Daly v Hm Advocatekeir v Hm Advocate

Held, dismissing the appeals, (1) that although the subject matter of the charges brought against an accused, or of matters mentioned in a docket to the indictment, would affect the scope of the evidence which could be led at trial, which would have to be relevant, the defence was entitled to decide for itself what evidence it wished to lead in accordance with the law governing the admissibility of evidence, without being dependent on decisions taken by the Crown as to the contents of the indictment; that it followed that if the accused in each of the present cases had wished to lead evidence about matters which were not mentioned in the indictment, they had been entitled to do so, provided that the evidence was admissible, which given its nature meant that it had been necessary for them to obtain the permission of the court under section 275 of the Criminal Procedure (Scotland) Act 1995; that, in these circumstances, the Crown’s decisions not to include charges in relation to certain allegations on the indictment, or not to include the allegations in the form of a docket to the indictment, could not be regarded as having in themselves affected the fairness of either trial; and that, accordingly, in considering the compatibility of each accused’s trial with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms the focus was more aptly on the court’s application of the law of evidence (post, paras 33–37).

(2) That a fair trial was one which respected the right of the accused to present a full answer and defence to the charge against him, which depended on his being able to call the evidence necessary to establish his defence and to challenge the evidence called by the prosecution; that it followed that the law of evidence, if it imposed excessive restrictions on the ability of the accused to present his defence and to challenge the evidence relied on by the prosecution, could be incompatible with the right to a fair trial under article 6 of the Convention; that these general principles applied to trials for sexual offences as in any other context, notwithstanding that (i) it was of great importance that the law should give proper weight to the interests of the complainer in a trial for a sexual offence, (ii) it was intolerable that the complainer should be subjected to needlessly intrusive and humiliating questioning and (iii) it was also important that evidence should not be admitted where it was unnecessary to enable the accused to present his defence and might merely prejudice the jury against the complainer; that, therefore, where an accused who was on trial for sexual offences wished to undermine the complainer’s credibility or challenge her testimony in so far as it related to consent, it might be inevitable that a fair trial would involve the complainer being asked intrusive questions about her private life and, in some cases, evidence about intimate aspects of her life being placed before the jury; that, further, although section 275(1)(c) of the 1995 Act importantly enabled the court to guard against the jury’s fact-finding process being distorted by the admission of evidence whose probative value to the defence was outweighed by the risk which its admission presented to the proper carrying out of that process, it was a provision which needed to be applied with care where evidence was of significant probative value; that, seen against this background, the current approach of the Scottish courts to the admission of evidence in trials for sexual offences so as generally to exclude evidence relating to the prior or subsequent sexual behaviour of the complainer or to her credibility, even where it was obviously relevant (in the ordinary sense of the word) and would if accepted significantly strengthen the accused’s defence, was liable to result in violations of the accused’s right to a fair trial under article 6 of the Convention; but that there had been no such violation in the case of either accused, since (i) in the first case consideration of the evidence in question would have distracted the jury from the proper focus of their attention and its absence had not prevented the accused from challenging effectively the first complainer’s credibility and (ii) in the second case the probative value of the evidence in question was outweighed by the risk that it might distort the fact-finding process by prejudicing members of the jury against the complainer (post, paras 169–181, 185, 191, 192).

R v Seaboyer [1991] 2 SCR 577, R v A (No 2) [2002] 1 AC 45, HL(E), Judge v United Kingdom (2011) 52 EHRR SE17, ECtHR, CJM v HM Advocate 2013 SCCR 215, Poropat v Slovenia (Application No 21668/12) (unreported) 9 May 2017, ECtHR, Murtazaliyeva v Russia (2018) 47 BHRC 263, ECtHR (GC), LL v HM Advocate 2018 JC 182, Thomson v HM Advocate (unreported) 13 December 2019, HM Advocate v JW 2020 SCCR 174 and CH v HM Advocate 2021 JC 45 considered.