His Majesty’s Advocate v. Brian John Laughlin [2022] HCJAC 42

Appeal under sections 107B and 110(1)(e) of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted on a number of charges relating to the alleged abuse of different ex-partners including  three assaults on, and/or rapes of, MM on three occasions between August and September 2017. Corroboration was to be derived from a docket in the following terms:- “on various occasions between ... 1998 and ... 2001, ... at ... Oxford and ... Littlemore, you ... did penetrate the vagina and anus of [NA], your partner, ... with your penis, and, whilst having consensual sexual intercourse wearing a condom, you did remove [the] condom and continue to have sexual intercourse with her without her consent”.The purpose of the docket was to enable the Crown to lead evidence from NA along the lines of her police statement that she had been repeatedly vaginally and anally raped by the respondent over the period in the docket including an occasion when they had intercourse in a hospital room, where NA was recovering from an assault by the respondent, other incidents at the complainer’s mother’s flat, and a single occasion when, after NA had consented to intercourse with a condom, the respondent had removed the condom and continued without her consent. During the trial, when NA was about to be asked about the events referred to in her statement (other than the removal of the condom incident) the respondent objected that the only libel of non-consensual sexual activity concerned the continuation of sexual intercourse after the removal of a condom. The Advocate depute submitted that the terms of the docket were sufficient to cover all the non-consensual behaviour which had been set out in NA’s police statement and there was no lack of fair notice as the police statement had been disclosed. The trial judge sustained the objection on the basis that all non-consensual acts required to be specified either in the indictment or a docket and the only non-consensual conduct referred to in the docket was the incident involving the removal of a condom. The judge noted that the purpose of the libel, including the docket, was to provide fair notice of the evidence to be led and it was not the disclosure of NA’s statement which gave the respondent notice of what evidence was to be led. Thereafter, the Advocate depute moved to amend the indictment to add the word “all” before the words “without her consent” which was opposed and refused on the basis it would change the character of the offence. The Crown appealed against the decision to sustain the objection as docket required to be interpreted against the background of the disclosed police statement and it was clear that the testimony of NA was intended to cover several incidents of non-consensual vaginal and anal penetration. On behalf of the respondent it was submitted that the Crown had elected to libel the events to be proved in a particular way in the docket and that decision would have been reviewed by qualified legal staff on at least five occasions. Further, it was the libel which provided fair notice rather than the disclosure of any police statement and the trial judge had not erred by sustaining the objection and refusing to allow the amendment. Here the court considered that the trial judge had been correct to sustain the objection to the leading of the evidence as the libel in the docket was defective in that it did not cover and give fair notice of the testimony which the Crown sought to adduce relative to the non-consensual sexual activity involving NA, other than any incident involving the removal of a condom. The court concluded that the docket failed to give fair notice that the Crown intended to lead evidence of a series of rapes other than those involving continuing sexual intercourse after the removal of a condom. The court stated that the issue of fair notice is determined by the terms of the libel and cannot be provided by material, including police statements, outside the four corners of the libel, subject to the power of amendment, and these principles apply equally to dockets as they do to the charges. The court considered, however, that the trial judge had erred in refusing to allow the Crown amendment to the docket as it was in the interests of justice for the amendment to be allowed. The court allowed the appeal and allowed the docket to be amended by inserting the word “all” between “with her” and “without her consent”, thus entitling the Crown to lead evidence from NA of the various rapes referred to in her police statement and the case was remitted to the trial judge to proceed.