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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 21
HCA/2020/4/XM
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Malcolm
Lord Glennie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in the petition to the nobile officium
by
RR
Petitioner
against
(First) HER MAJESTY'S ADVOCATE; and (Second) LV
Respondents
Petitioner: Bain QC, Harvey; Urquhart's (for Livingstone Brown, Glasgow)
First Respondent: The Lord Advocate (Wolffe QC), R Charteris and A Cameron; the Crown Agent
Second Respondent: CM Mitchell QC; MTM Defence
Interveners (Rape Crisis Scotland): Gilchrist, V Mori;
7 October 2020
Introduction
[1]
The petitioner is the complainer in criminal proceedings in which the second
respondent is charged with, inter alia, raping her on occasions between 13 and 15 August
2
2018 at a hotel in Pitlochry. The second respondent made an application under section 275
of the Criminal Procedure (Scotland) Act 1995. It was heard during the course of a
preliminary hearing at the High Court in Glasgow on 2 October 2019. The petitioner was
not advised that the application had been made. She was only told of it some four months
later, after it had been granted in part, when the Crown sought to precognosce her.
[2]
The petitioner has applied to the nobile officium of the court for orders: (i) declaring
the decision to grant the section 275 application to have been "wrong, unjust and contrary
to law"; (ii) quashing the decision; and (iii) refusing the application. Much of the petition
involves a challenge to the merits of the decision at first instance. It addresses its
competency under reference to Article 8 of the European Convention. It then avers that, in
terms of section 1(3)(d) of the Victims and Witnesses (Scotland) Act 2014, the petitioner
had, and has, a right to participate effectively in the proceedings. That right required that
she be advised of the application in advance in order to enable her to discuss her position
with the Crown and to challenge the application. The latter would, at least in certain
circumstances, include a right to appear at the hearing of the application.
[3]
The petition raises an important issue of principle in relation to a complainer's right
to participate in criminal proceedings. The court accordingly convened a Full Bench to
consider it. The court intimated to parties that, if the court considered that there was such
a right and there had been a failure to afford the petitioner that right, it would simply
quash the first instance decision. A re-hearing, at which the petitioner's views would be
heard, would follow. Although the petitioner's preference was for this court to decide the
merits of the application, this was not considered appropriate. The petitioner's primary
remedy, as set out in the petition, would have been granted. It was not for this court, on a
petition to the nobile officium of this nature, to determine the merits of the section 275
3
application as if it were hearing a criminal appeal at which the petitioner had a right to
appear to contest the merits.
The European Convention on Human Rights
[4]
The European Convention provides:
"Right to respect for private and family life
1.
Everyone has the right to respect for his private ... life, ...
2.
There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society ... for the protection of the rights and freedoms of others."
Statutes and Directives
The Criminal Procedure (Scotland) Act 1995 provides:
[5]
"274
Restrictions on evidence relation to sexual offences.
(1)
In the trial of a person charged with [a sexual] offence ... the court shall not
admit, or allow questioning designed to elicit, evidence which shows or tends to
show that the complainer
(a)
is not of good character (whether in relation to sexual matters or
otherwise);
(b)
has, at any time, engaged in sexual behaviour not forming part of the
subject matter of the charge;
(c)
has, at any time (other than shortly before, at the same time as or
shortly after the acts which form part of the subject matter of the charge),
engaged in such behaviour, not being sexual behaviour, as might found the
inference that the complainer-
(i)
is likely to have consented to those acts; or
(ii)
is not a credible or reliable witness; ...
...
275
Exceptions to restrictions under section 274.
(1)
The court may, on application made to it, admit such evidence or allow such
questioning as is referred to in subsection (1) of section 274 of this Act if satisfied
that-
(a)
the evidence or questioning will relate only to a specific occurrence
or occurrences of sexual or other behaviour or to specific facts
demonstrating-
(i)
the complainer's character; ...
(b)
that occurrence or those occurrences of behaviour or facts are
4
relevant to establishing whether the accused is guilty of the offence with
which he is charged; and
(c)
the probative value of the evidence sought to be admitted or elicited
is significant and is likely to outweigh any risk of prejudice to the proper
administration of justice arising from its being admitted or elicited.
(2)
In subsection (1) above-
(a)
the reference to an occurrence or occurrences of sexual behaviour
includes a reference to undergoing or being made subject to any experience
of a sexual nature;
(b)
`the proper administration of justice' includes-
(i)
appropriate protection of a complainer's dignity and privacy;
and
(ii)
ensuring that the facts and circumstances of which a jury is
made aware are ... relevant to an issue which is to be put before the
jury and commensurate to the importance of that issue to the jury's
verdict ...
...
(4)
The party making such an application shall, when making it, send a
copy of it-
(a)
when that party is the prosecutor, to the accused; and
(b)
when that party is the accused, to the prosecutor and any co-
accused.
....
."
The Directive 2012/29/EU of the European Parliament and the Council establishing
minimum standards on the rights, support and protection of victims of Crime and
replacing Council Framework Decision 2001/220/JHA (the Victims' Rights Directive)
[6]
The Victims' Rights Directive provides:
"CHAPTER 1
GENERAL PROVISIONS
Article 1
Objectives
1.
The purpose of this Directive is to ensure that victims of crime receive
appropriate information, support and protection and are able to participate in
criminal proceedings.
Member States shall ensure that victims are recognized and treated in a respectful
... manner, in all contacts with ... a competent authority, operating within the
context of criminal proceedings. ...
5
...
CHAPTER 3
PARTICIPATION IN CRIMINAL PROCEEDINGS
Article 10
Right to be heard
1.
Member States shall ensure that victims may be heard during criminal
proceedings and may provide evidence. ...
2.
The procedural rules under which victims may be heard during criminal
proceedings and may provide evidence shall be determined by national law.
CHAPTER 4
PROTECTION OF VICTIMS AND RECOGNITION OF VICTIMS WITH SPECIFIC
PROTECTION NEEDS
Article 18
Right to protection
Without prejudice to the rights of the defence, Member States shall ensure that
measures are available to protect victims ... from secondary and repeat
victimisation, from intimidation ... including against the risk of emotional or
psychological harm, and to protect the dignity of victims during questioning and
when testifying ...
...
Article 21
Right to protection of privacy
1.
Member States shall ensure that competent authorities may take during the
criminal proceedings appropriate measures to protect the privacy ...
...
Article 22
Individual assessment of victims to identify specific protection needs
1.
Member States shall ensure that victims receive a timely and individual
assessment, in accordance with national procedures, to identify specific protection
needs and to determine whether and to what extent they would benefit from special
measures ...
3.
In the context of the individual assessment, particular attention shall be paid
to victims who have suffered considerable harm due to the severity of the crime; ...
victims whose relationship to and dependence on the offender make them
particularly vulnerable. In this regard, victims of ... gender-based violence,
violence in a close relationship, sexual violence ... shall be duly considered.
...".
The Articles are preceded by a large number of recitals, including the following:
"(20) The role of victims in the criminal justice system and whether they can
participate actively in criminal proceedings vary across Member States, depending
6
on the national system, and is determined by one or more of the following criteria:
whether the victim is under a legal requirement or is requested to participate
actively in criminal proceedings, for example as a witness; and/or whether the
victim has a legal entitlement under national law to participate actively in criminal
proceedings and is seeking to do so, where the national system does not provide
that victims have the legal status of a party to the criminal proceedings. Member
States should determine which of those criteria apply to determine the scope of
rights set out in this Directive where there are references to the role of the victim in
the relevant criminal justice system.
...
(41)
The right of victims to be heard should be considered to have been fulfilled
where victims are permitted to make statements or explanations in writing."
The Victims and Witnesses (Scotland) Act 2014
[7]
The 2014 Act provides:
"1
General principles
(1)
Each person mentioned in subsection (2) must have regard to the principles
mentioned in subsection (3) ....
(2)
The persons are-
(a)
the Lord Advocate,
(b)
the Scottish Ministers,
...
(d)
the Scottish Courts and Tribunals Service,
...
(3)
The principles are-
(a)
that a victim or witness should be able to obtain information about
what is happening in ... proceedings, ...
(d)
that, in so far as it would be appropriate to do so, a victim or witness
should be able to participate effectively in the ... proceedings.
1A
Further general principles applicable to victims
(1)
Each person mentioned in section 1(2) must have regard to the principles
mentioned in subsection (2) ...
(2)
The principles are-
(a)
that victims should be treated in a respectful ... manner,
...
(e)
that victims should be protected from-
(i)
secondary and repeat victimisation,
(ii)
intimidation ...".
7
Background
[8]
The second respondent was indicted to a Preliminary Hearing on 17 July 2019 at the
High Court in Glasgow on three charges as follows:
"(01) on various occasions between 13... and 16 August 2018... during the course
of a journey from London to the ... Hotel, Pitlochry, at said hotel and elsewhere,
you ... did behave in a threatening or abusive manner which was likely to cause a
reasonable person to suffer fear and alarm in that you did act in an aggressive
manner, shout and utter derogatory comments towards [the petitioner]... and
threaten her with violence: 38(1) of the Criminal Justice and Licensing (Scotland)
Act 2010;
(02)
on various occasions on 13... and 14 August 2018 at...Hotel, Pitlochry,
you... did assault [the petitioner]... and seize her head and penetrate her mouth
with your penis and you did thus rape her; CONTRARY to Section 1 of the Sexual
Offences (Scotland) Act 2009; and
(3)
on 15 August 2018... at... Hotel, Pitlochry, you... did assault [the
petitioner]... and seize her head, repeatedly penetrate her mouth with your penis
and you did thus rape her, repeatedly strike her on the buttocks, pull her hair, seize
her by the throat, threaten to penetrate her anus with your penis and repeatedly
penetrate her vagina with your penis and you did thus rape her, all to her injury;
CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009."
[9]
The original PH was postponed until 11 September and then until 2 October 2019,
when the second respondent made an application under section 275 of the 1995 Act. The
petitioner was not told about this application and was not precognosced upon its terms.
The second respondent sought to lead the following evidence at trial:
"a)
That on 3 July 2018 the applicant and the complainer... met each other at the
Wimbledon Tennis Tournament. They socialized and went for a drink together.
They exchanged mobile telephone numbers.
b)
They began a relationship online that developed. They exchanged
messages. They discussed sex. She said that she loved hard sex and was
adventurous.
c)
They agreed that the applicant would travel to London to see the
complainer. The applicant travelled to London on 22 July 2018 to see the
complainer.
They spent the day together. They sat on a bench in Kensington Gardens and
kissed each other intimately. The applicant touched her face and put his fingers in
her mouth. The complainer sat with her legs across the applicant's lap. They
touched each other's bodies. The applicant kissed her breasts and touch (sic) her
8
upper thighs close to her vagina. When anyone approached, they stopped. The
complainer was giggling and smiling. She said `we're crazy what we are doing'.
They spoke about 50 shades of grey. She said that she liked to be spanked hard on
her buttocks.
d)
The applicant returned to Germany and they continued their relationship.
They arranged to go on holiday together.
e)
The applicant arrived in London on 11 August 2018. He and the complainer
arranged to meet that evening at around 1830 hours. They spent time together
alone then met the applicant's sister and her husband for dinner. The applicant and
the complainer were smiling and joking and holding hands during dinner.
f)
The applicant was staying with his sister and her husband at their home that
night and after dinner he and the complainer returned to the house with the
applicant's sister and her husband. She and the applicant retired to the guest
bedroom where they participated in consensual sexual intercourse. When the
complainer left at around 0120 hours, she messaged the applicant from the taxi and
they continued to message each other for around an hour.
g)
On 13 August 2018, they met and travelled to Scotland together. They
walked from the railway station in Dunkeld to the hotel holding hands.
h)
On 14 August 2018, they had breakfast together in the hotel. They went for
a hike together up Ben Vrackie. At the top, they were holding hands and kissing
each other. They returned to the hotel and showered and changed before going for
dinner together. They held hands as they walked to the restaurant.
They returned to the hotel and participated in consensual sexual activity. After the
sexual activity they cuddled in the bed together.
i)
On 15 August 2018 they travelled to Perth and rented a car. They travelled
in the car together to St Andrews. They walked to the beach and sat on the sand
together. She sat in front of him between his legs and he had his arms around her.
They were cuddling. They were sharing binoculars to watch people and laughing
together. The applicant fed her biscuits. He carried her across water on the beach.
She was laughing. They walked beside the beach holding hands.
They returned to Dunkeld and went for a drink before returning to the hotel.
j)
At the hotel, the applicant had a bath and invited the complainer to join him
in it which she did. They were kissing. They participated in consensual sexual
activity including intercourse that began in the bath. In the bath, the applicant was
behind the complainer. They were standing. The complainer told the applicant to
spank her buttocks hard. She told him to pull her hair hard. Afterwards, they
kissed each other and cuddled in the bed."
[10]
The PH judge refused paragraphs a), d), e), g) and i) as unnecessary. By this, the
judge meant that evidence of this conduct would be admissible. It did not bear upon the
petitioner's character. It was not sexual behaviour and did not tend to show that the
9
petitioner had consented to sexual intercourse. In paragraph b) he allowed only the words
"She said that she loved hard sex and was adventurous". In paragraph c) the first two
sentences were refused as unnecessary but the judge allowed "The applicant touched her
face and put his fingers in her mouth" and "She said that she liked to be spanked hard on
her buttocks". The reference to Fifty Shades of Grey, and the sexual activity in the park,
was excluded. Paragraph f) was excluded. In paragraph h) only the sentences "They
returned to the hotel and participated in consensual sexual activity. After the sexual
activity they cuddled in bed together" were allowed. Paragraph j) was allowed in its
entirety.
[11]
On the basis of the PH judge's decision, therefore, the second respondent will be
able to cross-examine and lead evidence intended to demonstrate the development of the
relationship between the second respondent and the petitioner from early July 2018. This
would include references to (undated) messages or discussions in which the petitioner said
she loved "hard sex" and was adventurous. The evidence or cross-examination would
cover the second respondent and the petitioner meeting again in London by arrangement
on 22 July and engaging in intimacy, falling short of intercourse, but including that the
petitioner stating that she liked to be spanked. It would encompass them meeting once
more in London on 11 August and engaging in consensual sex, travelling to the hotel in
Pitlochry on 13 August and having consensual sex there on 14 August. It would cover
engaging in consensual sex again on 15 August and include a request from the petitioner to
be spanked and to have her hair pulled hard. The second respondent's special defence of
consent includes a concession that the sexual activity in charges (02) and (03) took place.
[12]
The petitioner takes issue with the admissibility of those parts of paragraphs 1b
(messages about hard sex and adventurousness) and 1c (erroneously referred to as 1d in
10
the petition; conversation about spanking).
Submissions
Petitioner
[13]
The petitioner submitted that the petition was competent because it was the only
means by which the petitioner could obtain recognition that she had the right to be heard
before the PH judge. The High Court had the power, in the exercise of its nobile officium, to
grant such orders where the circumstances were extraordinary or unforeseen and where no
other remedy or procedure was provided by law (Anderson v HM Advocate 1974 SLT 239 at
240; Wylie v HM Advocate 1966 SLT 149 at 151; and Wan Ping Nam v Minister of Justice of the
Federal German Republic 1972 JC 43; Express Newspapers, Ptnrs 1999 JC 176 at 178 179). The
petitioner's circumstances were extraordinary or unforeseen and no other remedy or
procedure was provided. Although the nobile officium was not available, where its exercise
would conflict with the provisions of a statutory scheme, there was no such conflict here.
There was no legislative impediment to a complainer being heard at a section 275 hearing.
[14]
There was no general right for victims to be direct participants in criminal
proceedings (Scottish Criminal Cases Review Commission v Swire 2016 JC 38 at para [21]; and
Porch v Dunn 2016 JC 101 at paras [34]-[36]). The petitioner did not assert such a right; only
one to be heard at a section 275 hearing. This was because, in terms of the section 1(3)(d) of
the Victims and Witnesses (Scotland) Act 2014, it was both appropriate and necessary to
enable a complainer to participate effectively in the proceedings. There was no difference
between the petitioner's case and the situation in which there was an attempt to recover a
complainer's medical records (WF v Scottish Ministers 2016 SLT 359). Both engaged a
complainer's Article 8 rights (see also AR v HM Advocate [2019] HCJ 81 at paras [8] and [9]).
11
[15]
Similarly, under Article 10 of the Victims' Rights Directive, the petitioner had the
right to be heard during criminal proceedings. This was necessary to ensure there was no
breach of the other rights under the Directive, including the right not to be questioned
unnecessarily about a complainer's private life. Although Recital (41) to the Directive
stated that the right of a victim to be heard was fulfilled when a complainer was permitted
to make statements or "explanations" in writing, that would not amount to effective
participation in a section 275 application. A preamble to a Directive could not be relied on
either as a ground for derogating from the Directive or as a means of interpreting it in a
manner contrary to the wording (C-134/08 Hauptzollamt Bremen v JE Tyson Parketthandel
GmbH hanse j., unreported, CJEU, 2 April 2009, at para [16]).
[16]
As both respondents accepted, the petitioner's Article 8 rights were engaged (Y v
Slovenia (2016) 62 EHRR 371, at paras 105 and 107-116; and R v T (CA) [2002] 1 WLR 632 at
para 38). Section 275 directed the court to consider whether the probative value of the
evidence outweighed the need for appropriate protection of the complainer's dignity and
privacy. If the petitioner were not given an opportunity to be heard, how was the court to
carry out the balancing exercise? Given the Crown's practice of not precognoscing
complainers about the contents of section 275 applications, the court cannot know whether
the matters averred were accepted as true. It would be unable to determine one of the key
issues; whether the evidence raised a collateral issue. The complainer's interests and those
of the Crown would not always align. The court must apply the test in section 275 for itself,
even if the Crown did not oppose the application (RN v HM Advocate 2020 JC 132 (at
para [20]). The Crown were not always correct in their assessment of whether an application
should be opposed (LL v HM Advocate 2018 JC 182, at para [8]). The court may be left
weighing a complainer's Article 8 rights, without having heard any representations about
12
those rights.
[17]
Even on the weaker provisions of Article 3 of the earlier Framework Decision, there
were certain minimum rights, including an opportunity to express an opinion as well as
giving evidence (C-483/09 and C-1/10, Gueye and Sanchez [2012] 1 WLR 2672; Council of
Europe Convention on preventing and combating violence against women and domestic violence
(the Istanbul Convention) Art 56). Where there was a right to be heard as a matter of EU law,
observance of the right was required, even where applicable national legislation did not
expressly provide for it (C-249/13 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques,
unreported, CJEU, 11 December 2014, at para 39).
[18]
There was no need for legislation. The right to be heard could, as with the right in
WF v Scottish Ministers (supra), be accommodated within the Preliminary Hearing/First Diet
system. Even if legislation was necessary, it already existed in the form of section 1(3)(d) of
the 2014 Act. When the Cabinet Secretary for Justice gave evidence to the Justice
Committee on 14 May 2013 (Col 2756), he confirmed that the Bill related to the Directive.
The petitioner's position was precisely what the Cabinet Secretary had in mind.
[19]
Ireland had incorporated a right to be heard in respect of applications to cross-
examine on sexual history (Sex Offenders Act 2001) and before counselling records could
be disclosed (Criminal Evidence Act 1992 s 19A). In Canada there was a right to be heard
in respect of counselling records (Canadian Criminal Code paras 278.1 to 278.91) and the
admission of evidence of previous sexual behaviour (para 276). The complainer had the
right to appear at admissibility hearings on sexual activity evidence (s 278.94(2)).
[20]
The Gillen report on serious sexual offences in Northern Ireland had surveyed the
position in European and common-law jurisdictions. It concluded that, in the common-law
jurisdictions, there was a "clear discernible trend" towards the provision of representation
13
to complainers (para 5.42). It recommended that there should be a right to appear to object
to the disclosure of private material and the introduction of evidence of previous sexual
history (see chapter 5, para 5.73). The availability of representation for victims was the
norm in continental European countries (Raitt: Independent Legal Representation in Rape
Cases: Meeting the Justice Deficit in Adversarial Proceedings, 2013 Crim LR 729).
Interveners
[21]
The interveners adopted the petitioner's argument. Complainers were deterred
from reporting rape because of a fear of not being believed or having their credibility
attacked under reference to their previous sexual history (R v A [2002] 1 AC 450).
Although a judge was entitled to prevent cross-examination which intruded upon a
complainer's dignity and privacy, cross-examination remained gruelling and humiliating.
Section 275 applications were made in 72% of cases. These were invariably allowed
(Scottish Government Research: Impact of Aspects of the Law of Evidence in Sexual Offence
Trials: An Evaluation Study) at para 10).
[22]
An alleged expressed desire for "rough sex" was often used as an explanation for
injuries sustained by a complainer. Seeking to elicit evidence of a complainer's sexual
history, in an attempt to alleviate the culpability of an accused, represented an affront to a
complainer's privacy. Some complainers had described the process as worse than the rape
itself. Complainers talked about feeling ambushed and ill-prepared for the questions they
were asked in court.
[23]
The Crown could not take instructions from a complainer or prioritise her interests.
The Crown did not consult with complainers on the terms of applications. Complainers'
views were not sought and they were not given any advice. The Crown often decided not to
14
oppose applications (eg LL v HM Advocate (supra); RN v HM Advocate (supra); HM Advocate v
JG [2019] HCJ 71). Section 275 applications required a balancing exercise between the rights
of the accused and those of the complainer. Effective participation meant that a complainer
should: be informed that an application has been made; have the ability to oppose an
application; be legally represented at any hearing; and have a right of appeal.
First Respondent
[24]
The first respondent submitted that the petition was incompetent. The nobile officium
of the High Court was available to address circumstances of injustice which were
extraordinary or unforeseen and where no other remedy was provided for by law. It had
been exercised, for example to provide a remedy: (a) in circumstances where it was clear that
Parliament's intention had been to provide such a remedy (Wan Ping Nam v Minister of
Justice of German Federal Republic (supra) at 48; Lloyds and Scottish Finance v HM Advocate 1974
JC 24 at 27); or (b) for third parties affected by criminal proceedings (Kemp, Petnr 1982 SLT
357; Smith, Petnr 1987 SCCR 726; BBC, Petnrs (No. 3) 2002 SLT 2; A v Harrower 2018 JC 93). In
JC, Petnr 2020 SCCR 151, a complainer was allowed to challenge, by way of a petition to the
nobile officium, a decision to order the recovery of her medical records. The nobile officium
could not be invoked where to do so would conflict with statutory intention (Anderson v HM
Advocate (supra) at 240; Lang, Petnr 1991 SLT 931 at 933; Black, Petnr 1991 SCCR 1).
[25]
The statutory regime in the 1995 Act and specifically that for applications under
section 275, did not give a complainer a locus to appear. Neither the European Convention
nor EU law required a complainer to be given such a right. The exercise of the nobile officium
would be incompatible with the statutory intention reflected in the 1995 Act. The petition
was therefore incompetent.
15
[26]
The parties to criminal proceedings were the prosecutor and the accused.
Complainers did not have a right to participate directly (Scottish Criminal Cases Review
Commission v Swire (supra) at paras [20]-[21]; Porch v Dunn (supra) at paras [34]-[36]). Any
modification of that central tenet of criminal procedure would be a matter for the legislature.
[27]
Sections 274 and 275 of the 1995 Act envisaged that the only parties to the
proceedings would be the prosecutor and the accused (s 275(4)). There was no statutory
provision requiring, or providing for, notice to be given to a complainer or permitting a
complainer to make submissions. When an application was made during the course of a
trial, the legislation required the application to be made in the absence of the complainer
(s 275B(2)). The first respondent explained that it was Crown policy to advise complainers
of section 275 applications and the subsequent decisions. This had not happened in the
petitioner's case. That was regrettable. It was not routine to precognosce complainers on
section 275 applications; this being a matter for the allocated advocate depute.
[28]
In appropriate cases, the fair trial guarantees in Article 6 had to be balanced against
the protections given to the interests of witnesses and victims by other provisions of the
been to evaluate the overall fairness of the proceedings having regard to the rights of the
defence and the public, victims and witnesses (Al-Khawaja v United Kingdom (2012) 54 EHRR
23 at para 118). Sections 274 and 275 were a reasonable and flexible response to the problem
of questioning of complainers. They were compatible with Article 6 (Judge v United Kingdom
required in order to protect a victim's rights. It did not support the proposition that a
complainer had a right to appear and to make submissions on admissibility.
[29]
Criminal procedure incorporated features which provided robust protections for the
16
Article 8 rights of victims. They included: (i) the power to prohibit the conduct of the
defence by the accused (1995 Act, s 288F); (ii) special measures (1995 Act, s 271(1)(c)(i) and
271A); (iii) restrictions on the admissibility of evidence (CJM v HM Advocate 2013 SCCR 215;
HM Advocate v CJW 2017 SCCR 84 at para [7]); (iv) limits on the questioning of complainers
(1995 Act, ss 274-275); (v) the professional responsibility of legal practitioners (Donegan v
HM Advocate 2019 JC 81, at para 56); and (vi) the court's power to intervene to control
questioning (Dreghorn v HM Advocate 2015 SCCR 349 at paras 38-40) and to observe
appropriate restraint in posing questions (SG v HM Advocate 2020 SCCR 79).
[30]
Questioning or evidence which would engage the Article 8 rights of complainers had
to satisfy the common law requirements for admissibility (RG v HM Advocate 2019 SCCR
172; RN v HM Advocate [2020] HCJAC 3 at para [22]). Material which was collateral to the
issues would not generally be admissible (CJM v HM Advocate 2013 SCCR 215 at paras [28]
and [55]-[56]). Evidence of either good or bad character was, in general, inadmissible (HM
Advocate v CJW 2017 SCCR 84 at para [7]). The significant constraints on the questioning of
complainers was illustrated by repeated decisions of the High Court (CJM v HM Advocate
(supra); HM Advocate v CJW (supra); Kerseboom v HM Advocate 2017 JC 47; LL v HM Advocate
(supra); GW v HM Advocate 2019 JC 109; HM Advocate v JG [2019] HCJ 71; Oliver v HM
Advocate 2020 JC 119). The choice of means to secure compliance with Article 8 was a matter
that fell within the domestic authorities' margin of appreciation (X and Y v Netherlands (1986)
8 EHRR 235 at para 24; cf Bevacqua v Bulgaria, Application No. 71127/01, 12 June 2008).
[31]
A petition for commission and diligence to recover a complainer's medical records
was not part of criminal proceedings but proceedings "in connection with" the criminal
proceedings (WF v Scottish Ministers (supra) at para 43). WF was not, concerned with a step
in the criminal proceedings. Recovery of medical records directly engaged a complainer's
17
right to confidentiality (Z v Finland (1997) 25 EHRR 371 at para 95). It was on this basis that
it was decided that procedural fairness required the complainer to be given notice of such an
application and the opportunity to make representations (R(B) v Crown Court at Stafford
[2007] 1 WLR 1524 relied on in WF v Scottish Ministers (supra)). Not every decision which
may affect a complainer's Article 8 rights required that the complainer be given a right to be
heard. There would be material practical implications for the criminal process if
applications under section 275 required to be intimated to the complainer with a view to
giving her an opportunity to make representations.
[32]
Article 10 of the Victims' Rights Directive did not give a complainer the right to make
submissions on a section 275 application. Paragraph (20) of the Preamble recognised that
the role of the victim varied across the Member States. The Directive was not intended to
harmonise those variations The reference in Article 10(2) to being heard as well as providing
evidence fell to be read in the context of a Directive which applied from the moment a
complaint was made and did not only apply to the trial (Preamble, para (22)).
[33]
Rules which provided that it was for the public prosecutor to make applications in
relation to the way that a victim's evidence may be taken may be regarded as "part of the
logic of a system in which the Public Prosecutor is a judicial body with responsibility for
bringing prosecutions" (Case C-507/10, X v Y, unreported, CJEU, 21 December 2011, at
para 37). Member states were afforded a large measure of discretion on the specific means
by which they could implement that objective (Case 483/09 Gueye and Sanchez (supra) at
para 57; Case C-507/10 X v Y (supra) at paras 28, 33). The minimum content of the
obligations was to enable the victim to give testimony (Case C-404/07 Katz v Sós, unreported,
CJEU, 9 October 2008, at para 47; Case 483/09 Gueye and Sanchez (supra) at para 58).
18
Second Respondent
[34]
The accused opposed the petition as incompetent. The nobile officium was only
available to address circumstances of injustice which were extraordinary or unforeseen and
where no other remedy was provided for by law. It was not available where its exercise
would conflict with the provisions of the statutory scheme (Anderson v HM Advocate
(supra); Lang, Petnr (supra) at 933; Beck Petnr, 2010 SLT 519 at para 24). The circumstances
here were neither exceptional nor unforeseen.
[35]
Criminal proceedings were the subject of the detailed statutory regime set out in the
1995 Act. The complainer was not a party. Sections 274 and 275 of the 1995 Act were
designed, within that statutory regime, to secure respect for the complainer's Article 8
rights by placing a duty on the court to decide the application in accordance with the terms
of section 275(1), which included appropriate protection of a complainer's dignity and
privacy. Such decisions were subject to appeal in terms of section 74(1) of the 1995 Act and
were capable of review in terms of section 275(9) of the Act. Any change in the law in
respect of the direct participation of the complainer was a matter for the legislature.
[36]
Although the petitioner was a victim in terms of the Directive, it did not follow that
there was a right to intervene and to have an opportunity to shape the cross-examination.
WF v Scottish Ministers (supra) was not in point. In WF the Article 8 right of the complainer
was asserted as haver of the documents, not as a person who had a right to be part of the
trial process. A complainer was not asserting Article 8 rights when giving evidence.
Complainers were obliged to answer any question which the Court considered relevant.
They could not raise an Article 8 objection. The purpose of sections 274 and 275 was to find
a balance between the Article 6 rights of accused persons and the dignity of the complainer.
[37]
The Victims Directive did not state that a complainer became a party to the criminal
19
proceedings; simply that they are able to "to participate in criminal proceedings". It was
clear from this they were not parties to criminal proceedings but that they were entitled to
participate, which they do by giving evidence at trial.
Decision
Competency
[38]
The nobile officium of the High Court is a general power of superintendence. It is
available to deal with circumstances which are "extraordinary or unforeseen and where no
other remedy is provided for by law" (Meechan v Procurator Fiscal, Airdrie 2019 SLT 441, LJG
(Carloway), delivering the opinion of the court, at para [27] following Anderson v HM
Advocate 1974 SLT 239, LJG (Emslie) at 240). It cannot be invoked where the remedy sought
would conflict with the terms of a statute (Beck, Petnr 2010 SCCR 222, LJG (Hamilton),
delivering the opinion of the court, at para [24] following Anderson v HM Advocate (supra),
LJG (Emslie) at 240).
[39]
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. That being so, the court is
satisfied that the petitioner is entitled to petition the nobile officium in an attempt to vindicate
the right which she claims has been denied to her. 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. The petition is
20
competent.
The Victims' Rights Directive
[40]
The terms of the Victims' Rights Directive are clear. In so far as relevant for present
purposes, it requires that member states put in place systems which ensure that the victims
of crime receive appropriate information, are able to participate in criminal proceedings
(Art 1) and are treated in a respectful manner (ibid). There are protections in relation to a
victim's dignity when being questioned (Art 18) and concerning her privacy generally
(Art 21). The procedural rules governing the practical application of the rights are to be
determined by the member states (Art 10). The specific "Right to be heard" is, as it says, a
right to be heard during criminal proceedings and to provide evidence (Art 10). The
Directive recognises that some states allow a victim to be a party to the proceedings, while
others do not (Recital (20)). The right is said to be fulfilled when victims are permitted to
"make statements or explanations" in writing (Recital (41)).
[41]
Thus far, if the Court were looking solely at the Directive, it would be considering a
very general right to be heard during the proceedings; but not a right to be a party to them.
The right in the Directive is not one to be heard on all aspects of those proceedings or at all
times.
[42]
The extent to which it is necessary to look at the Directive is tempered by the
existence of primary legislation which seeks to transpose the Directive into Scots law by the
Victims and Witnesses (Scotland) Act 2014. It was not argued that the 2014 Act failed to do
so adequately. The Act was not challenged as disconform to the Directive. In that situation
it is to the Act and not the Directive that the court should look. Where an underlying
Directive has been properly implemented by national law, there is no scope for giving it
21
direct effect, especially where to do so would involve circumventing the plain terms of the
legislation (Royal Society for the Protection of Birds v Scottish Ministers 2017 SC 552, LP
(Carloway), delivering the opinion of the court, at para 187, and Salt International v Scottish
Ministers 2016 SLT 82, Lord Justice Clerk (Carloway), delivering the opinion of the court at
para 43, following Felicitas Rickmers-Linie KG & Co v Finanzamt fur Verkehrsteurn, Hamburg
[1982] 3 CMLR 447, Advocate-General (Slynn) at para 455 and Marks and Spencer v Customs
The 2014 Act
[43]
Section 1 of the Victims and Witnesses (Scotland) Act 2014 places an obligation on a
number of persons and institutions to have regard to certain principles when carrying out
their functions in relation to complainers. These persons include the first respondent, the
Scottish Ministers and the Scottish Courts and Tribunals Service; the latter being a reference
to the agency which provides administrative and other support for the courts and tribunals.
Section 1 does not impose an obligation on the courts themselves. 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. The issue which arises is whether there has been a
failure on the part of any of the persons specified, notably the first respondent but possibly
the SCTS too, to have regard to these principles and, if so, what the effect of that might be.
[44]
So far as becoming a party to the criminal proceedings is concerned, the starting
point is the domestic rules. The current system does not provide for victims to become
direct participants (Scottish Criminal Cases Review Commission v Swire 2016 JC 38, LJC
(Carloway), delivering the opinion of the court, at para [21], followed in Porch v Dunn 2016
22
JC 101, Lady Dorrian, delivering the opinion of the court, at paras [34]-[36]). 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 (Sexual Offences
(Procedure and Evidence) (Scotland) Act 2002). Not only did it not do so, it laid down the
procedure for intimating section 275 applications (1995 Act s 275(4)). This procedure does
not include notification to the complainer. Where an application is made during the course
of the trial, the procedure expressly excludes the complainer (s 275B(2)). Parliament had
another opportunity to include the complainer in the procedure when it implemented the
Directive in the 2014 Act. Once again, it did not do so.
[45]
The fact that most civilian systems do permit a victim the status of party, or allow her
to be represented at a hearing, is interesting. That might well be because it is more in
keeping with an inquisitorial procedure and, in some countries, the power of the court to
award damages in what are otherwise criminal proceedings. Equally, the introduction of
similar procedural rights in Ireland and Canada, and the recommendations of the Gillen
Report, may indicate a direction of travel (cf the position in England & Wales and currently
in Northern Ireland: Youth Justice and Criminal Evidence Act 1999 s 43(1) and the Criminal
Evidence (Northern Ireland) Order 1999/2789 Art 30). The comparative analysis serves only
to highlight the fact that Parliament has not elected to introduce a similar system in this
jurisdiction.
[46]
The position remains that, in terms of the 2014 Act, the first respondent must have
regard to the principles that a complainer should be able: (i) to obtain information about
what is happening in the proceedings; and (ii) to participate effectively in them. The issue is
how this should operate within the current system; that is by means other than the
complainer becoming a party to the prosecution at least for the purposes of section 275
23
applications. It must be for the Crown (and it can only be the Crown in practical terms since
the SCTS normally has no means of communicating directly with a complainer) to keep a
complainer informed of the progress of the prosecution and to secure that she has the
opportunity to participate in the proceedings.
[47]
The first respondent candidly accepted that the petitioner had not been advised that
a section 275 application was to be heard and therefore had not been able to participate at all
in that part of the proceedings. That being so, the court at first instance has proceeded to a
decision without proper knowledge of the facts. The court, when deciding upon the
admissibility of evidence, including determining a section 275 application will often have to
carry out a balancing exercise relative to probative value and prejudice to a complainer in
the form of a potential interference with her Article 8 rights. In order to do that, it must have
information on the complainer's position in relation to what is alleged. It will be important
to know, for example, whether the alleged fact is accepted by the complainer or whether it is
contentious. In the latter situation, if the evidence were admitted, the risk of the jury's focus
being deflected from the events libelled onto a different and perhaps peripheral matter
becomes very real. In assessing whether and to what extent a particular line of questioning
will impinge upon a complainer's dignity and privacy, it will normally be essential to know
what the complainer's attitude to the line is.
[48]
In these circumstances, since the petitioner's position was not made known to the
court at the preliminary hearing, the court will grant that part of the prayer of the petition
which seeks a declarator that the decision of the High Court dated 2 October 2019, which
granted the section 275 application in respect of parts of paras 1b) and 1c) (not d) was
contrary to law and falls to be quashed. The application on these parts will require to be
reconsidered in light of the petitioner's position. That position should be presented by the
24
Crown, after communication with the petitioner. The Crown will nevertheless be free to
comment upon the petitioner's position as they see fit.
Article 8
[49]
There is no doubt that a complainer's Article 8 rights are likely to be engaged when a
section 275 application is allowed and relates to, for example, conduct remote from the
events forming part of the libel. Whether what is allowed amounts to a breach of these
rights will depend upon the circumstances. The right is to have a person's privacy
respected. It is not one which prohibits questioning, or the leading of evidence, about
private aspects of a complainer's life, where that is in accordance with the law and necessary
in order to protect the rights and freedoms of others. An accused's right to a fair trial,
including the Article 6(1)(d) right to examine witnesses, may be an important factor in
determining an application. At this preliminary stage it is not possible to assert that the
petitioner's Article 8 rights will be, or are even likely to be, breached.
[50]
Given the protections which are built into criminal procedure, both at common law
and by sections 274 and 275 of the 1995 Act, a court ought, if it correctly applies the law, to
be able to ensure that a complainer's Article 8 rights are duly respected whilst securing a fair
trial for the accused at the same time. Evidence of matters which are irrelevant or collateral
to the offence libelled is inadmissible. Evidence of bad character is normally excluded as
collateral. In terms of sections 274 and 275, questioning or evidence, which is designed to
show that a complainer is not of good character, has engaged in sexual behaviour not
forming part of the events libelled or has, at a point remote from these events, behaved in a
manner from which an inference of consent or lack of credibility/reliability, is not generally
admissible. [51] The upshot of this is that, quite apart from section 1(3)(d) of the 2014 Act, in
25
order to respect a complainer's Article 8 rights, the court must be given information on the
complainer's position on the facts in, and her attitude to, any section 275 application.
Neither the statutory provisions nor Article 8 carry with them a right for a complainer to be
convened as a party. In the absence of statutory intervention, the system of criminal
prosecution remains an adversarial one between the Crown and the accused. The
complainer's status is still that of a witness to the facts libelled.
[52]
For the reasons given, 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. The court may require to adjust its preliminary
hearing procedure, and the relative form (Forms 9.3A and 9A.4) accordingly. 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.
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