In the Scottish Courts
| DOI | 10.1177/002201838204600404 |
| Date | 01 November 1982 |
| Published date | 01 November 1982 |
| Subject Matter | Comments on Cases |
IN
THE
SCOTTISH COURTS
Undoubtedly the major event in the Scottish courts over the past
few months was what became known as the "Glasgow rape
case".
Now that the trial has taken place, it is time to look back with the
benefit
of
hindsight on one
of
the most extraordinary happenings
in Scottish criminal justice for many years. Media interest has
of
course centred on the sensational
and
sordid aspects
of
the trial but
little examination has been made so far
of
anumber
of
important
legal issues which were raised throughout the proceedings. The case
is shortly to be reported in the Scots
Law
Times under the name H.
v. Sweeney &Others.
The factual background was highly exceptional. In May
1981
three youths were indicated at the instance
of
the Lord Advocate to
stand trial at Glasgow High
Court
on charges
of
rape and assault.
The trial was, however, postponed until the
June
sitting when it
was discovered
that
the complainer was unable to give evidence
because
of
her mental condition
and
the stress which the Crown
psychiatrist felt she would experience in having to come to court.
The indictment was allowed to fall and in September
1981
it was
concluded
that
the complainer's condition was unlikely to improve
materially in the foreseeable future. There seemed no prospect
of
being able to proceed to trial in the near future, so the Crown
decided that it would not be justifiable to keep the possibility
of
prosecution hanging over the accused for an indefinite period.
Letters were therefore sent to each accused (who had been on bail
throughout) indicating
that
the Crown would
not
be proceeding
further; these letters had the effect
of
barring the Crown from
raising a further indictment (see Thom v. H.M. Advocate, 1976
J .C. 48; (1976) 40 J
.c.t,
263).
In early
January
1982 an English judge
took
the amazing step
of
fining an accused who was convicted before him
of
the crime
of
rape. The Scottish newspapers, looking for something Scottish to
say
about
rape, discovered
that
three youths who had been charged
with this crime, had apparently walked free because
of
executive
discretion. The story
of
"Miss
X"
was soon widely disseminated in
the press; questions were asked in Parliament and Mr. Nicholas
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