The Crown has successfully appealed against a judge’s decision to refuse an attempt by prosecutors to include evidence of alleged sexual offences which were previously held to be “time-barred” in a docket in an indictment libelling other sex crimes.
In a landmark ruling, the Appeal Court of the High Court of Justiciary held that the evidence could be used to provide “mutual corroboration” of the other charges and therefore was “admissible”.
The question in the appeal was whether allegations concerning certain sexual offences said to have been committed by the respondent “AD” during 1973 to 1974 against his step-daughter PC, may competently be included in a docket in an indictment libelling other alleged sexual offences during 1973 to 1996 against complainers AVD, JAD, AD, and LH, when a judge had previously ruled that the expired 12-month time-bar relating to the alleged offences involving PC should not be retrospectively extended in terms of section 65 of the Criminal Procedure (Scotland) Act 1995.
Lady Paton, Lord Menzies and Lady Clark of Calton heard that there were a total of nine charges on the indictment and Lord Burns had refused to grant a retrospective extension in relation to charges 1, 2 and 3, which concerned the respondent’s alleged lewd and libidinous behaviour and rape of PC.
Thereafter the Crown intimated its intention to call PC to give evidence relating to charges 1, 2 and 3 for “evidential purposes only”, relying on the doctrine of mutual corroboration established in Moorov v HM Advocate 1930 JC 68 to show that the behaviour libelled formed part of “a single course of criminal conduct systematically being pursued” by the respondent.
But the defence challenged the admissibility of that evidence and Lady Scott issued a Note ruling that the indictment could not proceed in a form which contained the time-barred charges 1, 2 and 3, as to do so would be “incompetent”.
However, the possible use of the docket procedure in terms of section 288 of the 1995 Act was raised and the Crown subsequently lodged a motion to allow the indictment to be amended by deleting charges 1, 2 and 3 and amending the docket to the indictment by inserting the deleted charges in paragraphs 2, 3 and 4 of the docket.
But Lord Glennie refused the motion, prompting prosecutors to appeal.
On behalf of the Crown, advocate depute Euan Cameron – who acknowledged that the point raised in this case, combining the time-bar in section 65 and the docket procedure in section 288BA, had not been the subject of a previous decision by a court – invited the appeal judges to reverse Lord Glennie’s decision and allow the docket to be amended as sought, and remit the case for trial on the amended indictment.
It was accepted that the respondent could not be charged on indictment and “proceeded against” over the alleged offences contained in former charges 1, 2 and 3, but it was argued that the Crown was entitled to lead and to rely upon the evidence which was proposed to be in the docket unless that evidence had been unfairly obtained.
Unfairness or oppression or conduct in breach of Article 6 of the European Convention on Human Rights (ECHR) would disentitle the Crown from relying upon such evidence, but if the ground of objection was another reason such as section 65 and time-bar, the Crown was “entitled” to lead that evidence and it would not be “oppressive” to do so.
It was submitted that the respondent had the full benefit of the “procedural safeguard” contained in section 65 in that he could not be prosecuted or convicted of the alleged offences in charges 1, 2 and 3, but the evidence was admissible because “fair notice” had been given to the accused and the docket evidence was “relevant” to the proof of the other charges libelled in the indictment as it could be used for mutual corroboration.
‘Not in the interests of justice’
However, on behalf of the respondent solicitor-advocate Chris Fyffe argued that it was “not in the interests of justice” to adopt the course suggested by the Crown, as the docket was “part of the indictment” and the Crown had simply sought to “relocate” the charges from one part of the indictment to another.
It was submitted that the docket would be read out to the jury and evidence would be led on the basis of the docket.
The jury would be invited to believe PC and to accept her evidence as credible and reliable and to use PC’s evidence as corroboration of other witnesses’ evidence.
Even although there would be no verdict of “guilty” or “not guilty” in relation to PC’s complaint, such an approach was “in effect a trial or proceedings on indictment against the respondent on charges of which he had been discharged”.
The court observed that there was “no precedent” for the particular sequence of events which has occurred in the present case as there had been no decision concerning the competency of inclusion in the docket of alleged criminal conduct specifically ruled “out of time” by a judge refusing to grant a retrospective extension in terms of section 65 of the 1995 Act.
Amended docket ‘admissible’ at trial
The appeal judges agreed with Lady Scott that it would be “incompetent” to permit an indictment containing charges 1, 2 and 3 to go to trial, which had been considered “time-barred”, but held that the conduct complained of could be included in a docket if it formed part of a sequence of events capable of providing corroboration in terms of the Moorov doctrine.
Delivering the opinion of the court Lady Paton said: “On behalf of the respondent it was argued that the wording of section 65 does not permit such an approach. We disagree. We do not accept that leading the evidence of PC on the basis of conduct described in a docket amounts to trying the respondent on indictment for the alleged offences referred to in the docket, or proceeding against him as respects the alleged offences.
“The respondent is not being ‘tried on indictment’ or ‘proceeded against on indictment’ for those matters: he is being tried on indictment and proceeded against on indictment for the matters involving AVD, JAD, AD, and LH. What the Crown seeks to achieve is convictions against the respondent in respect of his alleged criminal conduct against the complainers AVD, JAD, AD, and LH.
“The Crown seeks to have the respondent punished by an appropriate sentence in respect of those matters. The Crown does not seek to have the respondent convicted or sentenced in respect of any criminal conduct referred to in the docket concerning PC. On one view, what is contained in the docket is background material which may, or may not, assist in establishing facts relevant to the proof of one or more of the formal charges in the indictment.
“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, section 288BA(4) expressly permits the Crown to include such incompetent material in the docket. Accordingly it is our view that, on a proper construction of sections 65 and 288BA, the docket may be amended as sought by the Crown.”
The judges also repelled the plea of oppression and ruled that the evidence of PC continued in the amended docket was admissible at the trial.
Lady Paton added: “Ultimately we have not been persuaded that a fair trial cannot take place in respect of the matters alleged in respect of AVD, JAD, AD and LH by reason of the inclusion of paragraphs 2, 3 and 4 of the docket in the indictment as it is to be amended. Nor are we persuaded that there is some other compelling reason why the trial should not proceed.
“We consider, contrary to the submissions of the solicitor-advocate for the respondent, that the inclusion of the matters referred to in paragraphs 2, 3 and 4 of the docket as it is to be amended do not involve a trial of the respondent in respect of those matters.
“The inclusion of the act or omission in the docket makes it clear that this is not an offence charged against the respondent. He is not being put to trial in respect of said act or omission.
“The question of a fair trial in respect of the act or omission specified in the docket as it is to be amended does not arise. There is to be no trial of the respondent in respect of charges 1, 2 and 3 of the indictment.”