APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Menzies Lord Philip	[2012] HCJAC 122 Appeal No: XC32/12 OPINION OF THE COURT delivered by the LORD JUSTICE GENERAL In the Reference by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of MARK CHAMBERLAIN-DAVIDSON Appellant; _______

For the appellant: Miss S M McCall; John McRitchie & Co, Peterhead

For the Crown: McSporran AD; Crown Agent

15 August 2012

Introduction

[1] On 25 April 2012 we refused the Crown's motion to reject this Reference. We continued the case for consideration of the appellant's motion to lodge additional grounds of appeal in terms of section 194D(4B) of the Criminal Procedure (Scotland) Act 1995. The background to the case and the proposed additional grounds of appeal are described in the Opinion of the Court of that date ([2012] HCJAC 120). We have now heard counsel on the motion.

Proposed additional grounds of appeal
The corroboration ground

[2] The Commission refused to refer the question whether a fact libelled by way of aggravation of a charge should require to be proved by corroborated evidence. The Commission took the view that the point was settled. In our opinion, that was a reasonable exercise by the Commission of its discretion. Our discretion is wider. We consider that the appellant should be allowed to advance the submission that if the law is settled to the effect described by the Commission, this court should reconsider it and should hold that the element of intent to rape in a case of this kind should have to be proved by corroborated evidence.

The Cadder ground

[3] This ground raises the question whether, in consequence of the decision in Cadder v HM Adv (2011SC (UKSC) 13), a point that was open to an appellant on 27 October 2010, the day after that decision, should also be available to an appellant whose conviction had become final on or before 25 October 2010.

[4] The resolution of this question lies squarely within the jurisdiction of this court. In our view, it is in the interests of justice that this ground should be received and argued. The obiter dicta of Lord Hope and Lord Rodger on this point in Cadder, and the decision of the Irish Supreme Court in A v Governor of Arbour Hill Prison ([2006] 4 IR 88) will be of immediate relevance to the court's decision.

Disposal

[4] We shall allow both of the proposed additional grounds of appeal to be received. A procedural hearing in this case can be fixed in due course.