Her Majesty’s Advocate v. Ronald James Alexander Adams [2021] HCJAC 19

Crown appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:- On 6 November 2018 the respondent was indicted to a Preliminary Hearing at Glasgow High Court in relation to 5 charges relating to GA:- (1) indecent assault to injury in Dalbeattie and Castle Douglas between 1999 and 2010; (2) sexual assault to injury, contrary to section 3 of the Sexual Offences (Scotland) Act 2009 at Castle Douglas in 2011; (3) assault and rape to injury in Dalbeattie in December 1999 or January 2000; (4) assault on various occasions in Castle Douglas between 2004 and 2011; and (5) penetrative sexual assault contrary to section 2 of the 2009 Act in Castle Douglas in August 2011. Also appended to the indictment was a docket which referred to a penetrative sexual assault and rape of CH in Liverpool on 3 January 2016 in relation to which the respondent pled guilty to the sexual assault element but not to the rape at Liverpool Crown Court on 13 February 2017 for which the respondent was sentenced. The respondent challenged the admissibility of evidence relative to the events libelled in the docket by way of a preliminary issue minute and a compatibility minute which maintained that leading that evidence would breach the respondent’s rights under Article 6 of the European Convention; in particular that in Article 6(3)(d) to examine or have examined witnesses against him. It was contended that it would be oppressive for the respondent to stand trial on an indictment to which the docket was attached. Unlike the position in HMA v Moynihan 2019 SLT 370 where the accused had previously been convicted of rape it was contended that the evidence relied upon in respect of the sexual assault and rape elements in the docket would not be capable of challenge, nor could the respondent give evidence of his innocence of these elements and there would be evidence of criminal conduct before the jury in support of the docket offence which would amount to a contravention of the prohibition on the disclosure of previous convictions in section 101 of the Criminal Procedure (Scotland) Act 1995. The Preliminary Hearing judge considered that if the Crown were allowed to lead evidence of the facts relative to the docket offence, the jury would be unaware that he had previously pled guilty to that offence, however, a problem would arise when it came to cross-examination as, in light of his earlier plea of guilty, the respondent could not dispute that evidence and would in effect be at a disadvantage to an accused who had not pled guilty. The Preliminary Hearing judge sustained the objection and ruled the evidence inadmissible whilst observing that there had been a conflict in relation to a number of similar cases decided recently. The Crown appealed against the decision. It was submitted on behalf of the Crown that the Preliminary Hearing judge had erred in holding the evidence inadmissible as the evidence was relevant to the offences charged in the indictment and met the statutory criteria relative to dockets in section 288BA of the Criminal Procedure (Scotland) Act 1995. It was submitted there was no basis for refusing to admit evidence of an act which had previously been established by virtue of an accused’s admission and he had erred in differentiating between leading evidence which had been the subject of a previous guilty plea and evidence which had resulted in a previous guilty verdict. It was submitted that the Crown did not seek to prove or rely on the fact of conviction and any obstacle to an accused’s ability to challenge the evidence was not a result of the earlier plea or finding of guilt but rather from the accused’s position on the evidence. On behalf of the respondent it was submitted that the Preliminary Hearing judge was correct to rule the docket inadmissible as both oppressive and contrary to the respondent’s Article 6 rights. Here the court allowed the appeal. The court considered that any issues in the conduct of the defence case may arise not from the libel in the docket but from the acceptance by the respondent of his guilt of the offence libelled in that docket. The court observed that if the respondent did accept the truth of the plea tendered, that did not prevent him from cross-examining the complainer in the docket only that he could not do so in a way which was inconsistent with the guilty plea. In addition, the respondent was still entitled to argue that the Crown had failed to prove any of the charges on the indictment. The court stated that unlike the case of Cordiner v HMA 1978 JC 64 the respondent was in no way forced to reveal the previous conviction. In HMA v Murdoch, unreported, 28 August 2018, Lord Ericht gave the example of an accused who elected to disclose his previous plea as being indicative of his willingness to plead guilty in circumstances where he did commit the offence.