Jamie Fisher v. His Majesty’s Advocate [2022] HCJAC 43

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to Paisley Sheriff Court in relation to two alleged contraventions of section 3 of the Sexual Offences (Scotland) Act 2009 involving the complainer, RK, in Paisley in December 2017 and January 2018. A docket was appended to the indictment giving notice that the Crown intended to lead evidence of another sexual assault, on LP in Paisley in April 2018. The appellant had been acquitted in earlier proceedings of the conduct referred to in the docket, with the conduct referred to in the two charges on the indictment only reported to the Crown around 19 days prior to the trial for the docket conduct. The appellant had lodged four minutes in relation to the docket, three of which are relevant in the appeal against their refusal at first instance by the sheriff, it being contended that the docket was:- (a) incompetent; (b) oppressive; and (c) incompatible with Article 6 of the European Convention. The appellant appealed against the sheriff’s refusal of the Minutes and sought to add a further argument based on Article 8 of ECHR. It was contended on behalf of the appellant that the inclusion of the docket:- (i) was contrary to the common law principle that, where a point had been determined by the courts, it was not open to the parties to re-litigate the same point; (ii) violated the presumption of innocence contrary to Article 6; and (iii) breached the appellant's Article 8 right to respect for his private life, in particular his reputation. On behalf of the respondent it was submitted that the terms of section 288BA were clear and allowed the Crown to use the docket procedure to lead evidence relating to an allegation of which the appellant had been acquitted after trial, provided that it was “connected with a sexual offence charged in the indictment” and the statutory wording encompassed the inclusion of acts amounting to a sexual offence of which the appellant had previously been acquitted. It was further submitted that the Crown sought to rely on the evidence of the docket complainer in support of the substantive charges (to corroborate the charges on the indictment) and the appellant was not being tried for the conduct libelled in the docket and no verdict on the conduct would be returned and, as such, no question of the presumption of innocence arose. It was submitted that the high test for oppression was not met, it was not oppressive to not bring all outstanding charges on one indictment. In relation to the Article 8 arguments it was submitted that no such point had been taken before the sheriff and thus could not form part of any appeal here. Here the court refused the appeal. The court reiterated that if there are facts which are so similar in terms of time, place and circumstances such as could demonstrate that the individual incidents libelled were component parts of one course of conduct persistently pursued by the accused those facts may be proved in order to provide corroboration. Usually, the facts which provide mutual corroboration are libelled as charges on an indictment and often the jury will require to either find an accused guilty of more than one charge or acquit him of all charges. In certain circumstances eg where the court has determined that there has been insufficient evidence to prove a particular charge and sustains a no case to answer submission the evidence in relation to that charge may remain relevant to proof of another charge and is available for that purpose in that the evidence, in relation to a charge which has resulted in an acquittal, does not become incompetent or inadmissible in relation to other offences which are libelled. Similarly, the court observed that where a person has been previously acquitted or convicted of a charge, it is open to the Crown to libel that conduct in a docket for evidential reasons, even although they cannot seek a conviction on the conduct.. Section 288BA clearly sets out the means by which the Crown can do so. Given the appellant cannot be convicted of the offence of which he has already been acquitted the issue of res judicata does not arise. Further, the presumption of innocence applies to the charges libelled and remains in place, the sole purpose of the docket being to provide a possible source of corroboration for the substantive charges. The court went on to state that it was not oppressive for the Crown to proceed with a second indictment which involved different charges and a different complainer only adding the docket for evidential reasons. In relation to the Article 6 argument the court stated that the correctness of the previous acquittal will not be reconsidered and the use of the docket does not breach of the presumption of innocence in Article 6.2. In relation to the Article 8 argument the court considered that it was incompetent in light of it not being raised before the sheriff. Nevertheless, the court went on to consider the merits of the argument and was of the view that the inclusion of the docket was a proportionate interference with the appellant’s article 8 rights, in accordance with the law, having regard to the legitimate public interest which is sought to be achieved, namely, the prevention of crime.