Scottish High Court of Justiciary Decisons
You are here:
BAILII >>
Databases >>
Scottish High Court of Justiciary Decisons >>
HER MAJESTY'S ADVOCATE AGAINST RONALD JAMES ALEXANDER ADAMS [2021] ScotHC HCJAC_19 (30 August 2019)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_19.html
Cite as:
[2021] ScotHC HCJAC_19,
2021 SCCR 92,
2021 SLT 763,
2021 GWD 11-143,
[2021] HCJAC 19,
2021 JC 87
[
New search]
[
Printable PDF version]
[
Help]
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 19
HCA/2019/339/XC
Lord Justice General
Lord Drummond Young
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
CROWN APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE
(SCOTLAND) ACT 1995
by
HER MAJESTY'S ADVOCATE
Appellant
against
RONALD JAMES ALEXANDER ADAMS
Respondent
Appellant: the Lord Advocate (Wolffe QC), AD; the Crown Agent
Respondent: K Stewart QC, Lawrie; JHS Law, Dumfries
30 August 2019
Introduction
[1]
This appeal raises the issue of whether the appellant is entitled to libel, in the form of
a docket, the occurrence of a penetrative sexual assault and rape in circumstances where the
respondent had previously pled guilty in another jurisdiction to part of the docket charge; in
2
particular the sexual assault. The contention in short is that the respondent would not be
able to challenge the facts relative to that episode standing the existence of the plea.
Background
[2]
The respondent was indicted to a preliminary hearing on 6 November 2018 at the
High Court in Glasgow. The indictment libels five charges, all of which involve GA as the
complainer. These are: first, indecent assault to injury at addresses in Dalbeattie and Castle
Douglas between 1999 and 2010; secondly, sexual assault to injury, contrary to section 3 of
the Sexual Offences (Scotland) Act 2009, again at Castle Douglas in 2011; thirdly, one
episode of assault and rape to injury at Dalbeattie in December 1999 or January 2000;
fourthly, assault on various occasions at Castle Douglas between 2004 and 2011; and fifthly,
penetrative sexual assault, contrary to section 2 of the 2009 Act, at Castle Douglas in August
2011.
[3]
Attached to the indictment is a docket, which refers to the penetrative sexual assault
and rape of CH in Liverpool on 3 January 2016. The respondent pled guilty to the sexual
assault but not to the rape at Liverpool Crown Court on 13 February 2017. These pleas were
accepted and the respondent was sentenced on that basis.
[4]
The preliminary hearing was postponed on several occasions before the judge made
determinations on a preliminary issue minute, which challenged the admissibility of
evidence relative to the events libelled in the docket, and a compatibility minute which
maintained that leading that evidence would breach the respondent's rights under Article 6
of the European Convention; in particular that in Article 6(3)(d) to examine or have
examined witnesses against him. It was submitted that it would be oppressive for the
respondent to stand trial on an indictment to which the docket was attached. Contrary to
3
the position in HM Advocate v Moynihan 2019 SLT 370, in which the accused had previously
been convicted of rape, it was contended that the evidence relied upon in respect of the
sexual assault and rape elements in the docket would not be capable of challenge, nor could
the respondent give evidence of his innocence of these elements. There would, it was said,
be unchallenged evidence of criminal conduct before the jury in support of the docket
offence. This would in effect amount to a contravention of the prohibition on the disclosure
of previous convictions in section 101of the Criminal Procedure (Scotland) Act 1995 (see
Lewry v HM Advocate 2013 SCCR 397).
[5]
The preliminary hearing judge noted that there was a conflict between the first
instance High Court decisions in HM Advocate v Murdoch, unreported, 28 August 2018,
Lord Ericht, and HM Advocate v Nicholl, unreported, 27 June 2017, Lord Burns; the latter
having preceded HM Advocate v Moynihan (supra). He reasoned that, if the Crown were
allowed to lead evidence of the facts relative to the docket offence, the jury would be
unaware that he had previously pled guilty to that offence. The problem arose at the stage
of cross-examination. Having pled guilty, the respondent could not, legally or ethically,
dispute that evidence. He was therefore at a disadvantage from an accused who had not
pled guilty. The leading of evidence, which the respondent could not challenge because he
had pled guilty, when he did not know and had not been cautioned that that evidence might
be used against him for proof of other charges later, was inherently unfair and oppressive.
The judge therefore disagreed with the reasoning in HM Advocate v Murdoch (supra) but
agreed with that in HM Advocate v Nicholl (supra). There was a difference in principle
between evidence relating to an offence to which an accused had previously pled guilty and
evidence relating to an offence of which an accused had been found guilty. In the latter case,
the respondent was able to challenge the evidence, but in the former he was not. The judge
4
therefore ruled the evidence inadmissible. He also considered that the leading of that
evidence would be unfair.
Submissions
[6]
The appellant maintained that the preliminary hearing judge had erred in holding
the evidence to be inadmissible. The evidence was relevant to the offences charged in the
indictment and met the statutory criteria relative to dockets in section 288BA of the Criminal
Procedure (Scotland) Act 1995. The judge had erred in distinguishing HM Advocate v
Moynihan (supra). There was no basis for refusing to admit evidence of an act which had
previously been established by virtue of an accused's admission (see Fraser v HM Advocate
2014 JC 115 at paras 50 and 54). The judge had erred in concluding that there was a
difference of principle between leading evidence of facts which had been the subject of a
previous guilty plea and evidence of facts which had resulted in a previous guilty verdict.
In neither case did the Crown seek to prove or rely on the fact of conviction. The ability of
an accused to challenge the evidence, the accuracy of which he admitted, was not a
condition of the admissibility of that evidence or the fairness of its admission. The
constraint on the accused's ability to challenge the evidence was caused not by the earlier
plea or finding of guilt but upon the accused's position on the facts. The judge had erred in
relying on the disadvantage at which the respondent was said to be placed, as compared
with an accused, such as that in Moynihan, who had been convicted. He had erred in relying
on the analogy of a confession obtained after police questioning without a caution. He had
erred in concluding that the admission of evidence on the docket charge would be
incompatible with the respondent's Article 6 rights. The respondent would continue to have
ample opportunity to cross-examine the witnesses.
5
[7]
The respondent adopted the reasoning of the preliminary hearing judge in arguing
that the libelling of the docket offence was both oppressive and contrary to the respondent's
Article 6 rights. The jury would be invited to apply mutual corroboration when the Crown
had accepted that, in relation to the libel in the docket, no rape had taken place. The
principle of finality was applicable. The respondent was facing an allegation in respect of
which the Crown had already accepted a not guilty plea. In England, evidence of the
respondent's involvement in the other offence could be excluded if it had an adverse effect
on the fairness of the proceedings (Criminal Justice Act 2003 s.101). The respondent could
not challenge the complainer in the docket libel. The respondent may be obliged to lead
evidence of the previous conviction, contrary to section 101 of the 1995 Act (Cordiner v HM
Advocate 1978 JC 64 at 67). The respondent's counsel would be restricted in his cross-
examination because of the previous guilty plea.
Decision
[8]
In HM Advocate v Murdoch, unreported, 28 August 2018, Lord Ericht, evidence of a
rape libelled in a docket, to which the accused had previously pled guilty, was allowed
despite similar contentions to those which are advanced in the present case. As Lord Ericht
reasoned in Murdoch, the problems, if any, in the conduct of the defence case arise not from
the libel in the docket but from the acceptance by the respondent of his guilt of the offence
libelled in that docket. That would present an ethical problem irrespective of a previous
plea of guilty (Faculty of Advocates: Code of Conduct (6
th
ed, July 2018) para 5.2.4). The
difficulty arises only if the respondent accepts the correctness of the previous plea. In that
respect, the situation does not differ from that where an accused accepts his guilt in respect
of a part of the libel of an indictment. Even if the respondent does accept the truth of the
6
plea tendered, that does not preclude him from cross-examining the complainer in the
docket, only that he could not do so in a manner inconsistent with the acceptance of the
truth of the guilty plea. The respondent is not prevented from presenting arguments that
the Crown have failed to prove one or more, or all, of the charges on the indictment or that
libelled in the docket or that mutual corroboration should not apply because the applicable
legal test has not been met. The court agrees with the reasoning of Lord Ericht in Murdoch.
There is no material difference between the current situation and one in which the accused
has previously been found guilty (HM Advocate v Moynihan 2019 SLT 370; Fraser v HM
Advocate 2014 JC 115). As distinct from Cordiner v HM Advocate 1978 JC 64, there is no
element of forcing the respondent to reveal the previous conviction. That conviction should
not be revealed unless the respondent elects to take that course and present the argument,
which Lord Ericht referred to, that his previous plea was indicative of his preparedness to
accept guilt but only when he had committed the offence.
[9]
The court accordingly allows the appeal and repels both the objection to the
admission of the evidence and the contention of unfairness in the compatibility minute.
