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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 38
HCA/2021/68/XC
Lord Justice General
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
APPEAL AGAINST CONVICTION
by
JB
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: C Mitchell KC, Livingstone Brown, Solicitors, Glasgow
Respondent: Keenan KC, AD; the Crown Agent
____________
28 September 2022
[1]
This is an appeal against conviction which we heard and refused on 28 September
2022. We indicated that we would give our reasons in writing, which we now do.
[2]
On 28 January 2022 the appellant was convicted after trial of 5 charges, as follows:
"(1)
on various occasions between 3 August 1963 and 31 December 1987 he
assaulted JB to her injury and to the danger of her life;
2
(2)
on various occasions between 3 August 1963 and 31 December 1987 he
indecently assaulted JB and on one occasion when she had recently given birth and
on several occasions when she was asleep he raped her;
(4)
on various occasions between 15 January 1969 and 14 January 1978 he
indecently assaulted NB and raped her;
(6)
on various occasions between 15 January 1978 and 31 December 1999 he
assaulted NB and raped her; and
(7)
on various occasions between 15 January 1978 and 14 January 1997 he
indecently assaulted NB."
[3]
He was sentenced to a total period of imprisonment of eight years and six months.
The usual certification was made under the Sexual Offences Act 2003.
[4]
Attached to the indictment there was a docket containing 6 paragraphs. The first
paragraph narrated an assault on JB but an objection to that was upheld at a preliminary
hearing. The remaining paragraphs referred to sexual offending against NB in Spain
between 1 and 31 August 1989, 1 January and 31 December 1995, 1 January 1999 and
31 December 2005, 1 January 2001 and 31 December 2004, and 15 January 1997 and
14 January 1978. For some unexplained reason the paragraphs included the nomina iuris of
the offences constituted by the facts alleged. That should not have happened but nothing
turns on it for present purposes.
[5]
Other than in relation to the first paragraph, an objection to the docket was repelled
at the preliminary hearing referred to above. There is no appeal against that decision but the
existence of the docket was referred to in argument, as will be seen.
[6]
The grounds of appeal, of which two passed the sift, are discursive but the surviving
grounds (1) and (2) can be read together and distilled into the following broad propositions.
These are that the Crown unreasonably delayed in indicting the appellant. That delay
3
meant that the evidence of the complainer JB had to be led using the provisions of section
259 of the Criminal Procedure (Scotland) Act 1995 and as a consequence of all this the
appellant's trial was unfair.
Background
[7]
Much of the history of the case is contained in a joint minute, in a timeline produced
by the Crown and in the decision of the preliminary hearing judge, which also dealt with the
issue of delay and the proposed use of section 259.
[8]
The appellant and NB were both resident in Spain at the time the allegations were
made by NB. She travelled to Scotland in 2016 and reported matters to the police. Shortly
before this she had reported certain matters to the Spanish authorities. On 1 April 2016 a
DS Burns spoke to NB and then travelled to England to meet JB. Before DS Burns went to
see JB, NB went to stay with her for a few days. She denied influencing JB in any way before
she discussed matters with the police. According to NB, JB's health was good when NB
stayed with her. DS Burns interviewed JB on 12 July 2016 and a statement was noted. JB did
not appear to be confused or to have any difficulty with her memory at that stage.
[9]
The police decided to follow up the investigation and arrangements were made to
take another statement from JB by telephone. This was done on 19 September 2016, again by
DS Burns.
[10]
There was evidence from NB that JB travelled to Spain to spend Christmas with her
in 2016. At that time JB's health seemed fine. However, JB told NB that she had heard she
could get a test for Alzheimer's and was going to be tested.
[11]
In late January 2017 JB was diagnosed as suffering from Alzheimer's disease. This
diagnosis was made by a GP with a specialism in dementia. The information recorded at the
4
time included material to the effect that JB was independent, eating ready meals, had no
problems with medication but had a 12 months history of concentration lapses and panic
attacks. She seemed to be able to get out and about although there was a note that on one
occasion she had been out at 5am thinking that she was going to get her nails done. She was
able to express herself verbally, was oriented as to time and place and person and could
concentrate for the 40 minutes it took to get through the test. However, her score was 65 out
100; anything below 80 or 82 suggesting dementia. The history was one of slight memory
issues in connection with recent events. The doctor saw JB for review in May 2017 and at
that time, as previously, found her to be competent on the basis that she had been able to
understand all questions she had been asked and express herself coherently. It was only
short term memory which was affected.
[12]
Her own GP saw her on 11 April, 8 May and 27 June 2017, when she complained of
anxiety. She also had concerns about her concept of time. Later in 2017 JB reported going
out on her own and finding herself in places she could not remember.
[13]
According to NB there was a slow progression of the disease initially. JB continued
to lead an independent life until 2019. Additional help was not needed at home until
November 2017 when NB contacted social services.
[14]
In the middle of 2017 DS Burns travelled to see JB again to make enquiries about the
diagnosis of Alzheimer's disease. JB remembered who she was and steps were taken to
contact the GP. On or about 25 July 2017 information was obtained over the phone and the
Crown were notified of concerns about Alzheimer's disease. JB continued to live alone,
albeit with support from carers and friends but in 2019 she seemed chaotic and needy and
was admitted to residential care in the summer of that year.
5
[15]
Alzheimer's is a type of dementia which is progressive. Its rapidity is variable. It is
possible to have a slow development of the disease and then a quick progression at a later
stage. A consultant neuro-psychologist, who considered the medical records and
statements, gave evidence that there had been a considerable deterioration in JB's
Alzheimer's in 2019 and 2020 and possibly earlier. She was likely to have been in the early
stages of dementia when she gave her statements in 2016 because of the findings of the brain
scan and behavioural changes noted at the beginning of 2017. At that time her dementia
was mild. The preliminary hearing judge was satisfied that at the time the statements were
given JB was a competent witness. No challenge is made to that finding.
[16]
According to the timeline, the police submitted a report to the procurator fiscal on
16 November 2016. On the same day a report was sent to Crown counsel recommending a
pre-petition investigation and an instruction to that effect was given, also the same day.
[17]
Further work was instructed on 4 April 2017. The National Pre-Petition Team was
formed that month and immediately it began to absorb approximately 600 cases from the
North and East Federations of the Crown Office and Procurator Fiscal Service. These cases
had to be prioritised. On 3 May 2017 the case preparer emailed the police instructing some
additional enquiries and the need to involve the International Co-Operation Unit at Crown
Office was highlighted, presumably because of the ongoing Spanish investigation. On
31 May 2017 the case preparer instructed the police to make enquiries about JB's capacity
and further concerns were raised with the police by the case preparer following the receipt
of information that JB was in the early stages of Alzheimer's and was suffering from a heart
complaint.
6
[18]
The case preparer sought an update from the police on 28 August 2017 and two days
later there was further correspondence with the police regarding outstanding enquiries and
the Spanish investigation.
[19]
On 7 November 2017 there was communication between the case preparer and the
International Co-Operation Unit regarding the Spanish investigation.
[20]
In January 2018 the International Co-Operation Unit confirmed the outcome of the
Spanish investigation and subsequent appeal. That was to the effect that the Spanish case
would not be proceeding.
[21]
On 4 April 2018 NB was precognosced by telephone and thereafter efforts were made
to precognosce JB. It was not known then whether JB was fit to be precognosced.
[22]
In August 2018 the Crown received a medical report confirming that she was not fit.
[23]
On 5 December 2018 Crown counsel instructed that the accused should appear on
petition. He failed to appear at an invitation hearing on 13 February 2019 and a European
Arrest Warrant was issued 6 days later. Extradition was in due course effected following an
appeal and the appellant appeared on petition on 1 May 2019 before being released on bail.
The case was thereafter precognosced, with a number of ancillary enquiries undertaken. An
indictment was served on 24 October 2019.
Preliminary issues
[24]
Following service of the indictment the Crown and defence intimated various
preliminary issues. The Crown sought admission of JB's statements under section 259 of the
1995 Act, contending that JB was medically unfit to give evidence in light of her Alzheimer's
disease. The defence opposed the application on the bases that it could not be concluded
that she was competent when the statements were made and that their admission would
7
render the trial unfair. The Crown objected to the admissibility of psychological reports by a
defence expert witness who was intended to speak to the susceptibility of JB to influence by
others in light of her Alzheimer's disease, and issues such as childhood memory and
possible false memory as a result of unregulated therapy. The defence lodged an
application under section 275 of the Act and also objected to the dockets, contending that
these were neither relevant to nor necessary for proof of the charges on the indictment.
There was also a plea in bar of trial on the ground of oppression based on the delay in
bringing proceedings, with an associated compatibility minute. This also covered the
alleged prejudice to the appellant should JB's hearsay evidence be admitted.
The Preliminary Judge's decision
[25]
All the conditions of section 259 were met and the application was granted. There
was nothing to displace the presumption that JB was competent at the time of giving her
statements and the defence advanced no positive case that she was incapax. There was no
basis for the suggestion that NB had influenced JB. The expert evidence sought to be led by
the defence was not admissible. Questions of memory were within the province of the jury.
As we have indicated, the objection to paragraph 1 of the docket was upheld but the
objection to the remainder repelled. They were consistent with the time span of the
allegations in the indictment and met the terms of section 288BA of the 1995 Act.
[26]
The delay by the Crown did not prejudice the appellant to such an extent that the
trial would inevitably be unfair (HM Advocate v ARK 2013 SCCR 549). The investigation was
complex. There were difficulties in light of the time span of the conduct, the Spanish
proceedings and JB's deteriorating mental health. The delay was reasonable. The inclusion
of the dockets was not oppressive. It was in furtherance of the public interest in ensuring
8
crime is properly prosecuted (Graham v HM Advocate 2019 JC 26). In determining whether
the admission of hearsay evidence had resulted in an unfair trial, the court would require in
due course to consider the counter-balancing factors (Al-Khawaja v UK (2012) 54 EHRR 23,
Submissions for the appellant
[27]
The proceedings were unfair and oppressive because of the Crown's delay in
bringing them. The appellant could have been charged from 16 November 2016 when the
police submitted a report to the Crown and likely would have been had he not been residing
in Spain. The police were aware of JB's Alzheimer's diagnosis on 20 April 2017 and the
Crown instructed an enquiry into her capacity on 31 May of that year. Following the
police's response on 30 August 2017 there was a long period of unexplained inactivity until
August 2018 when a medical report confirmed she had no capacity. Alzheimer's being a
progressive condition it was obvious to the Crown that there was an urgency about the case.
The evidence did not materially advance between the original report and the Crown's
instruction that the appellant be placed on petition. The investigation was not complex or
exceptional. The prosecution was not delayed by the Spanish proceedings. The
unexplained delay meant that JB had lost her capacity by the time the appellant appeared on
petition. A trial could have taken place much earlier and JB subjected to cross-examination.
Alternatively a precognition or statement could have been taken from her. She was the sole
witness in relation to the three charges relating to her as well as two of the matters in the
docket.
[28]
The admission of her statements was oppressive and unfair. It was so significant as
to be determinative of the outcome of the case. The supportive evidence from NB was not
9
strong and had been shown to be contradictory. Had it been possible for the defence to
move the court to remove the evidence from the jury's consideration, as could be done in
England, that step would have been embarked upon. The trial judge's directions were
incapable of curing the prejudice caused by the admission of the statements (Nulty v HM
Advocate 2003 JC 140). All of this was aggravated by the absence of sufficient procedural
safeguards. NB was the only direct witness who spoke to any of the matters on the
indictment; the jury was in a remote location and could not properly assess NB's
demeanour; the Crown was permitted to lead evidence of the allegations in the docket
notwithstanding their lack or relevance or necessity; the defence was precluded from
leading evidence to challenge NB's evidence about her childhood memories; and the jury
was permitted to convict by simple majority. Corroboration was a neutral consideration. A
majority of Judges, in the response to a Scottish Government Consultation on reforming the
not proven verdict, observed that corroboration was confusing and imprecise so as to serve
no real purpose. In the present case it was provided via the doctrine of mutual
corroboration with the minimum number of complainers permitted. The trial judge's charge
could not compensate for the prejudice suffered. The Judges also took the view in their
response that where corroboration was removed, a simple majority would be insufficient to
ensure a fair trial.
Submissions for the Crown
[29]
It was speculative to assert that JB could have given evidence in 2017. Her
behavioural and functional ability, according to the joint minute, were noted to have
declined by mid to late 2017 onwards. It could not be said whether or not a Crown
section 259 application would have been necessary then. The trial judge's directions had
10
removed any prejudice to the appellant. Directions were given to the jury on how to treat
the hearsay evidence and to have regard to her age and health in assessing it. There was no
balancing direction as in Wilson (above) so the directions given were favourable to the
appellant. The inability to cross-examine JB was not necessarily prejudicial. It was
speculative to suggest that her responses would have been favourable. One complainer's
testimony could be corroborated by another's hearsay evidence (AS v HM Advocate 2020
SCCR 403).
[30]
The Crown accepted that JB's evidence was sole or decisive in relation to the charges
involving her, but that was not the case in relation to the charges involving NB. However,
there were counter-balancing features and procedural safeguards. Those referred to in Al-
Khawaja were available in Scotland. The appellant had the opportunity to lead witnesses to
challenge the credibility of JB. The trial judge retained the power to stop the trial at any
stage had he considered it was no longer fair (Beurskens v HM Advocate 2015 JC 91). The
application of mutual corroboration was significant (Al-Khawaja at paras 155-158). The trial
judge gave clear directions to the jury. There were protective factors in the circumstances
surrounding JB's statements. They were taken by an experienced police officer, the first was
signed as accurate and the second confirmed to be true and accurate over the telephone.
The police officer who took the statement was cross-examined. The appellant gave
evidence. The defence were able to draw the jury's attention to the dangers in JB's evidence
and had the opportunity to highlight discrepancies in it and between it and the evidence of
NB.
[31]
In assessing the overall fairness of the trial a number of further factors should be
taken into account. It was in the public interest to prosecute serious crime. Both
complainers were vulnerable. The Crown case had to meet the corroboration requirement
11
and, had it failed to do so, the trial judge would have upheld a submission of no case to
answer.
Analysis and decision
[32]
It is not suggested, as we understand counsel's submissions, that there was any
particular urgency about this case until the Crown became aware of JB's diagnosis of
Alzheimer's. It would appear that that would have been no later than May 2017. Counsel
suggested that the Crown should thereafter have moved more quickly but was
understandably unable to say exactly how much more quickly or whether in fact it would
have made any difference to the capacity of JB to give evidence. The joint minute tells us
that by mid to late 2017 onwards JB's behaviour and functional ability were noted to have
declined. This was more or less the same period when the Crown were aware of her
diagnosis. At that time the Spanish proceedings were ongoing, there being no final decision
until January 2018. It was not until August 2018 that the Crown received a medical report
confirming that JB did not have the capacity to be precognosced but there is no way of
knowing precisely when that stage was reached. For all we know she may have been unfit
to give evidence even if the Crown had proceeded with the maximum expedition.
[33]
In any case it is no doubt possible to construct a theoretical argument that the Crown
could have proceeded more quickly. However, it is entirely speculative to suggest that any
delay on their part led to the inability of JB to give evidence in the normal way.
Furthermore, it cannot be said that the Crown acted unreasonably, given the existence of the
Spanish proceedings which might have affected the decision as to whether to prosecute in
Scotland or not. Factored into this, is the question whether the appellant would have
12
returned to Scotland to be placed on petition. As it is, a European Arrest Warrant had to be
issued followed by an extradition process.
[34]
There are too many imponderables for it to be asserted with confidence that anything
done or not done by the Crown contributed to the complainer's incapacity to testify at the
trial.
[35]
Even had we been persuaded otherwise, that would not have been the end of the
story so far as this appeal is concerned. The question ultimately is whether the trial was
unfair.
[36]
Whatever may be thought to have been the position following Nulty, it is now well
established that the fact that important, even decisive evidence in a case is led using the
provisions of section 259 does not of itself render a trial unfair. The Crown conceded that
the evidence of JB was decisive and, assuming that concession to be correct, the issue for us
is whether there were sufficient safeguards and counter-balancing factors.
[37]
In this case evidence was available of JB's deteriorating faculties at the time she gave
her statements. There were discrepancies between her evidence and that given by NB. The
appellant gave evidence on his own behalf in which he denied all the allegations. The
availability of corroborative evidence was a considerable safeguard. The statement of JB had
been taken by a police officer in a relatively formal way in the first instance at least, and that
police officer was available to be cross-examined. The trial judge had given robust
directions on the need to exercise caution dealing with hearsay evidence and if anything
these directions had been unduly favourable to the appellant. The appellant's counsel had
been able to address the jury and point out the difficulties with JB's evidence as well as that
of NB.
13
[38]
It is impossible to distinguish this case in any material respect from AS v
HM Advocate 2020 SCCR 403 which, from paragraph 16 onwards, considered the fairness of
the trial in circumstances akin to those in this case.
[39]
Counsel's submissions about the Judges' responses to the consultation paper on
abolition of the not proven verdict, while imaginative, were nothing to the point. As far as
corroboration is concerned, these responses were about corroboration in general. What
counts in this case was the corroboration which was in fact available. The discussion of the
simple majority was in the context of there being only two verdicts, which is not the case, at
least at the moment.
[40]
The use of remote juries was an established feature of the criminal justice system at
the time of the trial and built upon the court's experience of witnesses, particularly
complainers in sexual cases, giving evidence remotely. The suggestion that this impacted on
the jury's ability to assess the evidence of NB is nothing more than an unvouched assertion.
In any event it has no bearing on the issue in this case, which is the use of the statements of
JB, whose demeanour, ex hypothesi, the jury were unable to assess.
[41]
The fact that expert evidence about childhood memory and false memory was
disallowed is of no consequence. The same is true of the evidence which was led in terms of
the docket.
[42]
While there is room for discussion as to whether there are features of other legal
systems which might with advantage be imported into ours, that does not assist in
determining whether the safeguards employed in our system are sufficient to prevent
unfairness.
[43]
For the reasons given above we are satisfied that, at least in this case, they were.
14
[44]
The appeal is, accordingly, refused.
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