Charging conduct without evidence was oppression, judge rules
It was indefensible for the Crown to include in an indictment allegations of serious criminal conduct for which it had no evidential foundation, and created oppression such that it would be unfair to the accused to allow a trial to take place at any time in the future, a High Court judge has held.
Lord Uist gave his decision in deserting simpliciter an indictment against JRD which alleged historic sexual abuse against two nieces, CD and ADN. The charges were (1) lewd, indecent and libidinous practices against CD at three addresses in Glasgow, between 1969 and 1973; (2) a series of rapes of CD at the third address during 1973; (3) lewd, indecent and libidinous practices against ADN at the second address. A docket to the indictment, not read to the jury, advised that evidence would be led of earlier conduct by the accused against CD at the first and third addresses, which could not now be prosecuted but which was relevant to proof of the charges libelled.
The indictment was read to the jury and the trial began. CD gave evidence that anything the accused had done had happened at the third address, and only her grandfather had abused her at the first address. The advocate depute subsequently accepted before the judge that this had not come as a surprise, in view of a precognition given by CD two weeks before the indictment was served. This precognition, which conflicted with an earlier police statement, had been disclosed to the accused's solicitors, but the Crown did not attempt to remove the unwarranted allegations relating to the first two addresses at any stage prior to CD's evidence. The advocate depute stated that he would move the necessary deletions at a later stage.
Lord Uist said he regarded it as “unconscionable, reprehensible and indefensible conduct” for the Crown to include allegations of serious criminal conduct at two addresses for which it had no evidential foundation. The advocate depute had contended that this did not amount to oppression in the present case, which accepting that in general it would, but his Lordship could not see how it could be maintained that there was no oppression. CD had made it clear she would not speak to those allegations, but “The jury were made aware of those allegations when the indictment was read to them. It is the inexplicable conduct of the Crown which has created oppression in this case and resulted in an unfair trial for the accused.”
No case was cited in which a trial had been allowed to continue in such circumstances. The options were desertion allowing the Crown to raise a fresh indictment, or desertion for all time. “In determining which course to follow I take into account not only the nature of the oppression by the Crown but also that the charges relate to conduct alleged to have taken place over 42 years ago and that the accused first appeared on petition on 6 May 2014”, Lord Uist said. “I am of the view that the conduct of the Crown has fatally infected this prosecution and that it would be unfair to the accused to allow the Crown to re-indict him with a view to another trial at some unknown date in the future. I shall therefore desert the indictment simpliciter.”
Click here to view the opinion.