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29 March, 2021

Petition to the nobile officium by RR v HM Advocate and LV [2021] HCJAC 21

Full bench of High Court of Justiciary determined that a nobile officium petition made by a complainer in a rape case after she was not notified of an application by the accused to lead evidence of their sexual history is competent under the doctrine.

The petitioner, RR, is the complainer in criminal proceedings in which the second respondent is charged with, inter alia, raping her. 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 precognose her. An intervention in the case was made by Rape Crisis Scotland.

The petitioner 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. The petition raises an important issue of principle in relation to a complainer’s right to participate in criminal proceedings. The court convened a Full Bench to consider it

The court concluded that 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.

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.

The upshot of this is that, quite apart from section 1(3)(d) of the 2014 Act, in 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.

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.

Ampersand’s Dorothy Bain QC, with ArnotManderson’s Paul Harvey, instructed by Livingstone Brown represented the Petitioner.

The full Opinion of the court can be viewed here.

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