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APPEAL BY JAMIE FISHER AGAINST HMA [2022] ScotHC HCJAC_43 (19 March 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_43.html
Cite as:
2023 SCCR 1,
[2022] ScotHC HCJAC_43,
[2022] HCJAC 43,
2022 GWD 38-550,
2023 JC 21
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 43
HCA/2021/35/XC
Lord Justice General
Lord Woolman
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE
(SCOTLAND) ACT 1995
by
JAMIE FISHER
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Bovey QC; Tod & Mitchell, Paisley
Respondent: A Prentice QC (sol adv) AD; the Crown Agent
19 March 2021
Introduction
[1]
The appellant appeared at a First Diet in Paisley Sheriff Court on 22 January 2021.
The indictment libels two sexual assaults on RK at different addresses in Paisley; contrary to
section 3 of the Sexual Offences (Scotland) Act 2009. The first was in December 2017 by
repeatedly rubbing her vagina over her clothing. The second was in January 2018 by the
same method and by seizing her breast and repeatedly thrusting his erect penis into her
2
buttocks over her clothing. There is then a docket giving notice that the Crown intend to
lead evidence of another sexual assault, this time on LP at a third address in Paisley in April
2018 by touching her breast and vagina under her clothing and thrusting his erect penis into
her buttocks over her clothing.
[2]
The significant feature of the case is that the appellant has been acquitted of the
conduct referred to in the docket. The reason why all three charges were not tried together
is that the two charges on this indictment were only reported to the respondent some
19 days prior to the trial arising out of the April 2018 incident. The appellant lodged four
separate minutes; each complaining about the docket. Three are relevant in the appeal.
They contend that the inclusion of the docket is (i) incompetent, (ii) oppressive and (iii)
incompatible with Article 6 of the European Convention. The sheriff repelled these
objections. The appeal concerns whether he was correct to do so. The appellant seeks to
add an argument based on Article 8, which was not before the sheriff.
Legislation
[3]
Section 288BA of the Criminal Procedure (Scotland) Act 1995, as inserted by the
Criminal Justice and Licensing (Scotland) Act 2010 (s 63), provides that:
"(1)
An indictment... may include a docket which specifies an act ... that is
connected with a sexual offence charged in the indictment...
(2)
... an act... is connected... if it
...
(b) relates to
...
(ii) a series of events of which that offence is also part.
...
3
(4)
It does not matter whether the act ..., if it were instead charged as an offence
could not competently be dealt with by the Court ... in which the indictment ... is
proceeding."
The Sheriff's reasoning
[4]
The sheriff took as his starting point the terms of the statutory provisions. While it
would be incompetent to include the act which was specified in the docket as a charge,
section 288BA(4) permitted the Crown to include it on the indictment. The appellant was
not being prosecuted for the act in the docket (HMA v AD 2018 JC 109 at para [32]) but only
in respect of the two charges. The question of a fair trial did not arise (AD at para [35]).
Even when there had been an acquittal on a charge, the evidence may remain available in
aid of other charges (Lauchlan and O'Neill v HM Advocate 2015 JC 75). The presumption of
innocence had no bearing on any matter contained in the docket, whether relating to a
conviction or otherwise (AD at para [32]). The jury would require to be satisfied that the
witness speaking to the docket act was credible and reliable. The court could not look
behind the earlier acquittal and reach any conclusion upon the jury's assessment of LP's
credibility and reliability. A failure by the Crown to bring all outstanding charges against
the appellant in the one indictment was not oppressive. Having held that the insertion of
the docket was competent, the test for oppression was not met.
Submissions
Appellant
[5]
The appellant's submissions were wide ranging. In summary, they were that the
inclusion of the docket was contrary to the common law principle that, where a point had
been determined by the courts, it was not open to the parties to re-litigate the same point.
4
The docket violated the presumption of innocence; contrary to Article 6. It breached the
appellant's Article 8 right to respect for his private life, particularly his reputation.
[6]
In the absence of express language or necessary implication, the courts presumed
that even the most general words in a statute were intended to be subject to fundamental
rights (R v Home Secretary ex p Simms [2000] 2 AC 115 at 131), including those not in the
Convention (R (Anufrijeva) v SSHD [2004] AC 604 at para 27). Although section 288BA was
broad enough to include the conduct narrated in the docket, the court should read it down
to exclude conduct of which an accused had been acquitted.
[7]
A person could not be made to thole an assize more than once. This was the plea of
res judicata (Trayner's Latin Maxims 553; Scottish Law Commission: Discussion Paper on
Double Jeopardy July 2009 paras 1.10 & 1.11; in European terms "ne bis in idem"). The plea of
res judicata presented a bar to a new trial, if it appeared that the initial trial, whether
resulting in a conviction or an acquittal, had related to the offence which was subsequently
libelled (Hall v Associated Newspapers 1979 JC
1; HM Advocate v Cairns 1967 JC 37 at 45; Hume
II viii 479, cited in Fairweather (1836) 1 Swin 354 at 370).
[8]
A docket containing an allegation of which the accused had been acquitted was a
second attempt to establish guilt. R v Z [2000] 2 AC 483, which permitted the leading of
evidence of events which had been contained in charges on which the accused had been
acquitted, had departed from Sambasivam v Public Prosecutor, Federation of Malaya [1950]
AC 458 and should not be followed. In R v Mahalingan
[2008] 3 SCR 316 (at para 17) the
Supreme Court of Canada upheld issue estoppel as a rule preventing re-litigation of decided
issues.
[9]
The res judicata principle was subject to extensive exceptions, including those in the
Double Jeopardy (Scotland) Act 2011. To restrict res judicata to cases in which the accused
5
was being prosecuted for the same offence was too narrow. HM Advocate v DE (unreported)
IND/2020-2608 had failed to recognise the principle of res judicata.
[10]
The Sheriff erred in failing to hold that it was oppressive for the Crown to include
such a docket or to attempt to lead evidence in support of the allegations contained in it .
Where the Crown had had the opportunity to prosecute the appellant in respect of all the
allegations on the same indictment, their proposal now to seek a conviction in respect of
RK's allegations was oppressive.
[11]
For the Crown to lead evidence, which demonstrated the appellant's guilt of an
offence of which he had been acquitted, was to act incompatibly with his Convention rights.
Pasquini v San Marino (No. 2) [2020] ECHR 743 referred (at para 49) to the second aspect of
the protection afforded by Article 6(2), which arose when criminal proceedings had
terminated and new proceedings had followed. This involved respect for any acquittal
(Allen v United Kingdom (2016) 63 EHRR 10 at paras 102-4). There was a consistent line of
authority on this dating back to Minelli v Switzerland (1983) 5 EHRR 554. Without respect for
an acquittal, the fair-trial guarantees of Article 6.2 could become theoretical and illusory.
[12]
Once criminal proceedings had resulted in an acquittal, it had been said that the
presumption of innocence had no continuing relevance, except to prohibit a public authority
from suggesting that the acquitted person should have been convicted (R (Hallam) v Justice
Secretary [2020] AC 279 at paras 47, 78, 86, 126, 132, cf 184 and 207). By including the docket
the Crown, as a public authority, were disputing the appellant's acquittal.
[13]
In terms of Article 8 the appellant was entitled to respect for his private life,
including his reputation (Axel Springer v Germany (2012) 55 EHRR 6 at para 83). The
protection overlapped with that afforded under Article 6.2 (Pasquini at para 48). The Crown,
by leading evidence relating to a charge of which the appellant had been acquitted, breached
6
his right to respect for his private life, particularly his reputation. This argument had not
been put before the sheriff, but it had been identified by counsel instructed for the appeal.
Interference with Article 8 rights could be assessed by asking the five questions posed in R
(Razgar) v Home Secretary [2004] 2 AC 368 (at para 17). The docket was an interference with
the appellant's right to respect for his private life. It had consequences of such gravity as
potentially to engage Article 8. That interference was in accordance with the law and was
necessary in the interests of the prevention of crime. However, the interference was not
proportionate to the legitimate public end sought to be achieved.
[14]
The court required to reach a decision on the proportionality of the interference
interference with the appellant's right to respect for his private life against the interests in
the prevention of crime, the docket procedure was damaging to his reputation. There were
cases where the circumstances involved a legitimate public interest in a course of action
(Akinyemi v Home Secretary [2020] 1 WLR 1843 para 39). The public interest in allowing the
docket procedure here was weak. The charges relating to all three complainers could have
been dealt with in the first trial. Finality was undermined by rehearing the allegations. The
significance of acquittals should be acknowledged. The docket complainer may feel
undermined should there be a second acquittal. The allegations were not of the first
seriousness. The youth and previous good character of the appellant did not present a need
for a second airing of the docket allegations.
Respondent
[15]
The advocate depute submitted that the terms of section 288BA were clear. They
allowed the Crown to use the docket procedure to lead evidence relating to an allegation of
7
which the appellant had been acquitted after trial, provided that it was "connected with a
sexual offence charged in the indictment". The statutory wording readily encompassed the
inclusion of acts amounting to a sexual offence of which the accused had previously been
acquitted.
[16]
The Crown sought here to rely on the evidence of the docket complainer in support
of the substantive charges. The appellant was not, however, being tried in relation to the
acts specified in the docket. There would be no determination in relation to those acts, such
as involved a collateral undermining of the acquittal. The trial judge would explain the
status of the docket at the outset of the trial and formulate appropriate directions (HM
para 32). The evidence relating to the docket was being used to corroborate the evidence on
the charges on which the appellant had been indicted. The Crown was not seeking to
"assert the guilt of a person whose innocence has been established" (Sekanina v Austria
[17]
The test for oppression (McFadyen v Annan 1992 JC 53) was not met. A failure to
bring all outstanding charges against the appellant on one indictment was not oppressive.
[18]
The presumption of innocence had no bearing on any matter contained in a docket,
(HM Advocate v Moynihan at para 16). It was merely a mechanism for giving notice to the
accused that evidence might be led in support of those facts. The plea of res judicata was
therefore misconceived.
[19]
The Article 8 arguments had not been advanced before the sheriff. Accordingly, they
could not form part of an appeal under section 74 of the 1995 Act (Follen v HMA 2001 SCCR
255).
8
Decision
The necessity for corroboration
[20]
The criminal law specifies that no person can be convicted on the testimony of a
single witness. There must be corroboration. In a sexual offence case, that will normally
consist of testimony from another person about facts and circumstances which confirm or
support the direct evidence of the complainer about the events libelled (Fox v HM Advocate
1998 JC 94, LJG (Rodger) at 107). Although de recenti distress of a complainer may provide
an element of corroboration in relation to a lack of consent to whatever the complainer
testifies had happened to her, it may often not do so in relation to the acts libelled (Smith v
Lees 1997 JC 73, LJG (Rodger) at 80-81). Statements which are made by a complainer after
the event cannot do so either (Morton v HM Advocate 1938 JC 50, LJC (Aitchison), delivering
the opinion of the Full Bench, at 52-53.
[21]
To these limitations may be added perhaps the most significant factor. Sexual
offences are seldom witnessed by others. They often cannot be proved even if: (a) the
complainer is regarded as manifestly credible and reliable; and (b) there is evidence, such as
a de recenti statement, which bolsters those qualities of her testimony. It follows that an
accused person may be acquitted even although the jury accepted the complainer as an
entirely truthful and dependable witness. The case may have failed to prove because of a
lack of acceptable corroboration. These difficulties have led the Crown to rely to a
substantial extent on the principle of mutual corroboration.
[22]
Mutual corroboration does not equate precisely with what is termed "similar fact
evidence" which is admissible in some other jurisdictions (eg R v Z [2000] 2 AC 483). As a
generality, evidence of similar facts is inadmissible. It cannot amount to corroboration.
However, if there are facts which are so similar in terms of time, place and circumstances
9
such as could demonstrate that the individual incidents libelled were component parts of
one course of conduct persistently pursued by the accused, then these facts may be proved
in order to provide the necessary corroboration (Adam v HM Advocate 2020 JC 141, LJG
(Carloway), delivering the opinion of the court, at paras [26]-[28]). Something more than a
propensity to commit the type of crime libelled is required.
Procedure
[23]
The facts which provide mutual corroboration of one charge are usually libelled as
another charge on the indictment. In such a case, the jury will be directed that they need to
accept the testimony of more than one complainer before returning a guilty verdict on any
charge. This will often mean that the jury will require either to find the accused guilty of
more than one charge (involving different complainers) or otherwise acquit him of all
charges. There are exceptions, including where, although a jury accept a complainer's
testimony, they cannot be satisfied that the conduct fell within the time libelled (see eg
Cannell v HM Advocate 2009 SCCR 207), or at a place within the jurisdiction. There are
several circumstances in which it will not be competent for the Crown to seek a conviction
on another charge. Obvious examples are charges which involve actings outwith Scotland
or which are time-barred for one reason or another.
[24]
In the latter circumstance, as it was put in Lauchlan and O'Neill (No 2) 2015 JC 75 (LJC
(Carloway), delivering the opinion of the court):
"[27] If the Crown maintain that evidence of facts, which could constitute a
separate crime, is relevant to prove another, usually more serious crime, they can
libel that subsidiary crime for evidential reasons... That is so even if the charge is
actually incompetent for some reason... Evidence can be introduced in respect of the
subsidiary charge, even if the Crown cannot seek a conviction in respect of it... Such
evidence will remain for the jury's consideration on the principal charge...".
10
The court may determine that there has been insufficient evidence to prove a particular
charge and may sustain a no case to answer submission. In that event, the evidence in
relation to that charge may remain relevant to proof of another charge and is available for
that purpose (HM Advocate v Mair 2014 JC 137, LJC (Carloway), delivering the opinion of the
court, at para [9]). The evidence, in relation to a charge which has resulted in an acquittal,
does not become incompetent or inadmissible relative to other offences which are libelled.
Where a person has been previously acquitted or convicted of a charge, it is open to the
Crown to libel that charge again for evidential reasons, even although they cannot seek a
conviction on that charge (see also HM Advocate v AD 2018 JC 109, Lady Paton, delivering
the opinion of the court, at para [25]). Quantum valeat, this appears to be akin to the position
on similar fact evidence in England and Wales (R v Z, Lord Hope at 487).
The Statutory Amendment
[25]
Section 288BA (1) of the Criminal Procedure (Scotland) Act 1995 was introduced by
the Criminal Justice and Licensing (Scotland) Act 2010 (s 63). It was intended to allow the
Crown to lead evidence of facts and circumstances which could provide corroboration of the
testimony of a complainer in a sexual offence. The prescribed method is to include a docket
in the indictment which specifies the potentially corroborative facts. It is important to
observe that those facts must meet the test for mutual corroboration. They must narrate
"conventional similarities in time, place and circumstances ... such as demonstrate that the
individual incidents are component parts of one course of criminal conduct persistently
pursued by the accused" (Lauchlan and O'Neill v HM Advocate at para [32] citing MR v
HM Advocate 2013 JC 212, LJC (Carloway), delivering the opinion of the Full Bench, at
para [19]). The competency of using section 288BA (1) in this manner was recently made
11
clear in HM Advocate v Moynihan 2019 SCCR 61 (LJC (Dorrian), delivering the opinion of the
court, at para [9]).
[26]
The docket procedure has been in place for over a decade. The issue of res judicata
does not arise. There is no question of the appellant being convicted of an offence of which
he has already been acquitted. That acquittal is not challenged and remains a matter of
public record. All that is happening is that the docket complainer will be led as a possible
source of corroboration. The presumption of innocence, which applies to the charge libelled,
remains firmly in place. It is not affected.
[27]
Section 288BA is unambiguous. It specifically includes acts which could not
competently be dealt with by the court (s 288BA(4)). The existence of acts which were tried
and resulted in a person's acquittal is one obvious example. The jury will not be asked to
return a verdict on the docket narrative. They will simply be directed that, if they find the
docket complainer to be credible and reliable, they may, if the other features necessary for
mutual corroboration are present, find that the testimony of the complainer on the charges
libelled on the indictment is duly corroborated.
Oppression
[28]
"Whether oppression can be established depends on the particular facts and
circumstances, including the Crown's conduct, the seriousness of the charge and the public
interest in ensuring that crime is prosecuted" (Potts v Gibson 2017 JC 194, LJG (Carloway),
delivering the opinion of the court, at para [16]). It is not unusual for an accused person to
complain about being tried on several charges, especially if these are not linked in time,
place or circumstances. The accused has the option of moving for a separation of charges;
the test being whether the prosecution on two or more charges would create a material risk
12
of real prejudice (Toner v HM Advocate 1995 SCCR 697, LJC (Ross), delivering the opinion of
the court, at 704). Such motions are seldom granted, even where there is no connection
between the charges (see Renton & Brown: Criminal Procedure (6th ed) para 9-53, quoting
from Hume: Commentaries ii 172). In this case, the peculiarity is that the appellant complain s
of the opposite; that the present charges ought to have been accumulated in the earlier
indictment.
[29]
Had the procedure on two or more petitions been running roughly in parallel in
terms of time, an accused could move to conjoin the charges, were the Crown to have
indicted them separately. This would be a highly unusual step, and not one which an
accused would normally contemplate as being in his interests. Were it made, it is unlikely
that the Crown would oppose it. In this case, the first indictment was about to go to trial
when the present complainer reported the events now charged. Had the Crown sought to
delay the trial in order to add the present charges, the appellant would almost certainly have
opposed such a move; given that it would have increased the number of complainers from
two to three. That would not, in itself, have been a good ground of opposition, but delaying
the trial would certainly have been. The Crown have explained why, in terms of the
timings, the present charges were not added to the earlier indictment. The undoubted
inconvenience and stress of facing two trials is a factor which must be taken into account in
assessing matters. That is, of course, something which, in a different evidential state, may
have occurred in any event. When balanced with the public interest in ensuring that what
are relatively serious charges are prosecuted, it cannot be said that the actings of the Crown
in proceeding with a second indictment which involves different charges and a different
complainer, and adding the docket for evidential reasons, were oppressive.
13
The European Convention
Article 6.2
[30]
The presumption of innocence in Article 6.2 operates to ensure, amongst other
things, the application of the burden and standard of proof during a criminal trial (Allen v
United Kingdom (2016) 63 EHRR 10 at para 93). It also prevents any public officials, or the
court, from making any premature expressions of the appellant's guilt. In relation to the
indictment in this case, the presumption will be applied to the trial of the charges.
[31]
Outwith the context of the original criminal trial, and in order to ensure that the
presumption of innocence in Article 6.2 is practical and effective, there is an implied
obligation on public officials and authorities to continue to refrain from treating persons,
who have been acquitted of a criminal charge, as if they were guilty of that charge (Allen at
para 94, followed in Pasquini v San Marino (No. 2) [2020] ECHR 743 at paras 33 and 48-49).
According to R (Hallam) v Justice Secretary [2020] AC 279, the sole relevance of the
presumption, once the original criminal proceedings are concluded, is to prohibit the
authorities from asserting that the acquitted person should have been convicted. If that were
the correct interpretation of the extent of Article 6.2, the continuing application of the
presumption could have no bearing on the present proceedings because it is not being
suggested that the appellant should have been convicted of the act libelled in the docket.
[32]
The dissenting judgment of Lord Reed in R (Hallam) points to a broader application
of the presumption to post-acquittal proceedings when it can be shown that there is a link
between the acquittal and the subsequent proceedings. In cases in which civil proceedings
had followed the acquittal, Allen (at para 104) had held that the necessary link would be
established in relation to subsequent proceedings if the:
14
"subsequent proceedings require examination of the outcome of the prior criminal
proceedings and, in particular, where they oblige the court to analyse the criminal
judgment; to engage in a review or evaluation of the evidence in the criminal file; to
assess the applicant's participation in some or all of the events leading to the criminal
charge; or to comment on the subsisting indication of the appellant's possible guilt".
The idea is that, if the civil proceedings call into question the acquittal, then Article 6.2 will
be both engaged and breached.
[33]
Care must be taken when applying general dicta to different situations. Allen and
Pasquini were both concerned with subsequent civil proceedings, notably the award of civil
compensation following acquittals in the criminal courts. It was held in both cases that,
notwithstanding the existence of a link between the criminal and civil proceedings, the
application of Article 6.2 did not mean that a civil determination against an acquitted person
was precluded even although it involved another examination of the person's participation
in the relevant events (see eg Pasquini at para 52). What was made clear was that the later
civil court had to take care not to make any statement which imputed criminal liability for
the acts under consideration. As was said in Allen, after an exhaustive analysis of the
various situations in which the post-trial aspect of the presumption in Article 6.2 had been
hitherto been analysed:
"125. ... there is no single approach to ascertaining the circumstances in which that
Article will be violated in the context of proceedings which follow the conclusion of
criminal proceedings. As illustrated by the Court's existing case-law, much will
depend on the nature and context of the proceedings in which the impugned
decision was adopted.
126.
In all cases and no matter what the approach applied, the language used by
the decision-maker will be of critical importance in assessing the compatibility of the
decision and its reasoning with art 6(2)..." (see also Pasquini at para 51).
In R (Hallam), Lord Reed illustrated (at paras 157 to 160) the importance of th is use of
language under reference to two similar Norwegian cases; one of which involved an
15
imputation that the person had committed the offence of which he had formerly been
acquitted and the other which did not.
[34]
In this case, the court is not considering subsequent civil proceedings. It is dealing
with subsequent criminal proceedings. Article 6.2 is engaged in relation to the charges. The
docket averments are clearly linked to the charges, but the question is whether they are
linked to the earlier acquittal in the sense explained in the European jurisprudence sense of
impugning it. The docket averments are not so linked. There is no question of the court
reviewing the outcome of the prior criminal proceedings. There is no need to mention the
prior proceedings in any forthcoming trial, although the appellant may elect to do so. There
will be no analysis of the earlier criminal verdict. There will be no review or evaluation of
the testimony in the previous criminal trial, although it may be referred to if an
inconsistency appears. There will be an assessment of the appellant's participation in the
events which led to the former criminal charge, but that will only be in the limited context of
determining whether that participation met the test for mutual corroboration relative to the
charges libelled in the indictment. It cannot, and will not, call into question the correctness
of the previous acquittal.
[35]
For these reasons, the court does not consider that the use of a docket, which
contains averments about an event of which the accused has been acquitted, amounts to a
breach of the presumption of innocence in Article 6.2. In that respect it agrees with the
decision of Lord Weir in HM Advocate v DE (unreported) IND/2020-2608.
Article 8
[36]
The raising of compatibility issues is, along with other preliminary issues, regulated
by statute. Since the issues here involve an attack on the competency of the docket and the
16
admissibility of the relative evidence, they required to be raised by way of preliminary issue
minute and dealt with at a first diet (1995 Act, ss 71(1C)(2) and 79(1) and (2)(a)(i) and (b)(iv)).
This is how the appellant proceeded in relation to the common law and Article 6
contentions. These were duly determined by the sheriff. In order to raise these issues before
this court in advance of a conviction, leave to appeal from a decision of the court at first
instance is required (1995 Act s 74(1)(2A)(b)). Since a compatibility issue based on Article 8
was not raised before the sheriff, it was neither decided by him nor was leave given to
pursue it in an appeal. The appeal on this ground is therefore incompetent. However, as
there is a subsisting appeal on other grounds already before the court, and the matter could
be raised in the event of a conviction (albeit that leave would be required then too), the court
will address the issue.
[37]
In gauging proportionality for the purposes of the application of Article 8 of the
Convention, it should be borne in mind in limine that, as distinct from the position in
R (Razgar) v Home Secretary [2004] 2 AC 368, the appellant's life is not at risk as a result of the
inclusion of the docket in the indictment or by virtue of the criminal proceedings. Accepting
for present purposes that the prosecution of the appellant may engage his Article 8 right to
respect for his private life, the inclusion of the docket is necessary, as the appellant
conceded, in the interests of the prevention of crime. It may also be in the interests of public
safety and the protection of health and morals. The outcome of the prospective trial will not,
as already explained, result in any statement from the court or the Crown which impugns
the earlier verdict of acquittal. The appellant's reputation in that regard will remain
untainted. The new charges which he faces are relatively serious; they are being prosecuted
on indictment. Having regard to the need to use the evidence of the facts narrated in the
docket as corroboration in order to prove those charges, and to the absence of any other
17
available evidence to provide a sufficiency of evidence, the inclusion of the docket is a
proportionate interference, in accordance with the law, having regard to the legitimate
public interest which is sought to be achieved.
[38]
The court notes the appellant's submissions on the absence of the (rape shield)
protections in section 274 of the 1995 Act, but those afforded to complainers by the common
law remain. This is not, in any event, a matter which adversely affects the appellant. The
potential effect on the docket complainer of an acquittal on the new charges is not his
concern. The court assumes that the position will be adequately explained to her by the
Crown. In short, the court does not consider that the inclusion of the docket amounts to an
infringement of the appellant's Article 8 right.
Conclusion
[39]
For these reasons, the appeal is refused. In advance of the trial the Crown will
require to move the sheriff to allow the docket to be amended by deleting the references to
the acts narrated amounting to a "sexual assault" and to the 2009 Act. The docket should
state simply the facts, evidence of which is potentially corroborative of that of the
complainer in the two charges.
