Criminal court: New year, familiar issues

Happy new year from s 275

It may sound – and feel – like Groundhog year, but now the festive season is behind us and we are back to work in some shape or form the main topic for consideration is, as is often the case, s 275 of the Criminal Procedure (Scotland) Act 1995 and the shield legislation devised many years ago to stop intrusive questioning into a complainer’s sex life.

What is different about XY v HM Advocate [2022] HCJAC 2 (12 January 2021, but published a year later on 19 January 2022) is that it contains a dissenting judgment. The accused was in his 70s when prosecuted and the indictment contained eight charges alleging various sexual offences against five children and young persons in the 1980s and 1990s over a period of 18 years when he was aged between 33 and 51.

The application involved two of those charges and one complainer, said to have occurred when she was between 13 and 15 years old. The charges involved lewd and libidinous practices contrary to s 5 of the Sexual Offences (Scotland) Act 1976, and rape when the complainer was aged 14 or 15.

The s 275 application sought permission to lead evidence that the accused was in a consensual relationship with the complainer in 1985 when she was 17. The preliminary hearing judge refused the application, taking the view that the evidence sought to be elicited was irrelevant at common law, so the statutory scheme under ss 274 and 275 was not engaged. He took the view that if the Crown could not prove the conduct took place between the dates libelled, the accused would be acquitted.

The defence argued that they would not be seeking to open up details of collateral matters but simply to put to the witness that what she spoke to happened at a later date consensually when she was not a child. It was argued that this evidence was verifiable; the Crown replied that the line was disputed and would draw the case into a collateral argument.

Lords Pentland and Turnbull held that to admit the proposed line of defence, there would be a serious risk that the attention of the jury would be deflected from the real issue on to the contentious issue of what happened or did not happen when the complainer was 17. The evidence sought was irrelevant in that it told nothing about whether the complainer was abused as libelled. The accused would be able to give evidence that the conduct libelled did not occur, but he could not divert the focus to whether there was a consensual relationship between the parties some years later.

Lord Malcolm dissented and expressed his concerns by positing the hypothetical example of where a complainer said she was sexually abused in 1983 when a child, and the defence line was that the conduct was consensual and occurred in 1984 when the complainer was 16. He also drew support from the concession by the Crown in argument that although charge 2 was libelled as rape, it was likely that it would be seeking an alternative verdict of unlawful intercourse with a child. He saw the argument as about the date of the incidents only and doubted if the Crown response was an accurate view of the law.

Dissenting judgments should always be borne in mind going forward, but this is no more than a footnote. In the event, the accused was found guilty by a majority on charges 1 and 2 and was convicted of five of the six other charges. He was sentenced to eight years’ imprisonment. It is doubtful that even if the application had been successful it would have made any difference to the outcome, given the number of complainers and the significant age difference between the accused and his victims.

Time limits in these COVID times

It is understood that the COVID case backlog will be overcome by 2026. That aspiration must be borne in mind when reading HM Advocate v Graham [2022] HCJAC 1 (17 September 2021; published 6 January 2022).

The respondent had appeared on petition on 1 October 2019 when he was granted bail. The 12-month time limit was extended by six months under the Coronavirus (Scotland) Act 2020 to 1 April 2021. He was cited to a first diet in September 2020 on two charges alleging sexual offences occurring in 2011 and either 2016 or 2017. One of the two complainers had been eight at the material time.

For COVID-related reasons the first diet was postponed on three occasions until March 2021, when trial was fixed for 20 July and the time limit extended until 23 July. It was one of two priority trials in a four-day sheriff and jury sitting following a Monday public holiday. Three other trials including a multiple accused case were set down for this sitting. On the first day of the sitting, the older complainer failed to appear and the case could not call for trial as she was an essential witness, the matter proceeding on a Moorov basis. The Crown decided to proceed with the other priority trial, one of serious domestic assault. Late in the afternoon of Friday 23 July, the Crown moved to adjourn the respondent’s trial until 6 September and to extend the 12-month time limit until 10 September.

The sheriff was given a convoluted history of the citation of the missing witness and gained the impression that the depute fiscal had not been aware that the respondent’s trial was a priority one for the sitting. He could not produce an execution of citation but had information that the complainer was a hostile witness and would not attend. The sheriff was concerned that the fiscal did not understand the two-stage test set out in HM Advocate v Swift 1984 SCCR 216 and Early v HM Advocate 2007 SCCR 50. He was not satisfied that the Crown had shown a reason sufficient to justify an extension of time and considered that the failure to commence the trial timeously had been the fault of the Crown.

Had the sheriff proceeded to the second stage he would have exercised his discretion to refuse an extension, having regard not only to the serious nature of the charges but to the consideration that the accused should not be deprived of an important right under the prevention of delay regime.

At the appeal hearing, a fuller explanation was offered that postal citation of the witness had not been effective. A request for personal service should have been actioned by the police and returned to the fiscal by 5 July, but last-minute efforts by the police around that date had been unsuccessful as the witness had moved address. She was cited on 16 July but indicated she did not intend to attend the trial as she was fearful of “repercussions”. The execution of service was not sent to the fiscal with this explanation. The Victim Information & Advice department had tried to keep the complainer up to date with progress in the case by letter on six occasions. While she had failed to attend for precognition, she had told police in July 2020 she was continuing to cooperate with the prosecution. Insufficient weight had been given to the serious nature of the charges and the extension sought was a moderate one. Much of the delay had been attributable to the COVID-19 pandemic.

The Appeal Court referred to Uruk v HM Advocate 2014 SCCR 369 at paras 10 et seq, which noted that earlier cases predated court reorganisation which placed the fixing of trial diets in the hands of the court itself. It also noted that the execution of a warrant to arrest a complainer in a sexual offences case should not be regarded as a satisfactory solution. Problems could have been avoided if the Crown had sought to take the witness’s evidence on commission.

The position in this case can be contrasted with those I have seen where the “complainer” has never cooperated with the police or provided a statement and refused medical treatment at the outset. Furthermore, in the present case the absence of the complainer had implications for another complainer and not just herself.

The case proceeded to trial in December 2021, but after three days of evidence the accused was acquitted following a submission of “no case to answer”. We are beginning to appreciate the effect of trauma on parties caused by COVID delays and in other cases witness attrition. Taking evidence on commission at an early stage of the proceedings has much to commend it.

A sad and unsatisfactory outcome

It is worth mentioning in passing the murder in May 2002 of Louise Tiffney, who was last seen at her home in Edinburgh. Her son, known as Sean Flynn, stood trial in March 2005 at Perth High Court but was acquitted. The case was based on circumstantial evidence that inquiries failed to show any trace of Ms Tiffney being alive after 27 May 2002, as crucially the victim’s body had not been recovered at that time. So called “body-less” murder cases can be problematic, e.g. the Nat Fraser case in which there was a retrial.

Ms Tiffney’s skeletal remains were discovered by a cyclist near Longniddry, East Lothian on 2 April 2017. The cause of death was unascertainable. Soil samples recovered near the remains matched debris recovered in 2002 in the wheel arch of a car to which Flynn had access. This evidence coupled with CCTV and telephony evidence suggested Flynn had made two trips to East Lothian on 28 May 2002. The Crown contended the first trip was to dispose of the body and the second to check that it was not visible in daylight.

On 9 January 2020 the Appeal Court considered the new evidence “substantially strengthened” the case against Flynn and granted authority for a new prosecution under the Double Jeopardy (Scotland) Act 2011 – see [2022] HCJAC 4 (published 24 January 2022).

Following this ruling, and after COVID delays, Flynn was indicted for his mother’s murder in January 2021 and was due to stand trial at Livingston High Court in October last year, but failed to appear and a warrant was granted for his arrest. A few days later, it was revealed that Flynn, who had been living in Berlin, had been found dead in Peniscola near Valencia in Spain having apparently taken his own life.

As a lawyer, you can get frustrated when the law is not able to take its course one way or another. We are just left with a much stronger circumstantial case than before.

Meanwhile in the Sheriff Appeal Court

There were two new cases to consider for this briefing. To provide an insight into the court’s work I have selected Dhaliwal v Procurator Fiscal, Dumbarton [2021] SAC (Crim) 8 (6 October 2021, published 21 December 2021).

An extempore opinion was provided by the court in this appeal. After trial in May 2021, the appellant was convicted under s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, for causing fear and alarm by following a woman outside Asda at Bearsden in April 2019 and making sexually inappropriate remarks towards her. No appeal was taken in respect of the fine of £1,000 which was imposed, which also resulted in the appellant becoming subject to the sex offender registration requirements for a five-year period. The question for the court was, was there a significant sexual aspect to the offending?

The evidence was that the appellant followed the complainer through the shop, making remarks about her removing her feet from her high heel shoes. He then offered her £70 to take off her shoes for him in the car park. The complainer refused but the appellant persisted.

The Sheriff Appeal Court concluded that the circumstances were suggestive of sexual deviance, soliciting a lone female in a supermarket for fetish prostitution. It was not suggested that the appellant acted in the manner as a joke or a prank. The sheriff was best placed to make the assessment that the conduct was significantly sexual and there was no basis to consider that there was anything other than a sexual motivation.