HM Advocate v RS
| Jurisdiction | Scotland |
| Judge | Lord Woolman,Lord Pentland,Lord Matthews |
| Judgment Date | 13 June 2022 |
| Court | High Court of Justiciary |
| Docket Number | No 1 |
[2022] HCJAC 41
Lord Woolman, Lord Pentland and Lord Matthews
Justiciary — Procedure — Representation — Respondent prosecuted for non-sexual offences — Two offences including allegations that respondent digitally penetrated complainer — Whether respondent should be prohibited from conducting case in person — Whether there appeared to be substantial sexual element in alleged commission of offences — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 288C
Section 288C(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’) prohibits, inter alia, an accused charged with a sexual offence from conducting his case in person. Section 288C(2) provides a list of sexual offences to which sec 288C applies. Section 288C(4) provides, where in the case of any offence the court is satisfied that there appears to be such a substantial sexual element in the alleged commission of the offence that it ought to be treated in the same way as a sexual offence specified in subsec (2), the court shall, either on the application of the prosecutor or ex proprio motu, make such an order.
RS was indicted with a number of charges arising from his prior relationship with the complainer, including breach of the peace and threatening or abusive behaviour contrary to sec 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13). Part of the libel of two of the charges included allegations of digital penetration by the respondent of the complainer's vagina in an apparent attempt to identify signs of sexual activity. There were also allegations that the respondent on various occasions demanded that the complainer have sex with him and uttered abusive remarks if she refused. The Crown sought an order under sec 288C(4) of the 1995 Act, prohibiting the respondent from conducting his own defence. The sheriff refused to make such an order and noted that there was no indication that the respondent intended to conduct his own defence. The sheriff further held that the sexual demands allegedly made by the respondent were not a substantial element of the charges and that the digital penetration was not of a sexual nature but was more in keeping with a perverse medical examination forming part of the respondent's alleged coercive and controlling behaviour. The Crown appealed to the High Court of Justiciary.
The Crown argued that it had taken a pragmatic approach in seeking the order to ensure that any trial would not be interrupted and, further, that the word “substantial” in sec 288C(4) of the 1995 Act referred to the seriousness of the sexual conduct.
The respondent argued that “substantial” denoted the threshold, meaning the extent to which the conduct could be said to be sexual in nature.
Held that: (1) the court was not precluded from making a sec 288C order merely because an accused person was represented at the time of such an order being sought (para 9); (2) the test for “substantial sexual element” was not whether the sexual element was a substantial part of the charge but whether the charge contained a sexual element which was itself substantial (paras 10, 11); (3) in all the circumstances, there had been a substantial sexual element in the charges (paras 12–18); and appeal granted.
Observed that parties should treat first diets as the end of their preparations, not the beginning, ideally with the court being in a position to deal with all applications when the case first calls (paras 21–23).
McCarthy v HM Advocate 2008 SLT 1038 referred to and Hay v HM Advocate2014 JC 19adopted.
Ferguson v HM Advocate [2021] HCJAC 51; 2022 SLT 151; 2022 SCCR 26
Grainger v HM Advocate [2005] HCJAC 11; 2006 JC 141; 2005 SLT 364; 2005 SCCR 175
Hay v HM Advocate [2012] HCJAC 28; 2014 JC 19; 2012 SLT 569; 2012 SCCR 281; 2012 SCL 492
JGW v HM Advocate [2013] HCJAC 15; 2013 SCCR 152; 2013 SCL 253; 2013 GWD 5-137
McCarthy v HM Advocate [2008] HCJAC 56; 2008 SLT 1038; 2008 SCCR 902; 2008 SCL 1325
McHugh v Harvie [2015] HCJAC 86; 2015 SCCR 430; 2015 SCL 987; 2015 GWD 34-556
Sorrell v Procurator Fiscal, Greenock [2020] SAC (Crim) 2; 2020 GWD 11-165
Sutherland v HM Advocate [2017] HCJAC 22; 2017 JC 268; 2017 SLT 721; 2017 SCCR 268; 2017 SCL 502
RS was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate with a number of charges arising from his prior relationship with the complainer, including breach of the peace and threatening or abusive behaviour contrary to sec 38 of the Criminal Justice and Licensing (Scotland) Act 2010. After sundry procedure, the Crown sought an order under sec 288C(4) of the Criminal Procedure (Scotland) Act 1995 prohibiting the respondent from conducting his own defence. On 22 April 2022, at a continued first diet in the sheriff court at Kirkcaldy, the sheriff (JH Williamson) refused to make such an order. The Crown appealed to their Lordships in the High Court of Justiciary.
The appeal called before the High Court of Justiciary, comprising Lord Woolman, Lord Pentland and Lord Matthews, for a hearing, on 8 June 2022.
At advising, on 13 June 2022, the opinion of the Court was delivered by Lord Matthews—
Opinion of the Court—
[1] The respondent has been indicted in the sheriff court at Kirkcaldy on seven charges. All of them arise out of his relationship with his former partner. Only charges 1 and 4 are relevant to the present appeal.
[2] Charge 1 libels a common law breach of the peace, which includes an...
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