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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 42
HCA/2022/296/XC
Lord Justice General
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL UNDER SECTIONS 107B AND 110(1)(e) OF THE
CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
HER MAJESTY'S ADVOCATE
Appellant
against
BRIAN JOHN LOUGHLIN
Respondent
Appellant: Edwards QC AD; the Crown Agent
Respondent: Graham QC, Morgan; Westcourts
21 July 2022
Introduction
[1]
The respondent faces a number of charges involving different ex-partners as
complainers. These include three assaults on, and/or rapes of, MM on three occasions
between August and September 2017. In order to provide corroboration of these offences,
the appellant has included the following in a docket:
2
"on various occasions between ... 1998 and ... 2001, ... at ... Oxford and ...
Littlemore, you ... did penetrate the vagina and anus of [NA], your partner, ... with
your penis, and, whilst having consensual sexual intercourse wearing a condom, you
did remove [the] condom and continue to have sexual intercourse with her without
her consent".
[2]
The appellant's intention, when framing the docket, was to provide a basis for
leading evidence from NA along the lines of her police statement, which had been disclosed
to the defence. This was to the effect that she had been subjected to several vaginal and anal
rapes by the respondent over the period in the docket. These included: intercourse in a
hospital room, where NA was recovering from an assault by the respondent; other incidents
at the complainer's mother's flat; and a single occasion when, after NA had consented to
intercourse with a condom, the respondent had removed the condom and continued
without her consent.
[3]
When NA was about to be asked about the events which were referred to in her
statement, other than the removal of the condom incident, the respondent objected that the
only libel of non-consensual sexual activity concerned the continuation of sexual intercourse
after the removal of a condom. There had been no application under section 275 of the 1995
Act to lead evidence of consensual acts. The Advocate depute submitted that the terms of
the docket were sufficient to cover all the non -consensual behaviour which had been set out
in NA's police statement. There was no lack of fair notice because the statement had been
disclosed.
[4]
The objection was sustained. The trial judge reasoned that all non-consensual acts
required to be specified either in the indictment or a docket. In terms of the docket, the only
non-consensual episode which could be proved was one involving the removal of a condom.
It had been obvious to the Crown that NA was in a position to speak to the events which
3
were described in her police statement. The judge was at a loss to understand why the
docket had not been drafted in a manner which made it clear that the Crown intended to
prove all of these events. The Crown had failed to give fair notice of what they intended to
prove. The purpose of the libel, including the docket, was to provide fair notice of the
evidence to be led (Lauchlan & O'Neill v HM Advocate 2015 JC 75 at paras [27] and [29]). It
was not the disclosure of NA's statement which notified an accused of what evidence was to
be led.
[5]
After the objection had been sustained, the Advocate depute moved to amend the
indictment to add the word "all" before the words "without her consent". This was
opposed and refused on the basis it would change the character of the offence.
[6]
The appellant submitted that the trial judge erred in sustaining the objection. The
docket required to be interpreted against the background of the disclosed police statement.
It had been clear that the testimony of NA was intended to cover several incidents of non-
consensual vaginal and anal penetration. In her statement, the complainer had only given
one example of penetration after the removal of the condom. The docket specified that non-
consensual sexual activity had occurred on various occasions, at several locations, over an
extended period of time. Fair notice of the evidence sought to be elicited from NA had been
provided. It was not said that any prejudice would occur if the appellant's interpretation
were correct. If required, the docket ought to be amended to make clear that all the conduct
referred to in the docket was non-consensual, although the appeal was taken against the
decision to sustain the objection rather than the refusal of the amendment.
[7]
The respondent reiterated his position at first instance. The Crown had deliberately
libelled the events to be proved in a particular way in the docket. That libel would have
been reviewed by qualified legal staff on at least five occasions. It was the libel which
4
provided fair notice. It could not be said that the trial judge had erred in his decision to
sustain the objection and to refuse to allow the amendment.
[8]
A core feature of criminal procedure is the need to provide an accused with fair
notice of the charges against him and the evidence which the Crown seek to adduce in order
to prove the crime or crimes charged. The charge must be set out in the indictment, with the
degree of specification described in the relevant provisions of the Criminal Procedure
(Scotland) Act 1995 (s 64(2) and schedule 2). Notice of the evidence to be led is traditionally
provided by the lists of witnesses, labels and productions (ibid ss 66(4)). It may well be that
an accused will be able to gather further information about the nature and extent of that
evidence from the disclosure regime (Criminal Justice and Licensing (Scotland) Act 2010,
s 117(2) and 118(2)), but the intention of that regime is to provide details of all the
information that may be relevant to the case; not to indicate what facts the Crown intend to
prove, nor with what evidence.
[9]
Although there is no requirement for the Crown to provide a narrative of the
evidence which they intend to lead, it is not generally permissible to lead evidence intended
to prove that the accused has committed a crime which is not libelled and of which, by
reason of that omission, the accused has had no fair notice (Nelson v HM Advocate 1994 JC 94,
LJG (Hope), delivering the opinion of the Full Bench, at 100). Errors can occur in the
drafting of charges. Amendment is permissible (1995 Act, s 96(2)) to cure any error, or to
meet any objection to the libel or to remedy any discrepancy between the indictment and the
evidence, provided that the amendment does not change the character of the offence (ibid s
96(3)). Where the narrative in the libel is incomplete or otherwise defective, amendment
may be allowed. The purpose of allowing an amendment is to ensure that the ends of justice
are not defeated by any discrepancy or variance between the libel and the evidence (ibid
5
s 96(1)); that is to say, the test of whether to allow an amendment is whether it is in the
interests of justice to do so. That involves not only consideration of any material prejudice
to an accused, and the degree to which the Crown may have been at fault, but also the
interests of a complainer, and the wider public, in seeing that justice is done, and seen to be
done, in the particular case.
[10]
In cases in which the Crown seek to rely on mutual corroboration, but cannot libel
the corroborating material in the form of a charge, they may wish to give the accused fair
notice of their intention to lead the relevant evidence by the use of a docket (1995 Act,
s 288BA). The docket forms part of the indictment (ibid). It may be amended in a manner
which mirrors the provisions in relation to the charge itself. The test will remain what is in
the interests of justice.
[11]
Had the court been considering the meaning of the libel in the docket, it would have
concluded, as the trial judge did, that it failed to give fair notice that the Crown intended to
lead evidence of a series of rapes other than those involving continuing sexual intercourse
after the removal of a condom (an activity referred to by the parties as "stealthing"). The
fact that the defence were aware that NA could give evidence of the other rapes is not
strictly relevant to the issue of fair notice since it depends on the terms of the libel and
cannot be provided by material outside the four corners of the libel, such as police
statements. The libel is determinative of whether fair notice has been given. If the Crown
do not libel crimes, which they might be able to prove or about which they intend to lead
evidence, that is, subject to the power of amendment, an end of the matter. These principles
apply just as much to dockets as they do to the substantive charges.
[12]
In the present case, and despite the Crown's protestations to the contrary, the libel in
the docket is defective in that it does not cover, and thus give fair notice of, the testimony
6
which the Crown seek to adduce relative to the non-consensual sexual activity involving
NA, other than any "stealthing" episodes. That material cannot be adduced unless the libel
in the docket is amended. If it is not amended, what are very serious substantive charges,
which involve the complainer MM, will not be capable of proof. It is not suggested that the
respondent will suffer any prejudice, beyond that consequence. It is on that basis that the
court considers that the trial judge erred. It is in the interests of justice that the amendment
should be allowed. The trial judge ought, although he was not initially asked to do so, to
have allowed amendment and consequently repelled the objection.
[13]
The court will accordingly: allow the appeal; allow the docket to be amended by
inserting the word "all" between "with her" and "without her consent", thus making it clear
that NA's testimony of the various rapes referred to in her police statement is competent and
admissible; and repel the objection to that testimony. That having been done, the case will be
remitted to the trial judge to proceed as accords.
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