John Watt v. His Majesty’s Advocate [2023] HCJAC 2

Note of appeal against conviction and sentence:-The appellant was convicted after trial at Glasgow High Court of an indictment containing 5 charges of historical sexual abuse relating to 4 complainers aged 7 to 13 years during the period 1973-1987. The appellant was sentenced to a period of 10 years imprisonment reduced from 11 years to reflect the period he had spent in custody following his arrest. The appellant appealed against his conviction on a single ground which passed the sift relating to two charges concerning M, the complainer in charges 1 and 2, being a charge of using lewd, libidinous and indecent practices and behaviour and a charge of rape. Leave to appeal against sentence was granted in the event that the appeal against conviction was successful. In advance of the Preliminary Hearing the defence had lodged an application under section 275 of the Criminal Procedure (Scotland) Act 1995 seeking permission to lead evidence relative to charges 1 and 2, which application was opposed by the Crown and partially refused by the Preliminary Hearing judge.The application sought to admit three chapters of evidence:- (1) that M’s late father  sexually abused her during her childhood, headed a paedophile ring involving prominent members of the legal profession, and  instigated and organised her abuse by members of the ring; (2) that M had made allegations against individuals as early as 2000, the appellant wished to name stub trial,  yet did not make any allegations against the appellant until 2014; and (3) that the appellant did not move to Edinburgh until the late summer of 1978 when he commenced “devilling”  at the Faculty of Advocates and did not meet M’s father until after his admission in 1979. The Preliminary Hearing judge allowed the second chapter relating to the timing of M’s allegations as being relevant to her credibility and  held that the details of the appellant’s professional background as set out in the third chapter were admissible without the need for an application. The first chapter was refused on the basis that the evidence was either irrelevant at common law or prohibited by section 274, the names of the other alleged abusers, their status and how they came into contact with M being irrelevant and the evidence did not meet the section 275 tests for admission in that it did not relate to specific occurrences,  was not relevant to establishing the appellant’s guilt, may distract and confuse the jury, would inappropriately intrude into M’s dignity and privacy and the probative value of the disclosures made by M did not outweigh the risk of prejudice to the proper administration of justice. The appellant did not seek leave to appeal that decision. The appellant lodged a special defence of incrimination alleging that M was identifying a solicitor with the surname “Watt” who lived in Edinburgh at the material time. At the trial a joint minute was entered into agreeing inter alia  that the incriminee resided at a property in Edinburgh that fitted the description of the locus and was photographed with M’s father  in April 1979. It was further agreed that prior to 3rd September 2014 M did not inform anyone that she had been sexually abused by anyone named Watt although had made allegations of abuse by other men and that the appellant commenced devilling in Edinburgh in the late summer of 1978 and was admitted as an advocate on 13 July 1979. On day 5 of the trial during the evidence of M senior counsel for the defence moved to vary the section 275 order and sought to lead evidence about the names of the other alleged abusers and their association with M’s father. The trial judge refused the motion for similar reasons to the preliminary hearing judge. The appellant appealed it being contended that he had been denied a fair trial by being prevented from leading the following evidence:- (a) M had previously made disclosures of abuse and named the abusers; (b) they were members of the legal profession; (c) she could have known them; (d) the appellant was among the last persons to be named despite the allegations against him involving very different circumstances to all the other allegations; (e) the other alleged perpetrators attended “parties” where M said that abuse was committed; and (f) despite the discrepancy, she did not remember the appellant until her last disclosure. On behalf of the Crown it was submitted that:- (i) the existence of a paedophile ring was not part of the Crown case and it would have been no defence for the appellant to establish he was not a member of the ring; (ii) the section 275 application had to concentrate on the statutory tests and here the application was deficient and did not include many of the points raised at the appeal; (iii) the Preliminary Hearing judge applied the correct tests and reached the right decision as the evidence sought to be admitted was collateral and inadmissible at common law; and (iv) the defence had been able to make every point which might reasonably have been made and no miscarriage of justice had occurred. Here the court refused the appeal, The court considered that the application was deficient in two respects, firstly, it did not explain how the evidence in question was relevant to the appellant’s guilt on charges 1 and 2 and, secondly, the application failed to address the balance to be struck between the complainer’s dignity and privacy and the rights of the appellant. The court considered that the Preliminary Hearing judge’s decision could not be criticised given the information available to him at the time the application was made and correctly refused the admission of the evidence regarding the existence of a paedophile ring which was  collateral, irrelevant and inadmissible. The court noted that evidence relating to the significant delay in M’s disclosure regarding the appellant was introduced via the joint minute and that the jury were made aware of the date he commenced devilling, evidence relating to the incriminate and his denied contact with M and no miscarriage of justice had occurred.