Nathan McKenzie v. His Majesty’s Advocate [2024] HCJAC 6

Note of appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to the sheriff court in relation to a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018 which alleged that on various occasions between November 2021 and February 2022 the appellant engaged in a course of behaviour which was abusive of his partner or ex-partner which behaviour consisted of numerous assaults and violent behaviour and Included within the narrative of the charge an allegation that the appellant did “penetrate her vagina with his penis without her consent”. Three preliminary objections to the libel were taken by the appellant:- (1) the libelling of what was in effect a rape was incompetent by virtue of section 3(6) of the 1995 Act; (2) Article 6 of ECHR provides inter alia that an accused had to be given fair notice in failing to give fair notice of the charge against him and the libelling of rape within a domestic abuse charge would be confusing to a jury; and (3) the charge including the reference to a rape was oppressive as no direction by the sheriff to the jury could cure the prejudice arising from the confusion which would be caused. The sheriff repelled the objections and the appellant appealed to the High Court. Here the court refused the appeal. The court referred to the unreported case of D.F. v. H.M.A. 10 August 2021 in which Lord Matthews opined that section 1 of the 2018 Act extended to sexual behaviour and there was nothing incompetent in libelling what amounted to a charge of rape under that statutory provision. As such the court considered that there was no requirement that such a charge be tried in the High Court as section 3(6) of the 1995 Act does not exclude the jurisdiction of the sheriff court in such a case. The court did not consider that such a charge breached Article 6 of ECHR on the grounds of lack of fair notice as the Crown had set out a number of incidents involving abusive behaviour which included non-sexual as well as sexual violence. The court reiterated, under reference to C.A. v. H.M.A. 2023 J.C. 8, what is required for an offence under section 1 to be committed, namely, proof of two incidents of behaviour, with the jury entitled to convict of the remainder of the uncorroborated behaviour libelled, if they formed part of the same course of conduct. The court considered that there was no oppression, it being open for a sheriff to direct the jury on the terms of the indictment and no confusion should arise.