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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 15
HCA/2022/283/XC
Lord Justice General
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL
under section 74(1) of the Criminal Procedure (Scotland) Act 1995
by
EDWARD DORAN
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Renucci QC, C Hiller; Robert Kerr Partnership (Paisley)
Respondent: Edwards QC AD; the Crown Agent
25 August 2022
[1]
Section 275B of the Criminal Procedure (Scotland) Act 1995, prohibits a judge from
considering a late application to raise matters excluded by section 274 (the rape shield
provisions) "unless on special cause shown". This appeal concerns what is meant by "special
cause" in this context.
2
[2]
The appellant was indicted to a preliminary hearing (PH) on 4 July 2022. He is
charged, first, with administering a substance to the complainer for the purpose of
stupefying or overpowering her to enable him to engage in sexual activity, contrary to
section 11 of the Sexual Offences (Scotland) Act 2009. Secondly, he is charged with assault
and rape, contrary to sections 1 and 2 of the Act. The libel is that these offences occurred
whilst the complainer was asleep, intoxicated with drugs and incapable of giving or
withholding consent.
[3]
On 1 July, the appellant lodged an application under section 275 of the 1995 Act.
This should have been lodged "seven clear days" prior to the PH (ibid s 275B). The
application sought permission to lead evidence that:
"during the incident ... the applicant performed oral sex on [the complainer], at her
request".
This evidence was said to have a bearing on the complainer's credibility and reliability; it
being the appellant's position that she had voluntarily consumed the drugs, was awake
throughout the incident and was capable of consenting to sexual activity. It was
immediately after the sexual intercourse, which forms the basis of the rape charge, that the
oral sex had taken place.
[4]
At the PH, the judge refused to consider the section 275 application, coming as it did
less than seven clear days in advance of that PH. It was accepted during the hearing on the
appeal that, contrary to the practice before the implementation of the Bonomy Reforms
(Criminal Procedure (Amendment) (Scotland) Act 2004), it was the responsibility of defence
counsel, rather than agent, both to draft and to lodge any defence statement or section 275
application.
3
[5]
The "special cause" said to justify consideration of the application was that counsel
had made a mistake about dates. This was because of pressure of business; that is the
number of trials for which she had accepted instructions in the wake of the Covid pandemic.
Counsel had, on the advice of the appellant's agent, diarised the PH for 8 July instead of the
diet four days earlier. As the PH judge comments, that would have still have made the
application late. It was only when counsel received the papers on 4 July that the error was
discovered.
[6]
The PH judge did not hear the Advocate depute on the application. She did not
consider that a mistake about the date constituted special cause. The difficulties experienced
by counsel in dealing with the pandemic backlog was not special cause either. The refusal of
the section 275 application would not prevent the appellant from putting forward a defence
of consent, which the judge allowed to be lodged late. The judge accepted that the
section 275 evidence, had it been led, might be relevant to show the complainer's state of
consciousness and sobriety.
[7]
A trial diet was fixed for 13 March 2023.
[8]
The appellant submitted that the PH judge erred in holding that an administrative
error made by counsel, who, like others practising at the criminal bar, was under pressure to
deal with the volume of the backlog of cases, did not amount to special cause. The PH judge
ought to have had regard to the purpose of the time limit in section 275B, notably the
avoidance of ambushes, the prevention of disruption to the proceedings and the desirability
of avoiding complainers being advised of likely lines of evidence at a late stage (HM
Advocate v G(J) [2019] HCJ 71 at paras [26]-[28]). Following upon intimation of the
application, the Crown had been unable to contact the complainer. However, there was
ample time to do so in advance of the trial. The PH judge had failed to take into account the
4
Crown's lack of opposition and the prejudice which would ensue to the appellant were the
application to be refused (Darbazi v HM Advocate 2021 JC 158 at para [27]).
[9]
The Crown did not oppose either the appeal or the application. The advocate depute
submitted that the correct approach was to determine where the interests of justice lay
(Murphy v HM Advocate 2013 JC 60 at para [33]; Darbazi v HM Advocate at paras [20] and
[21]). The use of "special cause" rather than "cause" reflected the need not to disrupt
proceedings and to avoid the late raising of issues (HM Advocate v G(J)). The Crown had
now obtained the complainer's views. Her position was that she did not consent, was not
awake at the time, and had no memory of the incident.
[10]
The 1995 Act envisages that, in solemn cases before the High Court, the indictment
will cite the accused to a PH. In non-custodial cases, the PH must occur within 11 months of
the accused's first appearance on petition (1995 Act, s 65(1)). At the PH, a trial diet ought to
be fixed within 30 days or thereby (ibid). Although the latter time limit has, for good
reasons, rarely been complied with in recent years, it still sets the context in which there is a
requirement upon an accused person to lodge documents, including any section 275
application, at differing periods in advance of the PH. The reason for the seven clear day
period in respect of section 275 applications is to enable the Crown to make enquiries about
the complainer's position in relation to what is alleged (RR, Petnr 2021 JC 167, (LJG
(Carloway), delivering the opinion of the Full Bench, at para [47])). It enables the Crown:
(a) to carry out any investigations which might be required to counter any allegation; and
(b) to give the complainer up to date information about what she likely to be asked at trial.
[11]
It is important, as a generality, that applications comply with the time limits in
section 275B . The PH, and occasionally the trial, judges are responsible for ensuring that
compliance. The use of the words "special cause" is a familiar one. It does not mean that
5
there has to be an enhanced level of "cause". It means that the cause must be particular to
the case, not one which applies in all, or most cases (see eg under other legislation: Towers v
Flaws 2020 SC 209, LJC (Carloway), delivering the opinion of the court, at para [26] and
citing King v Patterson 1971 SLT (notes) 40; Heasman v JM Taylor & Partners 2002 SC 326, Lord
Coulsfield at para [4], Lord Johnston at para [6]). The existence of pressure of business,
whether related to the backlog of cases as a result of the lockdown during the Covid
pandemic or otherwise, is not a speciality of this case.
[12]
Provided that a speciality exists, the search is simply for a "cause". The test is not
whether there is a reasonable excuse, or similar consideration, which explains why the
application is late, although that will often be a factor in the equation. Cause will be shown
if it is demonstrated that admitting the evidence is in the interests of justice (Darbazi v HM
Advocate 2021 JC 158, LJG (Carloway), delivering the opinion of the court, at para [20]). In
order to assess that, regard must be had to the merits of the application. The stronger the
merits, the more likely it is that the interests on justice will dictate that it should be granted.
In this context, the purpose of the time limit should be considered; that is the prevention of
disruption to the criminal process, the need to ascertain the complainer's attitude to the
evidence and the requirement to provide the complainer with advance notice of what she
might be asked at trial. The attitude of the Crown is a factor to which regard must be had,
although it is not determinative (RN v HM Advocate 2021 JC 132 (LJC (Lady Dorrian), at
para [20])). The date of the trial is an important consideration.
[13]
The speciality in this case was the error in identifying the correct date for the PH and
hence the due date for lodging the application. Cause is shown because it is in the interests
of justice to allow the appellant to introduce the evidence, which the PH judge correctly
regarded as relevant. There is no prejudice to either the Crown or the complainer. There
6
would have been no enquiries necessary beyond that involving the complainer. The
evidence relates only to a specific occurrence of sexual behaviour and that occurrence is
relevant to whether the appellant is guilty of the offence charged. The probative value of
this evidence is significant. It will outweigh any risk of prejudice to the proper
administration of justice, including the protection of the complainer's dignity and privacy.
The evidence concerns activity at the time of the alleged rape. Disabling the appellant from
giving evidence about what happened during the course of the crime alleged would place
him in a difficult position so far as presenting his defence is concerned. The court does not
consider that allowing this evidence would deflect the jury's attention from the main issues
to be resolved at trial.
[14]
For these reasons the court will allow the appeal. It will allow the section 275
application to be received late; special cause having been shown. It will grant the
application for the reasons given above.
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