to witnesses and jurors were it necessary to adjourn the trial over the holiday period, but "We were less persuaded that the sheriff was entitled to give priority to his own view of where the appellant’s best interests lay", given that he had experienced legal representatives.

Lord Turnbull continued: "Of paramount importance though was the case history. As we have set out, the history of the Crown’s efforts throughout 2016 to secure the evidence of MM is highly unsatisfactory and came with no proper explanation or justification." The sheriff had not properly considered the full history, including RW's opposition to earlier adjournments, and his apprehension at being able to accommodate the trial in the December sitting was not justified.

The court concluded: "In making the decision to adjourn the sheriff was in effect making a decision to extend the time bar period. In that context it was necessary for him to take account of the whole history and to assess why the case was in the situation in which it was. Had he done so he could only have concluded that responsibility for the previous lack of progress lay squarely with the Crown.

"A proper assessment of the case history would have led him to conclude that no sufficient reason had been shown which might justify an extension. His statement that he could not understand what prejudice the appellant could be said to suffer in our view demonstrates that he failed properly to appreciate the unjustifiable delays to which we have drawn attention and to take account of the important nature of the right which the appellant had and which he had already been deprived of on a number of previous occasions."

The court reversed both decisions of the sheriff.

Click here to view the opinion of the court.

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