His Majesty’s Advocate v. RS [2022] HCJAC 41

Crown appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:-The respondent was indicted to Kirkcaldy Sheriff Court on seven charges relating to allegations concerning his former partner including:- (a) charge 1 alleged a common law breach of the peace on various occasions between October 2003 and October 2010 including an allegation he inserted his fingers into the complainer’s vagina to check her genitals for sexual activity; and (b) charge 4 alleged a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and contained similar allegations relating to the period from October 2010 until February 2020 and included a further allegation that the respondent on various occasions demanded that the complainer have sex with him and uttered abusive remarks if she refused. The indictment included a docket that the Crown intended to lead evidence that on various occasions between December 1999 and August 2019 the respondent penetrated the complainer’s vagina with his penis without her consent. The Crown sought a section 288C(4) order from the sheriff prohibiting the respondent from conducting his own defence should he at any stage dispense with legal representation and provided a narrative of the evidence which it anticipated the complainer would give at trial including allegations of non-consensual penetration of her vagina with his penis and digital penetration to check her genitals for sexual activity, as libelled in charges 1 and 4. It was contended by the Crown that there was a substantial sexual element to the charges. On behalf of the respondent it was submitted that “substantial” meant something that could subsist by itself and to a real extent, that the sexual demands fell within the general coercive and controlling behaviour libelled and that the digital penetration was not sexual given the respondent’s motivation for doing so in that there was no sexual gratification. The sheriff refused the application on the basis that:- (1) there was no indication that the respondent intended to conduct his own defence; (2) his sexual demands while “not insignificant” were not a substantial element of charge 4; (3) the digital penetration was not of a sexual nature; (4) the complainer was not expected to say the respondent did that as a precursor to sex and was not accompanied by any words, actions or gestures of a sexual nature being more in keeping with a medical examination; and (5) it formed part of the respondent’s coercive and controlling behaviour but it was not sexual and the sheriff observed the Crown had previously agreed such conduct did not amount to sexual activity.The Crown appealed agains the sheriff’s decision. The court allowed the appeal. The court stated that a section 288C order is not precluded merely because an accused person is at that time represented and such an order also provides a complainer with the protections afforded by virtue of section 274 of the 1995 Act. The court observed that if charge 1 specifically libelled indecent assault and charge 4 libelled a contravention of section 2 or section 3 of the Sexual Offences (Scotland) Act 2009 the issue would not have arisen and if they had been the motivation of the respondent would have been irrelevant. In relation to the meaning of “substantial” under section 288C(4) the Crown submitted that it related to the seriousness of the sexual conduct whereas the defence submitted that it meant the extent to which the conduct could be said to be sexual in nature. The court here adopted the same approach as the court ‘s interpretation of “significant sexual aspect” in the context of section 80 of the Sexual Offences Act 2003 and it should simply be given its ordinary meaning and the test is not whether the sexual element is a substantial part of the charge but whether the charge contains a sexual element which is itself substantial. The court considered that even if motivation was relevant, in circumstances like the present where the respondent denied the conduct libelled, the complainer would be faced with invasive and intimate questioning and there was a clear substantial sexual element and the Crown appeal was granted and the case was remitted back to the sheriff to make the section 288C order. A postscript to the opinion highlighted concerns in the delay in the progress of the case and the amount of court time already expended on it. The court observed that:- “[A]s with Preliminary Hearings, parties should treat First Diets as the end of their preparation, not the beginning...”