Full High Court bench finds nobile officium petition by rape complainer competent

Lord Carloway
Lord Carloway

A Full Bench of the Appeal Court of the High Court of Justiciary has determined that a nobile officium petition made by a complainer in a rape case after she was not notified of an application by the accused to lead evidence of their sexual history is competent under the doctrine. 

The petitioner, RR, claimed that she had only become aware of the application made under section 275 of the Criminal Procedure (Scotland) Act 1995 by the second respondent, LV, four months after it had been partially granted, and that the decision to grant it was unjust. An intervention in the case was made by Rape Crisis Scotland. 

The petition was heard by the Lord Justice General, Lord Carloway, and the Lord Justice Clerk, Lady Dorrian, along with Lord Menzies, Lord Malcolm, and Lord Glennie. The petitioner was represented by Bain QC, the Crown by the Lord Advocate, James Wolffe QC, and the second respondent by CM Mitchell QC

The second respondent was accused of raping the petitioner at a hotel in Pitlochry in August 2018. He was indicted to a preliminary hearing on 17 July 2019. The hearing was later postponed until October 2019, when the second respondent made a section 275 application seeking to lead certain evidence at trial. 

The evidence that the second respondent sought to lead was, among other things, that he had met the complainer at Wimbledon in July 2018 and later entered into a relationship online, that the complainer had told him that she loved hard sex and was adventurous, and that they had previously engaged in consensual sexual activity during their holiday in Scotland. 

The preliminary hearing judge allowed the admittance of evidence that the complainer said she loved hard sex and to be spanked, as well as evidence that they had previously engaged in consensual sexual activity at the hotel. The petitioner was not advised that this application had been made and was only told of it around four months after its partial granting when the Crown sought to precognosce her. 

It was submitted for the petitioner that a petition to the nobile officium was competent in the circumstances. The petitioner’s circumstances were extraordinary or unforeseen and no other remedy or procedure was provided, as there was no general right for victims to be direct participants in criminal proceedings.  

It was further submitted that the petitioner’s rights under Article 8 of the ECHR and Article 10 of the Victims’ Rights Directive, which encompassed her right not to be questioned unnecessarily about her private life, were engaged. The interveners, who adopted the petitioner’s arguments, added that the petitioner ought to have been informed by the Crown that the application had been made to allow for effective participation in trial proceedings. 

In response, it was submitted for the Crown that the circumstances of the case did not amount to the extraordinary or unforeseen injustice required to engage the nobile officium. Complainers did not have a right to participate directly in criminal proceedings, and any modification of that tenet of procedure would be a matter for the legislature. 

Submissions for the second respondent were broadly similar to those of the Crown but added that complainers were obliged to answer any questions which the court considered relevant, and could not raise an Article 8 objection to this. 

Duty of the Crown 

The opinion of the court was delivered by Lord Carloway, who generally noted: “The contention is that the petitioner had a right to be heard at the Preliminary Hearing in terms of the Victims and Witnesses (Scotland) Act 2014 and under the underlying Victims Directive. She was not afforded this right. She has no right of appeal under the Criminal Procedure (Scotland) Act 1995 nor at common law.” 

However, he added: “The circumstances are potentially, that is if established, extraordinary and unforeseen. The petitioner has no other remedy. At the stage of determining competency, there is no immediate concern that the right to be heard conflicts with the statutory regime in the 1995 Act. Whether it will do so or not must depend upon the nature and extent of the right and how it might be secured.” 

Noting the objective of the Victims’ Directive and its implementing legislation, he said: “The principles are that a complainer should be able: (i) to obtain information about what is happening with the case in which she is involved; and (ii) ‘in so far as it would be appropriate to do so’, to participate effectively in the proceedings.” 

He continued: “The current system does not provide for victims to become direct participants. Had it been the intention of Parliament to alter this fundamental aspect of criminal procedure, it had the opportunity to do so when amending sections 274 and 275 of the 1995 Act. Not only did it not do so, it laid down the procedure for intimating section 275 applications. This procedure does not include notification to the complainer.” 

Lord Carloway then turned to the petitioner’s Article 8 rights, saying: “It is the duty of the Crown to ascertain a complainer’s position in relation to a section 275 application and to present that position to the court, irrespective of the Crown’s attitude to it and/or the application. This will almost always mean that the complainer must: be told of the content of the application; invited to comment on the accuracy of any allegations within it; and be asked to state any objections which she might have to the granting of the application.” 

He concluded: “It is only by doing this that the principle that the complainer should be able to obtain information about the case and to participate effectively in the proceedings, along with her Article 8 right of respect for her privacy, can be upheld.” 

For these reasons, the petition was ruled to be competent.

© Scottish Legal News Ltd 2021

Other judgments by Lord Carloway