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Docket can refer to charges time barred from indictment: Appeal Court

10 January 2018

The docket procedure under s 288BA of the Criminal Procedure (Scotland) Act 1995 can be used for material which it would be incompetent to include as formal charges in an indictment, the Criminal Appeal Court has ruled.

Lady Paton, Lord Menzies and Lady Clark of Calton allowed an appeal by the Crown against a decision of Lord Glennie concerning an indictment against a man, AD, alleging sexual offences against four complainers between 1973 and 1996.

AD had appeared on petition in 1997 in relation to alleged offences against a fifth complainer, PC, in 1973 and 1974. The 12 month period had been permitted to expire for reasons that the Crown could not now explain, and a retrospective extension to permit these charges to be part of an indictment concerning three complainers including PC had been refused by Lord Burns in February 2017.

In July 2017 Lady Scott had also refused to allow the Crown to lead evidence on the charges relating to PC for evidential purposes only, to support the Moorov rule being applied in relation to other charges, as to do so would be incompetent. Part of her reasoning was the possible use of the docket procedure.

However in August Lord Glennie ruled that the effect of the time bar provisions in s 65 of the Act was that the accused could not be proceeded against "in respect of" the offence: as the indictment included the docket, seeking to prove the matters in the docket was proceeding against the accused “on the indictment” as respects the offences contained within the docket.

On appeal the Crown argued that to include these matters in a docket would not prevent AD having the benefit of s 65; he was not being "proceeded against" on these charges. AD argued that even although there would be no verdict in relation to PC’s complaint, and no sentence was imposed on that matter, such an approach was in effect a trial or proceedings on indictment against him on charges of which he had been discharged.

Delivering the opinion of the court, Lady Paton agreed with Lady Scott that it would have been incompetent to permit an indictment containing those charges to go to trial. However the alleged offences were connected with the offences charged in the indictment in terms of s 288BA(1); the docket was in a form that satisfied subs (3); and by subs (4) it did not matter if the matters referred to could not be competently dealt with by the court in which the indictment was proceeding. There was no restriction in scope, and even if s 65 applied, "in our opinion, the conduct complained of might be included in a docket if it forms part of a sequence of events capable of providing corroboration in terms of the Moorov doctrine".

AD was not being “tried on indictment” or “proceeded against on indictment” for those matters, but for the matters involving the other complainers. "In our opinion therefore, while it is correct that it would be incompetent for the Crown to seek to include in the indictment formal charges 1, 2 and 3, s 288BA(4) expressly permits the Crown to include such incompetent material in the docket."

Nor was there any basis for a plea of oppression.

Click here to view the opnion of the court.

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