Edward Dorian v. His Majesty’s Advocate [2023] HCJAC 15

Note of appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:-The appellant was indicted to a Preliminary Hearing at the High Court of Justiciary at Glasgow on 4 July 2022 in relation to various charges of indecency.  On 1 July 2022 the appellant lodged an application under section 275 of the 1995 Act which should have been lodged “seven clear days” prior to the PH. The application sought permission to lead evidence that:

“during the incident ... the applicant performed oral sex on [the complainer], at her request”. At the PH the judge refused to consider the 275 application given it came less than 7 clear days in advance of the PH. It was submitted that the “special cause” said to justify consideration of the late application was that counsel had made a mistake about her dates due to pressure of business and the number of cases she had following COVID and had misdiarised the PH for 8 July rather than 4 July. At the PH the judge did not hear from the Crown on the application as she did not consider that a mistake about the date of the PH amounted to special cause. It was submitted on behalf of the appellant that the PH judge erred in holding that an administrative error made by counsel, who, like others practising at the criminal bar, was under pressure to deal with the volume of the backlog of cases, did not amount to special cause. The PH judge ought to have had regard to the purpose of the time limit in section 275B, notably the avoidance of ambushes, the prevention of disruption to the proceedings and the desirability of avoiding complainers being advised of likely lines of evidence at a late stage. The Crown did not oppose either the appeal or the application. Here the court allowed the appeal.The court considered that, provided a specialty exists, the search is simply for a “cause”. The test is not whether there is a reasonable excuse, or similar consideration, which explains why the application was late, albeit that may be a relevant factor, cause will be shown if it is demonstrated that admitting the evidence is in the interests of justice and within that consideration will require to be had to the merits of the application, as will the attitude of the Crown to it and the date of any trial that is fixed. In the present case the court considered that the speciality in the case was the error in identifying the correct date for the PH resulting in the due date for lodging the application and cause was shown because it was in the interests of justice to allow the appellant to introduce the evidence, which the PH judge regarded as relevant, there being no prejudice to either the Crown or the complainer in that there would have been no additional enquiries necessary beyond that involving the complainer.