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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 41
HCA/2022/000172/XC
Lord Woolman
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
CROWN APPEAL UNDER SECTION 74
by
HER MAJESTY'S ADVOCATE
Appellant
against
RS
Respondent
Appellant: Kennedy; John Pryde & Co
Respondent: Prentice QC solicitor advocate ; Crown Agent
13 June 2022
Introduction
[1]
The respondent has been indicted in the Sheriff Court at Kirkcaldy on seven charges.
All of them arise out of his relationship with his former partner. Only charges 1 and 4 are
relevant to the present appeal.
[2]
Charge 1 libels a common law breach of the peace, which includes an allegation that
the respondent inserted his fingers into the complainer's vagina to check her genitals for
2
sexual activity. The conduct is said to have occurred on various occasions between
October 2003 and October 2010. Charge 4 contains similar allegations relating to the period
from October 2010 until February 2020. These are libelled as a contravention of section 38(1)
of the Criminal Justice and Licensing (Scotland) Act 2010, including an allegation that the
respondent on various occasions demanded that the complainer have sex with him and
uttered abusive remarks if she refused.
[3]
A docket appended to the indictment gives notice that the Crown intends to lead
evidence that on various occasions between December 1999 and August 2019 the respondent
penetrated the complainer's vagina with his penis without her consent. The aspect of digital
penetration was added to both charges by amendment at a continued first diet on 22 April
2022, the same diet at which the application giving rise to this appeal was finally dealt with .
The legislation
[4]
Section 288C(1) of the Criminal Procedure (Scotland) Act 1995 provides as follows:
"An accused charged with a sexual offence to which this section applies is prohibited
from conducting his case in person at, or for the purposes of, any relevant hearing in
the course of proceedings ... in respect of the offence."
A "relevant hearing" is one at, or for the purposes of, which a witness is to give evidence
(subsection (1A)).
[5]
Subsection (2) sets out a list of the sexual offences to which the section applies. It
includes indecent assault and offences under sections 2 and 3 of the Sexual Offences
(Scotland) Act 2009 (sexual assault by penetration and sexual assault, respectively).
[6]
Subsections (3) and (4) are in the following terms:
"(3)
This section applies also to an offence in respect of which a court having
jurisdiction to try that offence has made an order under subsection (4) below.
3
(4)
Where, in the case of any offence, other than one set out in subsection (2)
above, that court is satisfied that there appears to be such a substantial sexual
element in the alleged commission of the offence that it ought to be treated,
for the purposes of this section, in the same way as an offence set out in that
subsection, the court shall, either on the application of the prosecutor or ex
proprio motu make an order under this subsection."
Section 288D makes provision for the appointment by the court of legal representation
where the accused does not have a solicitor.
The Crown application
[7]
The Crown sought a section 288C(4) order from the sheriff prohibiting the
respondent from conducting his own defence should he at any stage dispense with legal
representation. In support of the application the Procurator Fiscal depute provided a
narrative of the evidence which it anticipated the complainer will give at trial. This includes
allegations of non-consensual penetration of her vagina with his penis, per the docket, and
digital penetration to check her genitals for sexual activity, as libelled in charges 1 and 4.
The Crown contended that there was a substantial sexual element to these charges. The
defence submitted that "substantial" meant something that can subsist by itself and to a real
extent. The respondent's sexual demands of the complainer, fell within the general coercive
and controlling behaviour libelled. The digital penetration was not sexual, standing the
respondent's motivation and the absence of any sexual gratification.
The sheriff's decision
[8]
The sheriff refused to make an order for the following reasons. There was no
indication that the respondent intended to conduct his own defence. His sexual demands,
while "not insignificant", were not a substantial element of charge 4. The digital penetration
4
was not of a sexual nature. The complainer was not expected to say the respondent did that
as a precursor to sex. It was not accompanied by any words, actions or gestures of a sexual
nature. It was more in keeping with a medical examination, however perverse that might
sound. It formed part of the respondent's coercive and controlling behaviour but it was not
sexual. In the sheriff's experience of other cases this was a common feature of controlling
men, which the Crown had in the past agreed did not amount to sexual activity. There was
no basis for distinguishing the respondent's case.
Analysis
[9]
A court is not precluded from making a section 288C order merely because an
accused person is at present represented and in making the application the Crown took a
pragmatic approach in seeking to ensure that the trial would not be interrupted. There is the
further consideration that one important consequence of an order made under section 288C
is that a complainer enjoys the protection against questioning as to sexual history provided
by section 274 of the 1995 Act.
[10]
Had charge 1 specifically libelled indecent assault and charge 4 libelled a
contravention of section 2 or section 3 of the Sexual Offences (Scotland) Act 2009, this issue
would not have arisen. However, the fact that the digital penetration, if proved, would in all
probability, amount to an indecent assault or a contravention of section 2 or 3 of the
2009 Act, as the case may be, is significant. Such offences could have been proved against the
respondent irrespective of his motivation. (cf Grainger v HM Advocate 2006 JC 141 at p145,
paragraph graph [17] per Lord Justice Clerk (Gill)).
[11]
What is meant by "substantial" under section 288C(4)? The Crown contends that it
refers to the seriousness of the sexual conduct. The defence submits that it denotes the
5
threshold, meaning the extent to which the conduct can be said to be sexual in nature. It is
not necessary for this court to attempt a definition. An analogy may be drawn with the
notification provisions in section 80 of the Sexual Offences Act 2003. The court declined to
define "significant sexual aspect", save that it should be given its ordinary meaning in the
context of the aims of the legislation concerned (cf Hay v HM Advocate 2014 JC 19 at p30-31,
paragraph graph [52] and p27-28, paragraph graph [33] per Lord Justice Clerk (Gill)). We
adopt the same approach to "substantial sexual element" and we interpret it in the context of
Parliament's aims in enacting section 288C. The test is not whether the sexual element is a
substantial part of the charge but whether the charge contains a sexual element which is
itself substantial.
[12]
While there is a line of authority suggesting that the motivation for an offender's
paragraph [14]; Sutherland v HM Advocate 2017 JC 268 at p271, paragraph [19] and p276,
paragraph [32] per Lord Turnbull; McHugh v Harvie 2015 SCL 987, p989, paragraph [5]
and p990, paragraph [9] per the Lord Justice Clerk (Carloway)), all of those cases were
decided in the context of the notification requirements. Moreover, it is questionable whether
a sexual motivation is even a prerequisite in that context (cf W v HM Advocate 2013 SCL 253,
where there was no suggestion that the respondent had penetrated the complainer for the
purposes of sexual gratification). See also Ferguson v HM Advocate [2021] HCJAC 51. That
discussion is, however, for another day
[13]
There is a distinction to be drawn between the two lines of authority. Where the
notification requirements are in question, evidence will have been led at trial or a narrative
of the facts read following a guilty plea. At that stage it will be possible to determine
whether there was a significant sexual aspect to an offender's behaviour. As the Lord Justice
6
Clerk said at paragraph [40] of Hay: "Experience shows that often the evidence puts a
different complexion on the case from that which is shown in the Crown summary."
[14]
Section 288C(4) requires that there "appears to be a substantial sexual element" - a
less stringent test. This is logical since, while it is a significant step to deprive an accused of
the opportunity to defend himself if he chooses so to do, it does not have the far-reaching
consequences that attach to being made subject to the notification requirements as a sex
offender: see Hay at paragraph [35].
[15]
The background to section 288C was briefly discussed by this court in McCarthy v
HM Advocate 2008 SLT 1038. Following upon the raising of certain concerns about accused
persons cross examining their alleged victims in person, the Scottish Parliament enacted the
Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, which introduced
sections 288C and 288D into the 1995 Act. They were plainly conceived for the protection of
witnesses.
[16]
The question for us is this. Did the sheriff err in holding that there was not a
substantial sexual element in the alleged offences? There was some discussion as to the
effect of the material in the docket but the implications of it were not fully argued we prefer
not to express any opinion on it at this stage. Leaving aside that material, however, the
complainer is expected to give evidence of digital penetration of her vagina other than in the
course of consensual sexual activity and of the respondent having abused her when she
refused his sexual demands. Whether the section is interpreted in a purposive way or the
issue is approached through the lens of common sense, it admits of only one answer
[17]
Allowing the complainer to face the sort of intimate questioning envisaged is
precisely what the section is designed to prevent. Nonconsensual digital penetration on its
own is a substantial and serious sexual crime. It does not have to be accompanied by words
7
or actions of a sexual nature. What is libelled is a gross violation of the complainer's sexual
autonomy. An allegation of abusing someone because they would not give in to sexual
demands also contains a substantial sexual element.
[18]
Even if motivation were relevant, it is difficult to conceive how it could be taken into
account at the stage of considering a section 288C order, when the accused denies that he
committed the offences, but if his motivation for digital penetration was indeed to check
whether the complainer had engaged in sexual activity then that could not be anything other
than sexual.
[19]
For the foregoing reasons we are satisfied that the sheriff erred.
[20]
The Crown appeal is granted and we remit the case to the sheriff so that he can make
an order under section 288C and to proceed as accords
Postscript
[21]
This prosecution does not have a particularly long history but it has already taken up
an inordinate amount of court time.
[22]
The case called for a First Diet on 3 August 2021 and was adjourned until 31 August
2021 to allow counsel to be instructed and for consideration of the Crown's application. On
31 August the diet was adjourned until 14 September 2021 on defence motion. The partner
dealing with the case had been diagnosed with Covid-19 and the case had not been diarised
correctly. On 14 September the diet was further adjourned, this time until 12 October, to
allow counsel to consider any objections to the docket, although the respondent was
represented by a solicitor from Inverness, apparently from the firm who were the principal
agents. It is minuted that the defence conceded that due to the nature of the charges the
accused would not be in a position to conduct the trial without representation but the court
8
did not grant the application, nor for that matter refuse it at that stage. It seems to have been
left in limbo. On 12 October the court was told by a local agent that sanction had recently
been obtained for counsel and it is noted in the minutes that the application "is currently
irrelevant". The diet was adjourned yet again until 26 October "for the defence to obtain
further instructions and have consultations with their client". On 26 October a trial diet was
assigned for 25 April 2022 and a "pre-trial hearing" was assigned for 15 February for the
Crown to lodge an application under section 275. Nothing is said in the minute for
26 October about the application under section 288C (4). A local agent appeared again. On
15 February the same local agent appeared and the Procurator Fiscal depute said th at an
application under section 275 was not to be lodged at that stage but made a motion for an
order under section 288C(4). The local agent indicated that he did not have instructions in
relation to that matter and on Crown motion the diet was continued until 1 March for the
Crown motion to be considered, on the basis that if it were granted an application under
section 275 would be lodged. On 1 March, a different agent appeared and the motion was
renewed. Incredibly, the defence agent said that he was not instructed in relation to that
motion and a further hearing was fixed for 8 March. The sheriff then presiding highlighted
his concern about the situation and made it clear that the principal agents should either
instruct counsel, provide full instructions to local agents or appear themselves so that the
motion could be considered. On 8 March counsel appeared and advised that there had not
yet been full disclosure by the Crown and a Crown application under section 275, on which
she required to take instruction, had only been received the previous night. Certain
discussions were held about these matters and the minutes record that it was "advised until
an order has been granted by the court in terms of section 288C an application in terms of
section 275(1) could not be made". However, rather than dealing with the application for on
9
order under section 288C the court simply continued the diet until 22 March "to allow the
defence to take further instructions and to determine further procedure". The diet of
22 March was continued administratively until 29 March. On that date counsel advised the
sheriff, the sixth sheriff who had dealings with this case in court, that the Crown motion
under section 288C(4) would be opposed. The Crown moved to amend the indictment by
adding in certain words to the docket, as far as we can see. The minute then records that the
Crown were seeking an order in terms of section 288C(4), as if that was not already well
known, and "after discussions" it was "decided that this could be argued at a further
hearing". Such a hearing was fixed for 19 April and, when the case called on that date, the
local solicitor who had appeared on 12 and 26 October and 15 February appeared again and
said that neither the principal agents nor counsel was able to attend. No reasons for this
inability are minuted. Once again this local agent did not have instructions in relation to the
motion. The diet was adjourned until 22 April. During the submissions at that diet the
Crown sought leave, which was granted, to amend charges 1 and 4 by insertion of the
reference to digital penetration. Having heard from counsel the application under
section 288C(4) was refused, giving rise to this appeal. The trial diet was until 15 August
2022 to allow the appeal to be argued.
[23]
This is a sorry tale of mismanagement and ineptitude. It displays a lack of urgency
and a seeming inability or unwillingness to grapple with a straightforward question. It is
inexplicable to us, and neither the advocate depute nor counsel were able to assist us in this
regard, why the application was not granted on 14 September 2021 when the point was
conceded. Instead, the case has just been churned from diet to diet with nothing being
achieved. Even now at least one section 275 application is outstanding. As with Preliminary
Hearings, parties should treat First Diets as the end of their preparation, not the beginning
10
of it, if the system is to work as intended. Ideally, the court should be in a position to deal
with all applications when the case first calls. This case is an egregious example of what
happens when matters are not dealt with as they should be.
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