In HM Advocate v JRD, the Trial Judge deserted a case simpliciter having decided that the Crown acted oppressively in bringing forth allegations against the accused for which there was no evidential basis.
The accused was indicted for trial on three charges. The first two charges related to the same complainer, CD: – (1) that on various occasions he used lewd, indecent and lubidinous practices against CD at three properties (M, S and D Streets) between 1969 and 1973, and (2) that on various occasions in 1973, at the property at D Street, he raped CD. The third charge related to a different complainer.
It became clear during the course of CD’s evidence that she could not speak to any allegation other than two instances of rape at D Street. There was no other sexual abuse there. She was not sexually abused by the accused elsewhere. Police statements given by the complainer which contradicted this position were put to her in the course of her evidence. She maintained that she had not told the police the truth.
So far, the narrative of the case might not appear particularly unusual. However, this was not a case where a complainer had merely departed from her police statements at trial. The Crown appears to have been aware of the complainer’s position from a very early stage. Prior to indicting the case, the complainer indicated in a precognition that the accused had not done anything to her at any other address. The Trial Judge comments as follows: –
“The indictment was served on the accused on 5 February 2015 and preliminary hearings took place at Glasgow High Court on 10 March and 12 May 2015. No attempt was made by the Crown to remove the unwarranted allegations referring to M Street and S Street at either of the preliminary hearings or at any other stage before the leading of evidence from the complainer CD.
“[T]he Crown included in charge 1 allegations of serious criminal conduct by the accused at 66 M Street and 575 S Street for which they had no evidential foundation. I regard this as unconscionable, reprehensible and indefensible conduct on their part.”
The question posed in this case was two-fold. Firstly, was this a case of oppression? The Trial Judge concluded that the Crown, having indicted the accused for a crime for which there was no evidential basis, had acted oppressively.
“The jury were made aware of those allegations when the indictment was read to them. It is the inexplicable conduct of the Crown which has created oppression in this case and resulted in an unfair trial for the accused. The situation which has arisen in this case is quite different from that which arises when a witness unexpectedly fails to speak up to a police statement or precognition without fault on the part of the Crown. This is a blatant case of the Crown alleging serious sexual crimes by the accused at two addresses for which they had no supporting evidence. There is no way that the court can now remove the oppression created by the Crown in this trial.”
Secondly, what, if anything ought to be done? Desertion pro loco et temper would have allowed the Crown to re-indict the accused. The test for oppression is whether the risk of prejudice is so grave that no direction of the trial judge could be expected to remove it. (McFadden v Annan 1992 SCCR 186.) It is quite clear in the present case why the conduct of the Crown was oppressive and that the oppression could not be cured by direction. Why then, could the trial not proceed with a different jury? Had the Crown been allowed to re-indict, or restart the trial, the offending charge could have been removed. Accordingly, any prejudice to the accused by the jury having hear the unwarranted allegations would also be removed. The accused could still receive a fair trial. However, the Trial Judge considered that the conduct of the Crown had been so flagrant that it had “fatally infected” the whole prosecution. The circumstances of the case were also important. The conduct alleged was from 42 years ago and the accused had first appeared on Petition in May 2014. There was no saying when a trial might take place. For these reasons, the Trial Judge concluded that it would be unfair to allow the Crown to re-indict the accused.