Appeal allowed against judge’s objection to evidence of rape trial accused’s ‘stealthing’ behaviour with ex-partner

About this case:

• Citation:
  [2022] HCJAC 42
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Respondent Brian Loughlin was accused of the assault and/or rape of multiple ex-partners. The appellant sought to corroborate three charges against a single complainer, MM, via a docket intended to provide a basis for leading evidence from another of the respondent’s ex-partners, NA, with whom he had exhibited similar behaviour.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Woolman and Lord Pentland. Edwards KC appeared for the Crown and Graham KC for the respondent.

Fair notice

The docket prepared by the appellant narrated that, on various occasions between 1998 and 2001, the respondent had removed a condom during consensual intercourse with NA and continued to penetrate her without her consent. An objection was made to the docket on the basis that the only libel of non-consensual sexual activity concerned the continuation of intercourse after removal of a condom, and no application had been made to lead evidence of consensual acts.

It was the intention of the advocate depute to lead evidence from NA along the lines of a statement she had given to the police to the effect that she had been subjected to several rapes by the respondent over the period in the docket. These included intercourse in a hospital room where NA was recovering from an assault by the respondent and other incidents that had taken place at the complainer’s mother’s flat.

The trial judge sustained the objection, reasoning that the Crown had failed to give fair notice of what they intended to prove. After the objection had been sustained, the advocate depute moved to amend the indictment to add the word “all” before the words “without her consent”. This was opposed and refused on the basis it would change the character of the offence.

It was submitted by the appellant that the docket required to be interpreted against the background of the disclosed police statement. It had been cleared that NA’s testimony was intended to cover several instances of non-consensual penetration and the docket specified that the conduct had occurred on various occasions at several locations over an extended period of time.

Interests of justice

Lord Carloway, delivering the opinion of the court, observed: “Had the court been considering the meaning of the libel in the docket, it would have concluded, as the trial judge did, that it failed to give fair notice that the Crown intended to lead evidence of a series of rapes other than those involving continuing sexual intercourse after the removal of a condom (an activity referred to by the parties as ‘stealthing’). The fact that the defence were aware that NA could give evidence of the other rapes is not strictly relevant to the issue of fair notice since it depends on the terms of the libel and cannot be provided by material outside the four corners of the libel.”

He continued: “The libel is determinative of whether fair notice has been given. If the Crown do not libel crimes, which they might be able to prove or about which they intend to lead evidence, that is, subject to the power of amendment, an end of the matter. These principles apply just as much to dockets as they do to the substantive charges.”

Addressing whether the original docket had been defective, Lord Carloway said: “Despite the Crown’s protestations to the contrary, the libel in the docket is defective in that it does not cover, and thus give fair notice of, the testimony which the Crown seek to adduce relative to the non-consensual sexual activity involving NA, other than any ‘stealthing’ episodes. That material cannot be adduced unless the libel in the docket is amended. If it is not amended, what are very serious substantive charges, which involve the complainer MM, will not be capable of proof.”

However, on whether the trial judge ought to have allowed an amendment, he concluded: “It is not suggested that the respondent will suffer any prejudice, beyond that consequence. It is on that basis that the court considers that the trial judge erred. It is in the interests of justice that the amendment should be allowed. The trial judge ought, although he was not initially asked to do so, to have allowed amendment and consequently repelled the objection.”

The court therefore allowed the proposed amendment to the docket by the Crown, repelled the objection to NA’s testimony, and remitted the case to the trial judge to proceed as accords.