High Court dismisses appeal against domestic abuse conviction, finding admission of hearsay evidence did not render trial unfair

The appellant was convicted on a charge of domestic abuse against his ex-partner. Founding upon an evidentiary decision made by the sheriff at trial, he appealed against his conviction before the Sheriff Appeal Court and, subsequently, the Appeal Court of the High Court of Justiciary.

The appeal was heard by the Lord Justice Clerk, Lord Beckett; Lord Matthews and Lord Clark, with Simon Collins appearing for the appellant and Paul Harvey, advocate depute, for the Crown.

Unfit to give evidence in any competent manner

In 2024, the appellant was convicted of an offence arising under section 1 of the Domestic Abuse (Scotland) Act 2018. At trial, the Crown sought to admit evidence of statements made by the appellant’s ex-partner, AA, to a police constable in 2023. To such end, an application under section 259 of the Criminal Procedure (Scotland) Act 1995, which provides for exceptions to the general inadmissibility of hearsay evidence, was made.

The Crown founded upon section 259(2)(a) of the 1995 Act, which provides for the satisfaction of one of the criteria required to be met before hearsay evidence is admissible in cases where the person who made the statement “is dead or is, by reason of [her] bodily or mental condition, unfit or unable to give evidence in any competent manner”.

The application stated that AA was accordingly unfit because she suffered variously from PTSD, severe anxiety and anorexia nervosa. Letters from AA’s GP and community mental health nurse respectively were lodged in support, vouching among other things that questioning of AA would be likely to lead to levels of stress triggering dissociation.

Nevertheless, the application was refused by the sheriff on account of its failure to address the possibility of using special measures to allow AA to give evidence. A second section 259 application, accompanied by a soul and conscience declaration by AA’s GP that she was unfit in toto to give evidence, was, however, successful.

At trial, the sheriff heard further evidence from AA’s sons and neighbours. A restrictive approach was, however, taken in respect of the hearsay evidence, with reliance on the statements admitted following the section 259 application made only where consistent with witness evidence. That cautious approach led the Sheriff Appeal Court to conclude, following the appellant’s appeal against conviction, that although the sheriff had erred in allowing the Crown’s application, no miscarriage of justice had occurred.

Sufficient basis for sheriff’s findings

Addressing the appellant’s subsequent appeal against the Sheriff Appeal Court’s decision, the Lord Beckett began by observing: “The common law prohibition against hearsay is commonly expressed as meaning that any statement other than one made by a (living) person while giving oral evidence in proceedings is inadmissible as evidence of any fact or opinion asserted … The SLC proposed [in its Report on Hearsay Evidence in Criminal Proceedings] at 6.10: ‘…Death should normally be established beyond argument by the production of a death certificate, and unfitness by reason of a bodily or mental condition by the production of a medical certificate in appropriate terms.’”

He continued: “Whether AA was unfit or unable to give evidence in any competent manner was a matter for the sheriff to determine on the balance of probabilities. Section 259 conferred a duty on the sheriff to make a finding in fact in that regard. To make such a finding, the sheriff required to have before her suitable medical evidence providing sufficient explanation why AA was unfit to give evidence in any competent manner, including with the assistance of the available special measures.”

Referring to the medical evidence submitted alongside the Crown’s section 259 application, the Lord Justice Clerk added: “[AA’s community mental health nurse] confirmed that AA presented with signs of complex PTSD with severe anxiety and other mental health difficulties, all of which were aggravated by increased stress. [Her GP] supported [that] view, adding detailed information about AA’s mental health triggers together with her weight loss and lifestyle. She noted that AA’s PTSD was related to incidents of a sexual nature, which was relevant since the charge included sexual averments. She specifically considered AA’s ability to give evidence with the assistance of special measures, including the use of screens, or by being ‘in another building or more remotely’ before concluding that ‘to comply with any of the special measures, would (sic) reliably predict a worsening of her PTSD and of her anorexia nervosa as a recurrent pattern of behaviour’.”

Turning to address the basis of the appeal, he continued: “We disagree with the [Sheriff Appeal Court] that the sheriff was not entitled to find that the conditions of section 259 had been met. The SAC appears to have read in evidential barriers that are not found in section 259 and erred in interfering without justification in a finding that the sheriff was entitled to make. There is nothing in section 259, or in any of the authorities referred to us, stipulating a requirement for a medical consultant or any other medical expert to provide evidence, on soul and conscience, to the effect that the conditions of section 259(2)(a) are met. No doubt evidence from a psychiatrist could be compelling, perhaps more compelling than that from a GP, but it will not always be available. In this case there was evidence from a GP who knew the witness well and from a Community Mental Health Nurse.”

The Lord Justice Clerk concluded: “In this case, the letters … provided a sufficient basis to entitle the sheriff to make the findings she did. The letters addressed AA’s ability to give evidence, either at trial or with the assistance of any special measures including evidence by commissioner, as the sheriff found in fact. Although we have disagreed with the SAC’s reasoning, the effect of our respective decisions is the same. It follows that there has been no miscarriage of justice …”

The appeal was accordingly refused.