NOTE OF APPEAL BY NATHAN McKENZIE AGAINST HMA [2024] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2024] HCJAC 6

HCA/2023/67/XC

Lord Justice General

Lord Pentland

Lady Wise

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

NOTE OF APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE

(SCOTLAND) ACT 1995

NATHAN McKENZIE

Appellant

against

HIS MAJESTY'S ADVOCATE

Respondent

Appellant: Brannigan; Faculty Appeals Unit (for The Robert Kerr Partnership, Paisley)

Respondent: J Keenan KC (sol adv) AD; the Crown Agent

11 May 2023

Introduction

[1]

This appeal concerns whether it is competent to libel in a sheriff court indictment,

charging an offence of abusive behaviour under section 1 of the Domestic Abuse (Scotland)

Act 2018, facts which might constitute rape. There are related issues about the right to a fair

trial under Article 6 of the European Convention and of oppression at common law.

Background

[2]

The appellant has been charged with a breach of section 1 of the Domestic Abuse

(Scotland) Act 2018. The libel refers to various occasions, between November 2021 and

February 2022, during which the appellant is said to have engaged in a course of behaviour

which was abusive of his partner or ex-partner. Sundry assaults and other violent

behaviour are libelled. Included within the narrative is an allegation that the appellant did

"penetrate her vagina with his penis without her consent".

[3]

The appellant raised three objections to the libel. The first is that the reference to

penetration of the vagina without consent was effectively a charge of rape, under section 1

of the Sexual Offences (Scotland) Act 2009. This could only be tried in the High Court

(Criminal Procedure (Scotland) Act 1995, s 3(6)). Libelling it in a sheriff court indictment

was therefore incompetent. Secondly, the libelling of rape within a domestic abuse charge

would be confusing to a jury. It breached Article 6 in failing to give fair notice to the

appellant of the charge against him. Thirdly, the libel was oppressive for the same reasons.

No direction to the jury could cure the prejudice arising from the confusion which would be

created.

[4]

The sheriff repelled the objections, primarily on the basis of the reasoning in DF v

Her Majesty's Advocate, unreported, Lord Matthews, 10 August 2021. The appellant

appealed.

Submissions

[5]

The submissions of the appellant followed broadly those which had been presented

to the sheriff. On competency, it was maintained that reliance on the terms of section 3(6) of

the 1995 Act was misplaced. Those drafting that section would not have anticipated the

Crown bringing a charge of rape using a different nomen crimenis. The description of the

offence as a charge of anything other than rape was a misnomer. Although the 2018 Act

included sexual violence in the definition of abusive behaviour, the crime libelled must be

triable in the particular forum. DF v HM Advocate was distinguishable as it involved

proceedings in the High Court.

[6]

In relation to Article 6, the contention was that the inclusion of the libel of rape in the

DASA charge rendered it incompetent for a trial in the sheriff court. The charge did not

give the appellant fair notice of the nature and substance of the charge against him. There

was a real risk that a sheriff court jury would suffer confusion on hearing the libel being

read out. Although a jury would understand that the appellant had been accused of rape,

they would be told that what was libelled constituted a different crime. No direction would

be sufficient to cure this. The allegation of rape was an uncorroborated one. There was

insufficient nexus between the various instances of abuse and the specific allegation of rape

to enable the jury to consider whether there was a "course of conduct". Oppression was also

made out in that there was a risk of grave prejudice, such that no direction could remove it.

This plea stood or fell with the Article 6 contention.

[7]

The Crown attempted to explain why this case had been indicted in the sheriff court.

This related to sporadic engagement with the complainer. Although there had been a

prospect of indicting the case in the High Court, using mutual corroboration, that prospect

had faded. The issue of whether it was competent to libel behaviour, which could also

constitute rape, was determined in DF v HM Advocate (at para [28]). This had been

approved in CA v HM Advocate 2023 JC 8. The course of behaviour was the core of the

offence and that was what required to be proved by corroborated evidence. Proof of such

behaviour on at least two occasions was needed for a course of conduct. That required to be

established by corroborated evidence. If that was achieved, other incidents forming part of

the course of conduct could be held proved, although only spoken to by one witness. Notice

of the facts which the Crown intended to prove was sufficiently specified in the averments

in the libel. Notice of the evidence was given in the lists of witnesses, productions and

labels, together with the disclosed statements (HM Advocate v Loughlin 2023 SCCR 21 at para

[8]). Whether there was sufficient nexus between the different elements of the libel was a

matter to be determined by the trial judge, who would give appropriate directions (DF v

HM Advocate at para [39]). On the basis of the complainer's description of the various

instances of behaviour, there was ample evidence of a continuing course of conduct which

was characterised by domestic abuse causing physical and psychological harm. The plea of

oppression fell on the same basis as that relating to Article 6.

Decision

[8]

In DF v HM Advocate, unreported, 10 August 2021, Lord Matthews explained (at

para [28]) that section 1 of the Domestic Abuse (Scotland) Act 2018 extended to sexual

behaviour. There was nothing incompetent in libelling what could also be charged as rape

within a charge under that section. There was nothing incompetent in an indictment with

such a libel. That being so, there is no requirement that the case be tried in the High Court.

Section 3(6) of the Criminal Procedure (Scotland) Act 1995 does not exclude the jurisdiction

of the sheriff court in a case such as the present.

[9]

There is no breach of Article 6 of the European Convention in terms of fair notice.

The libel is entirely clear. The Crown set out a number of incidents involving what is said to

be abusive behaviour, including sexual violence. Fair notice is given in terms of the

indictment itself, together with the lists of witnesses and productions and no doubt

supplemented by the disclosure regime. The nature of the evidence required to prove the

charge has been set out in CA v HM Advocate 2023 JC 8, in which it was explained, adopting

the language of DF v HM Advocate, that the offence under section 1 was committed by

engaging in a course of behaviour. It would be sufficient to prove two incidents of the

course of behaviour. That would entitle the jury to convict of the remainder, albeit

uncorroborated, aspects, if they were part of the same course of conduct (CA v HM Advocate,

LJC (Dorrian) at para [13], adopting DF v HMA at para [31] and citing Finlay v HM Advocate

2020 SCCR 317 at para [14]). There is no difficulty in directing a jury accordingly. There is

no reason to suppose that the jury would be confused by the terms of the indictment.

Equally, for the same reason, there is no question of any oppression arising.

[10]

The appeal is accordingly refused.

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