APPEALS UNDER SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY (FIRST) DAVID JOHN WHITEHOUSE AND (SECOND) PAUL JOHN CLARK AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 46
HCA/2015/3401/XC and HCA/2015/3402/XC
Lord Justice Clerk
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEALS UNDER SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
(FIRST) DAVID JOHN WHITEHOUSE and (SECOND) PAUL JOHN CLARK
Appellants;
against
HER MAJESTY’S ADVOCATE
Respondent:
First Appellant: Currie QC, CM Mitchell; Livingstone Brown, Glasgow
Second Appellant: M McAra QC (sol adv); Beltrami & Co, Glasgow
Respondent: J Keegan QC (sol adv) AD, Jajdelski, Shand; the Crown Agent
3 December 2015
Introduction
[1] The appellants have appealed against orders made by the sheriff, under section 65(3)(a) of the Criminal Procedure (Scotland) Act 1995, extending the 11 and 12 month time limits for the commencement of a Preliminary Hearing and a trial.
Procedural background
[2] On 17 November 2014, the appellants (together with 3 co-accused, namely Craig Whyte, Gary Withey and David Grier) appeared on a first petition at Paisley Sheriff Court on charges arising out of the acquisition of Rangers Football Club in May 2011. On 26 August 2015, the Crown lodged an application for extensions of the 11 and 12 month periods. On 2 September 2015, the appellants (together with Mr Whyte, Charles Green and Sheik Imran Ahmad) appeared on a second petition in connection with charges arising out of the administration and sale of Rangers between February and June 2012. On 7 September 2015 the sheriff extended both periods by 3 months. It is against that decision that the appeal is taken.
[3] On 15 September 2015, within the unextended period, an indictment was served consisting of charges arising from both petitions. At a Preliminary Hearing on 16 October 2015, the High Court assigned the week commencing 7 December 2015 for the purposes of legal debate, and continued the PH to 11 January 2016. A second more comprehensive indictment, again encompassing charges from both petitions, was served on 2 December 2015. The practical effect of this is that, if the appeal were refused, it is likely that the first indictment will be deserted and proceedings will continue in terms of the second indictment. If it were allowed, the second indictment would be incompetent, in so far as it contains charges against particular accused reflected in the first petition. The Crown could nevertheless proceed by a new indictment against any accused in respect of charges only contained in the second petition. It seems that it may not be competent to conjoin the indictments (Weir v HM Advocate 2007 SCCR 59, Lord Osborne at para [21]), thus accused included in both indictments may require to undergo two trials. No doubt many witnesses would require to give evidence twice. So far as either of the appellants tholing their assize on a particular charge is concerned, the outcome of the appeal, standing service of the first indictment, may have a very limited practical effect.
The sheriff’s report
[4] The sheriff reports that the case is one of considerable complexity. It is likely that more than 300 witnesses will be called to speak to the events libelled in the first petition (now indictment). There are 1,345 productions running to some 71,000 pages. Seven electronic discs containing additional material have been disclosed. However, the sheriff did not consider that this complexity was, in itself, a factor which would entitle the Crown to any extension.
[5] The sheriff sets out the two factors which he took into account at the first stage of the two stage test in HM Advocate v Swift 1984 JC 83. The first was that the 2014 petition had been raised earlier than would otherwise have been desirable, because of a concern that Mr Whyte might have been seeking to flee the jurisdiction. An urgent warrant for his arrest was required. Secondly, 39 boxes of materials relevant to that petition had only been received by the Crown in July 2015, in response to a warrant which had been served in August 2013, as a result of oversight by the havers. The sheriff concluded that these two matters taken together demonstrated a sufficient reason to proceed to the discretionary second stage.
[6] The sheriff narrates the factors which he took into account at the second stage. These were the complexity of the case, the volume of material, the early raising of the first petition, and the late appearance of a substantial volume of additional material. He additionally considered it to be in the interests of all parties that a fully considered indictment be served. An extension of nine months had been sought, but the sheriff, observing that his decision had been “a very close one”, was prepared to grant an extension of only three months. Commenting upon the appellants’ Notes of Appeal, the sheriff observes that, had it been the case that no significant volume of additional material had been received in the summer of 2015, his decision at the first stage might have been different.
Submissions
First Appellant
[7] The performance by the Crown in relation to its disclosure obligations had been woeful. The police investigation had begun in 2012 and there had been a history of significant delay. The factual basis upon which the Crown had sought and been granted an extension had been incorrect. The Crown’s original application had relied upon the alleged late recovery of 29 boxes of material from Messrs Duff and Phelps, a firm of accountants in which the appellants worked. That material had been recovered in terms of a warrant sought only on 6 July 2015. The application had been framed on the basis that the charges in both petitions should be brought together in one indictment for convenience. However, at the initial hearing of the application, the advocate depute had submitted that there was a direct link and evidential conjunction between the two petitions. It had been in contemplation of the Crown from the outset to pursue matters as a single conspiracy.
[8] The Crown had been ordained to clarify the position in respect of the recovery of evidence and to amend its application regarding the connection between the two petitions. The hearing was adjourned for about a week. At the continued hearing, the defence produced evidence to show that all of the Duff and Phelps’ material had been recovered in terms of warrants dated August 2013. The Crown had conceded that the facts presented at the initial hearing had been incorrect, but had insisted that Clyde and Co, a firm of solicitors acting for Mr Withey’s solicitors, namely Collyer Bristow, had recently produced 39 (not 29) boxes, which ought to have been produced in terms of the 2013 warrant. Again, that submission was incorrect. This too had been conceded by the Crown. It was as a direct result of these misrepresentations that the sheriff had held that the first stage of the test in Swift had been satisfied.
[9] The true position was that the additional material had come from Duff and Phelps in terms of a warrant issued in July 2015. A small quantity of further material had been received from Clyde and Co in the Summer of 2015, but that had already been assessed by the police in 2013. The false factual account submitted by the Crown had deprived the defence of a proper opportunity to oppose the application. It had induced the sheriff to grant it in error. The decision of the sheriff to grant the Crown application was predicated upon a material error of fact. Had the true factual position been presented by the Crown, the application would have been refused. On that basis the original time limits should be reinstated.
Second Appellant
[10] The second appellant adopted the submissions of the first appellant.
Respondent
[11] The advocate depute conceded that, through human error, inaccurate information had been provided to the sheriff, both at the original and the continued hearing. That was regrettable and an apology had been proffered. Although the sheriff had arrived at the correct result, he had erred in his application of the test. The court should consider the matter anew.
[12] The respondent could have proceeded within the statutory periods in relation to the charges in the first petition. However, as it had progressed, the scope of the investigation had been broadened to include the charges in the second petition. This was criminal conduct in relation not to the acquisition of Rangers but to the administration, liquidation and disposal of Rangers in February 2012. The extension was required in order that an indictment encompassing the whole course of criminal conduct (ie both petitions) could be proceeded with. In addition to the factors cited by the sheriff, he should also have had regard to the complexity of the case, the volume of information to be considered, the international nature of the investigation and delays caused by assertions of legal professional privilege. In the whole circumstances, the first stage of the Swift test was amply met.
[13] In his application of the second stage of the Swift test, the sheriff had regard to factors which were only relevant to the first stage. In the second stage, the sheriff ought properly to have had regard to: the nature of the charges, involving allegations of significant financial impropriety; and the clear public interest and utilitarian value of a full indictment in respect of all of the alleged criminal conduct. This would expedite prosecution of the charges raised in the second petition. Refusal of the application would have delayed resolution of the proceedings for the appellants. The court should affirm the decision of the sheriff and refuse the appeals.
Decision
[14] In determining an application under section 65(8), the court must, first, establish whether sufficient reason has been shown by the Crown to justify the grant of an extension having regard to all of the circumstances. An important factor is whether the circumstances founded upon could have been avoided by the Crown. A failure to obtain vital evidence timeously is normally regarded as “positive culpability” as distinct from “administrative mishap”. Secondly, the court must take account of all the circumstances in considering whether to exercise its discretion to grant an extension (HM Advocate v Swift 1984 JC 83, LJG (Emslie) at 88; Early v HM Advocate 2006 SCCR 583, LJC (Gill) at para [5] et seq). It is only at this stage that the public interest, the presence or absence of prejudice to the accused and the length of the extension may properly be taken into account.
[15] All parties were agreed that the sheriff had erred. For the appellants, this was because he had been induced by material mis-statements of fact by the respondent. For the respondent, it was conceded that the facts presented to the sheriff had been in error and it was submitted that the sheriff had misdirected himself in the application of the two-stage test.
[16] The sheriff has erred in a number of ways in relation to the first stage of the test. First, there is no immediate reason why the anticipated fugitation of Mr Whyte merited putting the appellants on petition earlier than was desirable. Secondly, because of the Crown submissions, the sheriff proceeded upon a misapprehension of the facts. The extra material did not relate to the first petition. It did not emanate from any error on the part of the havers who were subject to the 2013 search warrant. The havers were not the appellants’ firm. Thirdly, the sheriff’s conclusion that complexity per se was not a factor which could justify an extension is wrong (see eg Voudouri v HM Advocate 2003 SCCR 448, Lord Maclean at para [18]). This latter error was in the appellants’ favour.
[17] The sheriff having misdirected himself, matters open up for consideration of new by this court (see eg Currie v HM Advocate, High Court of Justiciary Appeal Court, 11 April 2013, unreported, Lord Eassie at para [4]). The court cannot proceed on the basis that, had the sheriff been provided with the correct information, he would have (as he does hint at) refused the application and thereafter affirm a decision which was never made. The errors vitiate the decision and the issue requires to be re-examined by the appellate court (see the powers of the court in section 65(8)).
[18] The complexity of the case, the volume of material to be considered, and the developing nature of the investigation involving international elements are relevant and material factors to be considered at the first stage (Voudouri v HM Advocate (supra)). Whatever may be the precise position regarding the late emergence of new material, those factors in themselves provide sufficient reason for satisfaction of the first stage of the test.
[19] The question at the second stage is one of discretion. The case concerns the high profile dismantling of Rangers and very serious charges of financial impropriety in that connection. There is considerable public interest in allowing the prosecution of the charges in both petitions against all accused to proceed together on one indictment. Taking into account the gravity of the charges, the relatively short period of the extension, and the absence of any practical prejudice to the conduct of the defence by virtue of a three-month delay, an extension was, and is, appropriate. Such prejudice as there may be to the appellants’ rights under section 65 are more than counter-balanced by the considerable public interest in allowing the prosecution to proceed in the manner proposed.
[20] Accordingly these appeals have been refused.