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HIGH COURT OF JUSTICIARY
[2007] HCJ03
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OPINION OF LORD
MACKAY OF DRUMADOON
in application
under section 65 of the Criminal Procedure (Scotland)
Act 1995
in the cause
HER MAJESTY'S
ADVOCATE
Applicant
against
DAVID WILLIAM JOHN McPHEE, HUGH DAVID
McPHEE and REHAN ALI AMIN
Respondents
ญญญญญญญญญญญญญญญญญ________________
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Applicant: Jessop, A.D.; Crown Agent
First Respondent: Smart; Nolf & Co
Second Respondent: Thom; Burn
& McGregor
Third Respondent: Freeman, Solicitor Advocate; Beltrami Barlow
31 January 2007
Introduction
[1] This
opinion deals with an application under section 65 (3) of the Criminal
Procedure (Scotland) Act 1995, which the Crown has lodged in respect of an
indictment indicting the three respondents in the High Court at Edinburgh. When the indictment was served on 8 December 2006, notice was also given
to the respondents that a preliminary hearing would take place on 9 January 2007. In view of the adjourned hearings that have
proved necessary in dealing with this application, on joint motion by the
parties, the diet for the preliminary hearing has been adjourned until 6 February 2007.
The statutory
provisions
[2] Section 65
of the 1995 Act is in the following terms:-
"65(1) Subject to subsections (2) and (3) below, an accused shall not be
tried on indictment for any offence unless
(a)
where an indictment has been served on the accused in
respect of the High Court, a preliminary hearing is commenced within the period
of 11 months; and
(b)
in any case, the trial is commenced within the period
of 12 months,
of the first appearance of the accused
on petition in respect of the offence.
(1A) If the preliminary hearing (where subsection (1)(a) above
applies) or the trial is not so commenced, the accused
(a)
shall be discharged forthwith from any indictment as
respects the offence; and
(b)
shall not at any time be proceeded against on
indictment as respects the offence.
.....
(3)
On an application made for the purpose,
(a)
where an indictment has been served on the accused in
respect of the High Court, a single judge of that court may, on cause shown,
extend either or both of the periods of 11 and 12 months specified in
subsection (1) above; or
(b)
in any other case, the sheriff may, on cause shown,
extend the period of 12 months specified in that sub-section."
The first petition
[3] On 9 January 2006 the first and
third respondents appeared on petition at Tain Sheriff
Court ("the first petition"). The reference number of that petition, which
was dated 9 January 2006,
was TA06000068. On 9 January 2006 the first and third respondents
were committed for further examination and remanded in custody. On 17 January
2006 they made a further appearance in Tain
Sheriff Court, when they were fully committed and
released on bail. The 11 month and 12
month time limits in respect of the first petition are 9 December 2006 and 9 January 2007 respectively.
[4] The
charges set out in the first petition were as follows:
"(001) on 6 and 7 January 2006 on roads or other public place, namely
the A99 Wick to Latheron road, the A9 Dunblane to Thurso road between Latheron
Perth and Perth and the Black Isle north of Tore and elsewhere DAVID WILLIAM
JOHN McPHEE did use a motor vehicle, namely motor car registered number L168
NHJ without there being in force in relation to the use of said motor vehicle
by him such a policy of insurance or such a security in respect of third party
risks as complied with the requirements of Part VI of the Road Traffic Act
1988; CONTRARY to the Road Traffic Act
1988, Section 143(1) and (2) as amended.
(002) on 7 January 2006 at an unknown place south of Perth, on the
A9 Dunblane to Thurso road between Perth and the Black Isle north of Tore and
elsewhere you DAVID WILLIAM JOHN McPHEE and REHAN ALI AMIN did have in their possession
a controlled drug, namely a compound or compounds of the type specified in
Paragraph 1(c) of part 1 of Schedule 2 to the aftermentioned
Act, said compound or compounds being commonly known as Ecstasy a Class A
drug in terms of said Act with intent to supply it to another or others in
contravention of Section 4(1) of said Act;
CONTRARY to the Misuse of Drugs
Act 1971, Section 5(3)
and REHAN ALI AMIN did commit
this offence while on bail, having been granted bail on 3 November 2005 at Wick
Sheriff Court.
(003) on 7 January 2006 at an unknown place south of Perth, the A9
Dunblane to Thurso road between Perth and the Black Isle north of Tore and
elsewhere DAVID WILLIAM JOHN McPHEE and REHAN ALI AMIN did have in their
possession a controlled drug, namely Amphetamine a Class B drug specified
in Part II of Schedule 2 to the Misuse of Drugs Act 1971 with intent
to supply it to another or others in contravention of Section 4(1) of said
Act; CONTRARY to the Misuse of Drugs Act
1971, Section 5(3)
and REHAN ALI AMIN did commit
this offence while on bail, having been granted bail on 3 November 2005 at Wick
Sheriff Court.
(004) on 7 January 2006 on the A9 Dunblane to Thurso road between
the Tore roundabout and the entrance to Tore Park Farm having been stopped by a
marked police car and knowing said drugs were in the car in which they were
travelling, DAVID WILLIAM JOHN McPHEE did suddenly drive off and REHAN ALI AMIN
did throw a rucksac containing said drugs from said car and this they did with
the intention of preventing police officers finding them in possession of said
drugs and this they did with intent to pervert the course of justice and they
did attempt to pervert the course of justice
and REHAN ALI AMIN did commit
this offence while on bail, having been granted bail on 3 November 2005 at Wick
Sheriff Court."
The second petition
[5] On 21 September 2006 the first and
second respondents appeared on petition at Wick
Sheriff Court ("the second petition"). The reference number of that petition, which
was dated 21 September 2006,
was WI06000794. On 21 September 2006 the first and second respondents
were committed for further examination and remanded in custody. They appeared again in Wick
Sheriff Court on 29 September 2006, when they were fully
committed. Bail was refused. The first and second respondents have
remained in custody ever since. On the second
petition the 110th day was originally 16 January 2007 and the 140th day 15 February 2007. On 5
January 2007, of consent of the Crown and the first and second respondents,
I extended the 140 day time limit in respect of those two respondents to 6 February 2007. The 11 month and
12 month time limits in respect of the second petition are 21 August 2007 and 21 September 2007 respectively.
[6] The
charges set out in the second petition are as follows:
"(001) on or between 01 January 2001 and 31 August 2006 at
various locations within Caithness HUGH DAVID McPHEE was concerned in the
supplying of a controlled drug, namely Cannabis Resin, a Class C drug
specified in Part III of Schedule 2 to the Misuse of Drugs Act 1971 to
another or others in contravention of Section 4(1) of the aftermentioned
Act;
CONTRARY to the Misuse of Drugs
Act 1971, Section 4(3)(b).
HUGH DAVID McPHEE did commit
this offence while on bail, having been granted bail on 30 May 2006 at Wick
Sheriff Court
(002) on or between 01 January 2001 and 31 August 2006 at
various locations within Caithness, Sutherland and Ross-shire and elsewhere in
Scotland DAVID WILLIAM JOHN McPHEE was concerned in the supplying of a
controlled drug, namely a compound or compounds of the type specified in
Paragraph 1(c) of part 1 of Schedule 2 to the aftermentioned Act,
said compound or compounds being commonly known as Ecstasy a Class A drug
in terms of said Act, to another or others in contravention of
Section 4(1) of the aftermentioned Act; CONTRARY to the Misuse of Drugs
Act 1971, Section 4(3)(b).
DAVID WILLIAM JOHN McPHEE did
commit this offence while on bail, having been granted bail on 17 January 2006 at Dingwall
Sheriff Court and on 2 June 2006 at The High Court.
(003) on or between 01 January 2001 and 31 August 2006 at various
locations within Caithness DAVID WILLIAM JOHN McPHEE was concerned in the
supplying of a controlled drug, namely Cannabis Resin, a Class C drug specified
in Part III of Schedule 2 to the Misuse of Drugs Act 1971 to another
or others in contravention of Section 4(1) of the aftermentioned Act; CONTRARY
to the Misuse of Drugs Act 1971, Section 4(3)(b).
DAVID WILLIAM JOHN McPHEE did
commit this offence while on bail, having been granted bail, having been
granted bail on 17 January 2006
at Dingwall Sheriff Court
and on 2 June 2006 at
The High Court.
(004) on or between 01 January 2001 and 31 August 2006 at
various locations within Caithness, Sutherland and Ross-shire DAVID WILLIAM
JOHN McPHEE was concerned in the supplying of a controlled drug, namely
Amphetamine, a Class B drug specified in Part II of Schedule 2 to the
Misuse of Drugs Act 1971 to another or others in contravention of Section 4(1)
of the aftermentioned Act; CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b).
DAVID WILLIAM JOHN McPHEE did
commit this offence while on bail, having been granted bail on 17 January 2006 at Dingwall
Sheriff Court and on 2 June 2006 at The High Court, Edinburgh."
The indictment
[7] The
indictment served on the respondents is in the following terms:
"(1) between 1 January 2001 and 31 August 2006, both dates
inclusive, at Mill Street, Dingwall, 29 Gunns Terrace, Wick and elsewhere in
Caithness, Sutherland and Ross-shire, you DAVID WILLIAM JOHN McPHEE, HUGH DAVID
McPHEE and REHAN ALI AMIN were concerned in the supplying of a controlled drug,
namely a compound or compounds of the type specified in Paragraph 1(c) of
Part I of Schedule 2 to the aftermentioned Act commonly known as
Ecstasy and being a Class A drug in terms of said Act, to another or
others in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b);
you DAVID WILLIAM JOHN McPHEE
did commit this offence while on bail, having been granted bail on 17 January 2006 at Dingwall
Sheriff Court and on 2 June 2006 at the High Court of Justiciary,
Edinburgh;
you HUGH DAVID
McPHEE did commit this offence while on bail, having
been granted bail on 30 May 2006 at Wick
Sheriff Court;
(2) between 1 January 2001 and 31 August 2006, both dates
inclusive, at various locations within Caithness you DAVID WILLIAM JOHN McPHEE,
HUGH DAVID McPHEE and REHAN ALI AMIN were concerned in the supplying of a
controlled drug, namely Cannabis Resin, a Class C drug specified in
Part III of Schedule 2 to the aftermentioned Act, to another or
others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b);
you DAVID WILLIAM JOHN McPHEE
did commit this offence while on bail, having been granted bail on 17 January 2006 at Dingwall
Sheriff Court and on 2 June 2006 at the High Court of Justiciary,
Edinburgh;
you HUGH DAVID McPHEE did
commit this offence while on bail, having been granted bail on 30 May 2006 at Wick
Sheriff Court;
and
(3) between 1 January 2001 and 31 August 2006 at 20
Kinnaird Street, 19 Seaforth Avenue, 29 Gunns Terrace, all Wick; Mill Street, Dingwall and elsewhere in
Caithness, Sutherland and Ross-shire you DAVID WILLIAM JOHN McPHEE, HUGH DAVID
McPHEE and REHAN ALI AMIN were concerned in the supplying of a controlled drug,
namely Amphetamine, a Class B drug specified in Part II of
Schedule 2 to the aftermentioned Act, to another or others, in
contravention of Section 4(1) of said Act:
CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);
you DAVID WILLIAM JOHN McPHEE
did commit this offence while on bail, having been granted bail on 17 January 2006 at Dingwall
Sheriff Court and on 2 June 2006 at the High Court of Justiciary, Edinburgh;
you HUGH DAVID McPHEE did
commit this offence while on bail, having been granted bail on 30 May 2006 at Wick
Sheriff Court."
[8] It is to
be noted that in the indictment charges 1, 2 and 3, which are all alleged
contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971, encompass
the dates on which it had been alleged that the charges on the first petition
were committed, namely 6 and 7 January
2006. None of the three
charges in the indictment fully reflects either the nature or the detail of
what was alleged in the charges on the first petition. However, I was informed by the Advocate
Depute that during any trial on the indictment the Crown would seek to lead the
evidence upon which the charges in the first petition had been based.
Application under
section 65(3) of the1995 Act
[9] On 15 December 2006, the Crown lodged
an application under section 65(3) of the 1995 Act seeking the retrospective
extension of the 11 months and 12 months periods in respect of each
of the first and third respondents, in order that the indictment can proceed to
trial against all three of the respondents together. The need for the Crown's application arose
because the 11 months period in respect of the first and third respondents
expired on 9 December 2006 and the 12 months period in respect of those respondents
were due to end on 9 January 2007. The
application seeks the extension of those periods to 6 February 2007 and 6 March 2007 respectively.
[10] The
application came before the court for a hearing on 19 December 2006 when, on the motion of the
solicitor advocate acting for the third respondent, the hearing was adjourned
until 3 January 2007. That adjournment was sought to enable the third respondent to
be present during the hearing of the application and to allow his solicitors to
obtain instructions from the third respondent.
Hearings took place before me on 3 January, 5 January and 18 January 2007, on which date I
indicated that I would advise my decision on the application on 31 January 2007.
[11] During the
hearing on 18 January the Advocate Depute tendered a document setting out
a chronology of the factual background to the application. I have modified the written chronology slightly
by expanding certain acronyms and by adding the date on which the High Court
indictment was served. The chronology is
in the following terms:
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DATE
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DETAILS
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07/01/06
(Saturday)
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TA06000068
Accused Amin and David McPhee detained under s 23 of the Misuse
of Drugs Act 1971.
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09/01/06
(Monday)
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TA06000068
Amin and David
McPhee reported to PF Dingwall - both appear on Petition at Tain Sheriff Court - both NPND. CFE and RIC.
Note: TA06000068 is a Dingwall case. Custodies call either in Tain or Dingwall
depending on the availability of the Sheriff hence the Dingwall case calling
in Tain.
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17/01/06
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TA06000068
Amin and McPhee
reappear. Both NPND. No further Crown motion. Both granted bail on standard and special
conditions.
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23/01/06
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TA06000068
Form 32 submitted by
PF to Crown Office - potentially High Court on initial estimate of the value
of the drugs.
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04/08/06
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TA06000068
Evidence of Opinion Report received from Northern Constabulary -
drugs worth significantly less than first anticipated.
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15/08/06
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TA06000068
PF Dingwall
advices High Court Unit via email that value of drugs now significantly less
than first thought and that case likely to be Sheriff and Jury. High Court Unit agree with the PF Dingwall that
the precognition should be submitted in Sheriff and Jury format.
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17/08/06
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TA06000068
Precognition sent
to Crown Office.
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18/08/06
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Rehan Amin gives statement to police in Wick.
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23/08/06
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TA06000068
Crown Counsel
instructs Sheriff and Jury proceedings.
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24/08/06
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TA06000068
Crown Counsel
instructions received by PF Dingwall.
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25/08/06
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Rehan Amin gives statement to police.
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06/09/06
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TA06000068
Memo from
Reporting Officer received by PF Dingwall.
Memo included additional witnesses and evidence.
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20/09/06
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WI06000794
Accused David
McPhee and Hugh McPhee detained by Northern Constabulary, Wick.
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21/09/06
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WI06000794
David McPhee and
Hugh McPhee appear on Petition at Wick Sheriff Court.
Both NPND, CFE and RIC.
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21/09/06
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PF Dingwall and PF Tain (who has overall responsibility
for PF Office, Wick) discuss both cases on telephone. It is agreed that the papers for Dingwall
case TA0600048 will be sent to PF Tain to consider both cases together.
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22/09/06
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.PF Dingwall sends precognition, copy productions and
additional evidence to PF Tain.
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29/09/06
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David McPhee and Hugh McPhee reappear on petition at Wick
Sheriff Court. Both FC and refused bail.
PF Tain requests assistance from Highlands & Islands
Area Team to precognosce the case.
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03/10/06
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Area Team meeting to discuss and co-ordinate requests for
assistance from throughout Highland
and Islands PF Offices.
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11/10/06
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Area Team confirm to PF Tain that Robbie Smart, PO,
Area Team will deal with case.
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19/10/06
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Robbie Smart receives papers from PF Tain for both
TA06000068 and WI06000794. Instruction
note from PF Tain indicates that both cases should be conjoined.
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30/10/06
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PF Tain instructs Robbie Smart to report the conjoined
cases as two separates precognitions i.e. WI06000794 as one precognition to
be read in conjunction with the previously reported Dingwall case
TA06000068. This is confirmed in
writing by PF Tain on 2nd
November 2006, received by Robbie Smart on 4th November 2006.
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31/10/06
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WI06000794
Witnesses precognosced
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01/11/06
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WI06000794
Witnesses precognosced
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27/11/06
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WI06000794 and TA06000068
Wick case sent by Robbie Smart to PF Tain for
countersigning along with precognition, etc for TA06000068.
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28/11/06
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WI06000794 and TA06000068
Both precognitions sent to Crown Office to be considered
in conjunction with each other.
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29/11/06
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WI06000794
Marked by Crown Counsel to proceed High Court. PH assigned for 09/01/07 and passed to Emma Toner, HCU to
indict.
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04/12/06
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TA06000068
Papers for the Dingwall case returned to PF Dingwall
marked "proceed Sheriff and Jury".
This precognition became separated from the High Court precognition
WI06000794 at Crown Office and was read and marked by someone who was unaware
of the High Court case.
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Week beginning 04/12/06
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- Precognition
for TA06000068 returned to Crown Office for consideration along with
WI06000794.
- Early
in week Emma Toner discussed both cases with the Principal Advocate Depute
and Crown Counsel's instructions to combine both cases were obtained. By this stage, the 11 month time bar
in respect of the Dingwall case would have been 9 December 2006: therefore it was not
possible to indict the conjoined cases on a High Court indictment, with a
Preliminary Hearing in the High Court, and adhere to the 11 month time
bar in the Dingwall case (TA06000068).
The Principal Advocate Depute agreed that the conjoined cases
should be indicted, with the assigned date of 9 January 2007 for the PH, and that a S65
application should be made retrospectively.
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8/12/06
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High Court indictment served,
together with notice of preliminary hearing on 9 January 2007
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[12] During the course of his submissions, the Advocate Depute amplified
on the factual background as summarised in that chronology. He explained that when the procurator fiscal
at Wick decided to place the first and second respondents on the second
petition, the decision had been taken to view the third respondent as a
potential Crown witness, rather than an accused person, in respect of the
charges being included on the second petition.
That approach to the position of the third respondent changed after the
precognition relating to the second petition was reported to Crown Office.
[13] The Advocate Depute explained that when the two precognitions
had arrived in Crown Office on 29
November 2006 they had become separated from each other. The
precognition prepared by the procurator
fiscal at Dingwall, relating to the first petition, had been marked by a Crown
Office official to proceed by way of sheriff and jury trial. On the other hand, Crown Counsel has
instructed High Court proceedings in relation to the precognition arising out
of the second petition. Subsequently, once it was discovered that the two precognitions
had been marked separately, both precognitions had been reconsidered by Crown
Counsel. Crown Counsel had then given fresh instructions that all three respondents
should be indicted on one High Court indictment on all charges arising out of the
separate precognitions prepared in respect of the two petitions.
[14] The Advocate Depute also explained that Crown Counsel's decision
to indict the three respondents on the one High Court indictment had been taken
because it had been deemed to be in the interests of justice that what were
considered to be similar charges, connected in time, circumstances and
character, should be tried together. The
view had been taken by Crown Counsel that there was a strong public interest in
trying all three respondents and all the charges together.
[15] During the course of his submissions, Mr Freeman, solicitor
advocate for the third respondent, amplified on how the third respondent had
come to give statements to the police in Wick on 18 September and 25 September 2006. He explained that on 18 August 2006, having previously spoken with
his solicitor, the third respondent on his own initiative went to Wick Police
Office. Once there, he indicated to
police officers that he had heard from some of his friends that the police were
investigating his involvement with drugs. He explained that he wanted to know why this
was happening. Having done so, the third
respondent agreed to remain at the police office on a voluntary basis. He was then interviewed under caution by
police officers, who had been investigating matters that subsequently gave rise
to the charges on the second petition. During
that interview, the second respondent was not questioned about the charges on
the first petition. The transcript of
the interview carried out that day was made available to me. During the course of that interview the third respondent
admitted having some involvement in the supply of drugs.
[16] Mr Freeman explained that on 25 August 2006 the third respondent returned to Wick
Police Office, again on his own initiative. On this occasion he indicated that he wished
to give a voluntary statement to police officers about the charges on the first
petition. He signed a voluntary attendance
form. Subsequently during a taped meeting
with police officers, at the outset of which he was cautioned, the third respondent
provided a statement admitting involvement in the events giving rise to the charges
on the first petition. That statement
was written down by a police officer and signed by the third respondent before
he left the police office. Copies of the
transcript of the meeting and the voluntary statement were also made available
to me.
Submissions
on behalf of the Crown
[17] On behalf of the Crown, the Advocate Depute reminded me that
applications to extend the 11 months and 12 months periods can be
granted retrospectively. It was
submitted that the present application was necessary and was competent,
notwithstanding the fact that the terms of the charges on the indictment do not
mirror, or indeed bear any real similarity to, the terms of any of the charges
on the first petition.
[18] Reference
was made to Rennie v HMA 1998 S.C.C.R. 191, which concerned
an application under section 65(3) of the 1995 Act to extend the 12 month
period, in a case in which the petition
had alleged a charge of rape, whilst the indictment had libelled a charge of
shameless indecency. The Advocate Depute
submitted that there was no suggestion in the Opinion in Rennie that the application, which had been before the court in
that case, had been incompetent on account of the difference between the terms
of the charge on the petition and those of the charge in the indictment. On the contrary, the court had proceeded upon
the basis that it was necessary for the Crown to seek an extension of the 12
months period and that its application for an extension was competent.
[19] In response to a question I raised, under reference to the
precise terms of subsections 65(1) and (1A), the Advocate Depute submitted that
if the Crown's application in the present case was refused it would still be
competent for the indictment to proceed to trial against all three respondents.
However, he maintained that in that
event the Crown would be unable to lead evidence as to what was alleged to have
happened on 6 and 7 January 2006,
at the various places referred to in the four charges on the first petition. The Advocate Depute argued that proceeding
with the trial on that basis would be competent, because the continuing proceedings,
insofar as directed against the first and second respondents, would be governed
by time-limits arising out of the second petition and, insofar directed against
the third respondent, would not be subject to any 11 and 12 months timelimits,
because the third respondent had not appeared on the second petition.
[20] As far as the merits of the application were concerned, the
Advocate Depute submitted that the approach I should follow was that explained
in the cases of Swift v HMA 1984 S.C.C.R. 216, per Lord Justice General at pps.226 and
227, Freeman v HMA 2005 S.C.C.R. 571, per Lord
Justice General at p.578, para.[13] and Early
v HMA 2006 S.C.C.R, per Lord Justice Clerk at p.591, paras. [27] -
[31].
[21] The Advocate Depute explained that when the two precognitions had
reached the Crown Office on 29
November 2006, there would still have been time for the separate sets
of charges on the two petitions to have been indicted on separate indictments
in the Sheriff Court, without
encountering any time bar problems. However, Crown Counsel had taken the view
that it was in the interests of justice that the serious charges arising out of
the two petitions should be amalgamated into charges which would be tried
together. Crown Counsel had reached the
conclusion that the sets of charges included in the two petitions were of an
analogous nature and that there were clear connections in time, circumstances
and character between the evidence upon which the charges in the first petition
had been based and the evidence upon which the charges in the second petition
were based.
[22] The Advocate Depute explained that the Crown was ready for
trial, subject to the allowance of certain section 67 notices. Only short extensions of the eleven month and
twelve month periods were sought.
Reference was also made to Fleming
v HMA 2006 SCCR 594, per Lord Justice Clerk at
para.[17].
Submissions
for respondent
[23] The Crown's application was opposed on behalf of the first and
third respondents, although it was accepted on behalf of both those respondents
that it was competent for the Court to extend the 11 and 12 months periods
retrospectively. The second respondent,
who was present and represented at the first of the hearings before me, adopted
a neutral position in respect of the application and no submissions were
advanced on his behalf.
[24] On behalf of the first respondent it was submitted that the
application was incompetent. That was
because the charges which the first respondent faces on the indictment are not
the same as, nor indeed similar to, the charges contained in the first
petition. Counsel for the first respondent
submitted that if the application was refused, the proceedings could continue
against all three of the respondents, the preliminary hearing could be held and,
if necessary, a trial could take place involving all three of the respondents on
all of the charges on the indictment. He also submitted that at any trial the
Crown would be unable to lead evidence relating to events that had given rise to
the charges on the first petition.
[25] As far as the merits of the application are concerned, counsel for
the first respondent argued that the charges on the first petition could easily
have been tried separately. Those
charges related to "a one day drugs run", which could have been tried in the
sheriff court. Furthermore there had been periods of inaction on the part of
the Crown, once the procurators fiscal had appreciated that they had a potential
High Court case on their hands. The first
period of inaction had been in pulling together the information relating to the
charges on the first petition and that relating to the charges on the second
petition, prior to an indictment being framed and served on the respondents. The second period of inaction had been the
Crown's delay in lodging the application under section 65, once the need
for doing so had been identified on Crown Counsel taking the decision to indict
all three respondents in the High Court. Reference was made to Farrell v HMA 220 JC 50 and HMA v
Sands 2002 SLT 1323.
[26] On behalf of the third respondent, it was argued that the
Crown's application was competent. It
was submitted that unless the application under section 65 was granted the
whole indictment would fall as far as the first and third respondents were
concerned. That was the inevitable
consequence of the precise terms of subsections (1) and (1A) of section 65. The
Crown would then be able to re-indict the first and third respondents on a
fresh indictment, on charges arising out of the second petition, but not in
terms similar to charges 1 and 3 of the present indictment.
[27] As far as the merits of the application were concerned, it was
argued that the consequences of the correct construction of subsections 65(1)
and (1A) were not of relevance when the Court was addressing the first
stage of the Swift test. It was clear this was a case where two sets
of charges, based on the evidence relating to the two petitions, could have
been tried on two separate sheriff court indictments. Alternatively charges
arising out of the first petition could have been indicted sheriff and jury and
those arising out of the second petition in the High Court. Those had been choices open to the Crown, who
did not suggest that evidence relating to the charges on the first petition was
essential to providing a sufficiency of evidence on any of the charges included
in the indictment that had been served.
[28] It was submitted on behalf of the third respondent that a
further choice open to the Crown would have been to have indicted all three respondents
in the High Court in terms of an indictment served in sufficient time to comply
with 11 and 12 month time periods arising out of the first petition.
[29] It was argued that having regard to the choices that had been
open to the Crown, this was not a case in which the Court was being asked by
the Crown to excuse fault or inadvertence on their part. What has been happened here had been a
conscious decision by the Crown to indict all three respondents on the one High
Court indictment in the knowledge that extensions of the 11 and 12 month
periods would be required. The decision
to indict all the charges together had been a calculated decision on the part
of the Crown. That meant that what had
happened in the present case could not fall within and satisfy the first stage
of the Swift test. Reference was made to Mejka v HMA 1993 SCCR 978
at p.985.
[30] If the second stage of the Swift test was reached, I was
invited to exercise my discretion in favour of the third respondent and refuse
the application.
Decision
[31] Having considered the submissions made to me, I have reached
the decision that the application is competent. In my opinion, subsections 65(1) of the 1995
Act falls to be construed to the effect that an accused charged with an offence
on an indictment first appeared on petition in respect of that offence when he
appeared on petition on a charge, which was either framed in the same or
similar terms to the offence on the indictment or based on evidence which forms
part or the whole of the evidential basis on which the offence on the
indictment proceeds. That would mean
that the first and third respondents first appeared on petition in respect of
the offences libelled in charges 1 and 3 on the present indictment when they
appeared on the first petition on 9
January 2006. In light of that approach to the construction of
section 65(1), I consider that the provisions of subsection 65(1A) make it
necessary for the Crown to lodge the application it did if it intends to
proceed against the first and third respondents on charges 1 and 3 on the present
indictment.
[32] In approaching the merits of the application, I have sought to
follow the approach very clearly summarised and explained in Early v HMA 2006 S.C.C.R, per Lord Justice Clerk at p.591, paras. [27] -
[31].
[33] On that basis, the first question I address is whether the
Crown has demonstrated reasons that might be sufficient to justify the
extensions they seek. The factual basis
upon which the Crown's application proceeds is clear. The chronology of events which the Advocate
Depute laid before the court was not disputed on behalf of either of the first
or third respondents. Furthermore, the
further information Mr Freeman provided, about the circumstances in which
the third respondent provided statements to the police on 18 August and 25
August 2006, not only amplified upon that chronology of events, it reinforced
the conclusion that there was evidence and information available to the Crown
upon which the decision could reasonably have been reached that the charges
arising out of the first petition should be tried on the same indictment as
those arising out of the second petition.
[34] The possibility of amalgamating the charges libelled in the first
petition with other charges, and of thereby delaying, to some extent, the trial
of the first and third respondent on charges based on that first petition, only
arose because the first and second respondents appeared on the second petition.
In my opinion the difficulties the Crown
now face, in respect of the 11 months and 12 months periods, following upon
service of the present indictment on the respondents, have as their starting
point the fact that after the first and third respondents had been fully
committed on the charges set out in the first petition, and had been released
on bail, circumstances arose which resulted in the first respondent appearing
on the second petition.
[35] Having regard to the nature of the charges on the two
petitions, and the evidence that was likely to lie behind them, the decision
taken by the procurators fiscal at Tain and Dingwall to consider both sets of
charges together and the subsequent decision of Crown Counsel to instruct an
indictment in the High Court, which had the effect of amalgamating together the
charges arising out of the two petitions, were typical of the decisions that require
to be taken by the Crown, in the discharge of its duties as the public
prosecutor, when further charges come to light in respect of an accused who has
appeared on petition and is awaiting trial. Sometimes those decisions affect only one accused.
On other occasions, they can have potential
implications for other accused persons.
[36] In the present case, the procurator fiscals at Tain and
Dingwall, having taken the decision to consider the charges in the two
petitions together, ought to have realised that their decision might give rise
to some timebar difficulties arising out of the first petition. Whilst it would have been open to the Crown to
have indicted all the charges arising out of the two petitions on the one High
Court indictment, without seeking an extension of the 11 months period and
in all probability of the 12 months period arising from the first
petition, that could only have been achieved had the High Court indictment been
served by 9 October 2006, a mere 11 days after the first and second respondents
had been fully committed on the second petition. Hardly surprisingly, there is no suggestion
that the possibility of doing so was considered. Moreover possible timebar
problems were not flagged up by the procurator fiscals, when the precognitions
were reported to Crown Office. Nor were
they identified immediately the precognitions arrived in Crown Office.
[37] Nevertheless, it is important to remember that it was the
appearance of the first respondent on the second petition that started the
chain of events that has led to the lodging of this application. A further consideration is that there is no
statutory procedure enabling the Crown to apply for an extension of the 11
months period, until after a High Court indictment has been served.
[38] In the light of the whole factual circumstances laid before me,
I have reached the conclusion that the Crown has satisfied the first stage of
the Swift test.
[39] I turn to deal with the second stage of the Swift test, which
requires me to consider whether, in the exercise of the court's discretion, I should
grant the extensions sought of the 11 months and 12 months periods, which
commenced on the date when the first and third respondents appeared on the
first petition.
[40] As I have indicated, what triggered the chain of events that
has led to this application was the appearance of the first respondent on the
second petition. That appearance
followed on police enquires during the weeks preceding 21 September 2006, including the taking of statements
from the third respondent in Wick Police Office on 18 and 25 August 2006.
[41] I consider the decision of the procurators fiscal at Dingwall
and Tain to consider the two precognitions together perfectly understandable. Having said that, when they took that decision
they appear to have failed to appreciate that their decision might create
timebar problems, particularly if, as they envisaged might be the case, High
Court proceedings resulted.
[42] It would, in all probability, have been impossible for the
Crown to have prepared both precognitions, and to have indicted all three respondents
on all the charges in the High Court, within a timescale that would not have
required an extension of the 11 months and 12 months periods. As I have indicated that could only have been
achieved if the High Court indictment had been served by 9 October 2006. For that reason, when the precognitions were
reported to Crown Office, and when they reached Crown Office, the timebar
problems should have been identified a few days earlier than they were. The failures to do so were undoubtedly oversights,
contributed to by the fact that on their initial arrival at the Crown Office the
two precognitions had been dealt with separately.
[43] I can understand how Crown Counsel considered it to be in the
public interest that all three respondents should be tried together on all
charges arising from the first and second petitions. Such a decision is in line with the approach
the Court would normally take when dealing with motions to separate charges or
trials. Nor do I consider that there was any significant delay on the part of
Crown Office staff in lodging the section 65 application. To that extent, I find it understandable why
both the procurator fiscals and Crown Counsel took the decisions they did,
albeit that in the course of doing so they failed to identify the timebar
difficulties that were emerging. In my opinion, their failures to do so do not
in themselves require this application to be refused.
[44] In my opinion, there are other factors that require to be taken
into account. The charges the respondents
face are serious. That would have been
the position had the charges arising of the first petition been prosecuted separately
from those arising out of the second petition. Furthermore, in the event that the Crown's
application is refused, there may well be an argument that the Crown would be
prevented by the provisions of section 65(1A) of the 1995 Act from proceeding
against the first and third respondents on charges 1 and 3 on the indictment,
even if the Crown undertook not to lead any evidence related to the events that
had given rise to the charges on the first petition.
[45] During the course of the hearings before me, it was accepted
that sheriff and jury indictments dealing separately with the charges from the
two petitions could have been served timeously, following upon both
precognitions having been reported to Crown Office on 29 November 2006. Had that been done, the 11 months time limit
would have flown off, as being of no relevance to indictments in the sheriff
court, and the 12 months time limit of 9
January 2007 could have been met. Indeed, it would also have been possible for
the Crown to have indicted all three respondents on one sheriff court
indictment and to have served such an indictment timeously, without there
having been any breach of the twelve months timelimit. In such circumstances, I am not persuaded
that either of the first and third respondents will suffer any significant
prejudice by reason of the present indictment proceeding, when compared with
what would have been the position if they had faced one indictment libelling
the same charges in the sheriff court or two separate sheriff court indictments
including charges covering the charges in the two petitions.
[46] The extensions sought are short. No further extension will be required for the
11 months period. It is possible that a
further extension of the 12 months period may be required, but that will depend
on the parties' state of preparations for trial. In these circumstances, notwithstanding
the fact that none of the respondents bear any responsibility for the situation
that has arisen, I have reached the conclusion that I should exercise my
discretion and grant the application.
[47] I accordingly extend the 11 month period to 6 February 2007 and the
12 month period to 6 March 2007.
