HCJ 85
HIGH COURT OF JUSTICIARY
OPINION LORD UIST
HER MAJESTY’S ADVOCATE
Crown: McClory AD; Crown Agent
Defence: J MacDonald; Anthony Mahon & Co, Glasgow
5 October 2015
 The accused, who was born on 27 August 1957, appeared for trial at Edinburgh High Court on 1 October 2015 on an indictment containing three charges. He pleaded not guilty to all charges. The terms of the charges, suitably anonymised, are as follows:
“(1) on various occasions between 27 August 1969 and 12 April 1973, both dates inclusive, at 66 M Street, 2/2, 575 S Street and 11 D Street, all Glasgow, you JRD did use lewd, indecent and libidinous practices and behaviour towards CD, your niece, born 13 April 1961, then aged between 8 and 11 years, c/o Police Service of Scotland, London Road, Glasgow and did attempt to kiss her, touch her legs, attempt to remove her clothing, rub your penis against her body, attempt to handle her vagina under her clothing, induce her to touch your penis, induce her to kiss your penis, penetrate her mouth with your penis and penetrate her vagina with your fingers;
(2) on various occasions between 1 January 1973 and 12 April 1973, both dates inclusive, at 11 D Street, Glasgow you JRD did assault CD, your niece, born 13 April 1961, then aged 11 years, c/o Police Service of Scotland, London Road, Glasgow and did lie on top of her, pull down her underwear, penetrate her vagina with your penis and did rape her;
(3) on various occasions between 1 January 1971 and 10 April 1972, both dates inclusive at 2/2, 575 S Street, Glasgow, you JRD did use lewd, indecent and libidinous practices and behaviour towards ADN, your niece, born 11 April 1960, then aged between 10 and 11 years, c/o Police Service of Scotland, London Road, Glasgow and did expose your naked and erect penis and rub your penis against her body to the emission of semen.”
 There is also a docket attached to the indictment in the following terms:
“TAKE NOTICE that the Crown intend to lead evidence that the accused JRD
used lewd, indecent and libidinous practices and behaviour towards the complainer in charges 1 and 2 on the indictment, namely, Crown Witness CD, born 13 April 1961, at 66 M Street and 11 D Street, both Glasgow, in the manner libelled in charge 1 from 13 April 1967 to 26 August 1969.
Such evidence is evidence of a crime not libelled, being subject to the prohibition referred to in section 41A(2) of the Criminal Procedure (Scotland) Act 1995, but is relevant evidence to the proof of charges 1 to 3 on the indictment.”
 The indictment was read to the jury by the clerk of court in the usual manner before the members of the jury were sworn to try the case. The docket was not read to the jury and they have no knowledge of it.
 CD, the complainer in charges 1 and 2, gave evidence on the first day of the trial. In the course of her evidence-in-chief she spoke to two instances of rape by the accused at D Street and said that she could not recall any other sexual abuse by him at D Street. In the course of cross-examination she stated that everything that happened to her happened at D Street. When a police statement made by her on 6 April 2014 was put to her she accepted that in that statement, which had been read to her by a police officer before she signed it confirming that it was a true and accurate record, she had said that the accused had done things to her at 66 M Street. She explained that it was her grandfather, not the accused, who had done things to her at 66 M Street. She could not explain why she had told the police that the accused had done things to her at 66 M Street when that was not true. In re-examination she accepted that she had also told the police that the accused had done things to her at both 66 M Street and 575 S Street, but that that was not true. In answer to questions from me at the end of re-examination she explained that it occurred to her that she had told the police untruths only when her police statement was shown to her in the witness box. She confirmed to me that the accused had not done anything sexual to her at M Street or S Street. I should add for the sake of completeness that the complainer also gave an earlier police statement dated 28 February 2014, which was not referred to in evidence, in which she said that the accused “abused me at D Street and nowhere else”.
 After the complainer left court I inquired of the advocate depute whether the evidence of the complainer that the accused had done nothing to her at M Street and S Street had come as a surprise to him. He explained that it had not, in view of the contents of a precognition which she gave to a precognition officer on 22 January 2015. I was provided by the advocate depute with the terms of three separate passages from that precognition. These are as follows:
“It has been put to me that in my police statement that I described how JRD would put his fingers inside my vagina. I have been asked at which address this would have occurred. Again, it would have been the address at D Street.
It has been put to me that in my police statement I have described how JRD would get me to kiss his penis and put his penis in my mouth. I have been asked if I recall at which address this would have occurred. The address at D Street.
I have been asked if I recall JRD abusing me at either M Street, Glasgow or S Street, Glasgow. The memories I have of M Street are of my grandad. Everything that I can remember I remember happening at D Street. I think that things may have happened before that with JRD. I can’t sit here with my hand on my heart and honestly tell you that I remember anything happening before that. I couldn’t truthfully tell you any more.”
 I was also informed that the precognition was available to the Advocate Depute who had marked the case for prosecution on 26 January 2015 with the instruction “Proceed High Court. Sufficient evidence.” The report from the procurator fiscal to Crown Office contained two draft charges. The first was of rape and lewd and libidinous practices and behaviour against CD at 11 D Street only and the second was of lewd and libidinous practices and behaviour against ADN at 575 S Street only. Notwithstanding the terms of the precognition, charge 1 alleges serious criminal conduct by the accused towards CD at both M Street and S Street. On 3 February 2015, in accordance with their duty of disclosure, the Crown Office wrote to the solicitor for the accused informing him of the terms of further information from the complainer in her precognition which was not contained within her previously disclosed police statements. The last paragraph of that letter is in the following terms:
“When asked if she recalled being sexually abused by the accused at either M Street, Glasgow or S Street, Glasgow she advised that her memories of M Street involved her granddad. She advised that everything she can remember happening with the accused happened at the address at D Street. She advised that there may have been things that happened before that with the accused but she could not be certain about this.”
 The indictment was served on the accused on 5 February 2015 and preliminary hearings took place at Glasgow High Court on 10 March and 12 May 2015. No attempt was made by the Crown to remove the unwarranted allegations referring to M Street and S Street at either of the preliminary hearings or at any other stage before the leading of evidence from the complainer CD. The advocate depute has stated that he will move to delete the references to M Street and S Street from charge 1, although he did not indicate at what point he proposed to do this.
 The narrative which I have given shows that the Crown included in charge 1 allegations of serious criminal conduct by the accused at 66 M Street and 575 S Street for which they had no evidential foundation. I regard this as unconscionable, reprehensible and indefensible conduct on their part. I therefore raised with counsel the question of what, if anything, should be done about it. Mr MacDonald for the accused submitted that there had been such serious prejudice to the accused by the inclusion of the unwarranted allegations in charge 1 and their having been read to the jury to amount to oppression by the Crown with the consequence that the court should desert the indictment simpliciter. While the advocate depute accepted that, in general, it amounted to oppression for the Crown to include allegations for which they had no evidential foundation in an indictment and stated that he knew of no case where the court had been satisfied that there was oppression and yet allowed the prosecution to continue, he submitted that there had not been oppression in this case. He submitted that, as the terms of the precognition had been disclosed to the defence, justice had been seen to be done and any prejudice to the accused could be adequately dealt with by the court.
 It was accepted by both the advocate depute and Mr MacDonald that the law on oppression is conveniently summarised in the following passages in Renton and Brown on Criminal Procedure at para 9-21 as follows:
“Although the decision whether and when to prosecute is within the discretion of the Lord Advocate and is not subject to control by the court, the court does retain an inherent power to prevent a case proceeding to trial where it would be oppressive and unfair to the accused to allow the trial to proceed. ...
The criterion to be used on whether proceedings are incompetent on the ground of oppression is the same for all types of oppression, and is the criterion originally laid down for cases of undue publicity, has there been prejudice so grave as to be incapable of being removed by an appropriate direction to the jury or by other action on the part of the trial judge, so as to give the accused a fair trial. The mere fact that the Crown have behaved prior to the trial in a way of which the judge disapproves does not entitle him to sustain a plea of oppression.”
Reference was also made in the course of the discussion to the cases of McFadyen v Annan 1992 SCCR 186 and Mowbray v Crowe 1993 SCCR 731.
 In my opinion the first question which I must consider in this case is whether there has been oppression on the part of the Crown. I am in no doubt that there has been. The advocate depute, as I have already said, accepted that, in general, it was oppression for the Crown to include in an indictment allegations for which there is no evidential basis, while at the same time contending that there had been no oppression in this case. I do not see how it can be maintained that there has not been oppression in this case. The Crown included in charge 1 allegations of serious sexual crimes at M Street and S Street (which would now amount to rape and sexual assault by penetration contrary to sections 1 and 2 of the Sexual Offences (Scotland) Act 2009) which the complainer had made clear at precognition she could not speak to, and to which she did not speak in her evidence. Although it was open to the Crown to remove these allegations before the commencement of the trial it did not do so. 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. The situation which has arisen in this case is quite different from that which arises when a witness unexpectedly fails to speak up to a police statement or precognition without fault on the part of the Crown. This is a blatant case of the Crown alleging serious sexual crimes by the accused at two addresses for which they had no supporting evidence. There is no way that the court can now remove the oppression created by the Crown in this trial.
 As I am satisfied that there has been oppression I must now consider what I should do about it. There are three options open to me: first, to allow the trial to proceed without taking any action; secondly, to desert the indictment pro loco et tempore; and thirdly, to desert the indictment simpliciter. As I have already mentioned, the Advocate Depute could not refer me to any case of oppression where the court had allowed the prosecution to continue. The choices open to me are therefore between options 2 and 3. Desertion pro loco et tempore would permit the Crown to raise a fresh indictment without the unwarranted allegations, whereas desertion simpliciter would bring the prosecution to an end 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. 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.