Crown entitled to use evidence from children’s hearing to prosecute alleged sex offender, but evidence held ‘inadmissible’ due to erroneous legal advice

In the first case of its kind, a High Court judge ruled that while the Crown were entitled to obtain information relating to care and protection proceedings and to rely on that information as evidence, in the circumstances the evidence was “inadmissible” because the accused had been advised by his counsel that his acceptance of grounds for referral would used in a criminal trial.

Children’s Hearing

Lord Matthews heard that the minuter, “NH”, had been indicted at the instance of the respondent, Her Majesty’s Advocate, in relation to two charges of sexual offences in respect of a child, his daughter MN, contrary to sections 18 and 20 of the Sexual Offences (Scotland) Act 2009 (charge 1) and sections 28 and 30 of the 2009 Act (charge 2). 

He also faced charges of assault in respect of two other children and a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

The court was told that in 2017 the complainer in charges 1 and 2 made a disclosure, following which her mother contacted the police.

The matter was investigated and reported to the Crown Office and Procurator Fiscal Service (COPFS), but as the only available evidence was the account given by the complainer Crown counsel marked the case no proceedings.

After the decision not to proceed on charges 1 and 2 a summary complaint was raised in June 2017 in relation to the separate assault charges (charges 3, 4 and 5).

But before that complaint proceeded to trial the circumstances were referred to the Scottish Children’s Reporter Administration (SCRA) and a Children’s Hearing was held in August 2017.

The grounds of referral were predicated on statements of fact which, amongst other things, reflected charges 1 and 2, but they were not accepted by the minuter and his wife and a referral proof was held at Glasgow Sheriff Court in February 2018.

After evidence was heard and having taken advice from his solicitor and counsel, the minuter accepted amended grounds of referral, the supporting facts of which reflected the allegations in charges 1 and 2 on the indictment, specifically multiple occasions of oral rape of the daughter of the accused aged between nine and 13 carried out over a period of some five years.

The amended statement was read out in the presence of the parties by the Reporter’s representative before the grounds were accepted by the minuter through his counsel, acting on instructions which had been given by him. 

The sheriff asked the minuter and the children’s mother individually whether they now accepted the amended grounds and they both confirmed their acceptance. 

Given that the minute was represented by experienced counsel, the sheriff was, quite understandably, satisfied that he understood the consequences in those proceedings of accepting the grounds for referral so he did not ask him directly in terms if he understood the consequences.

He did not administer any warning to the minuter before his acceptance of the amended grounds that his acceptance of these grounds might render him liable to criminal proceedings, and did not warn him that it might be used as evidence against him in criminal proceedings. 

Neither of these warnings is standard practice in referral proofs before a sheriff, and the sheriff was not aware of any such admission being used to found, or as evidence in, criminal proceedings, nor did he specifically consider that matter in the context of this case. 

Thereafter the reporting officer advised the Crown of the developments and the matter was re-reported to COPFS for Crown’s counsel’s opinion on whether it was competent or appropriate to seek to lead evidence of the acceptance of the grounds for referral in order to corroborate the complainer’s evidence on charges 1 and 2.

In April 2018 Crown counsel issued instructions to proceed and an indictment duly followed.

The Crown then instructed the police to obtain statements from the Reporter and requested information from the SCRA in terms of section 179 of the Children’s Hearings (Scotland) Act 2011, which provides that the Principal Reporter must make available to the COPFS on request any information held by the Principal Reporter relating to criminal proceedings which have been commenced, for the purpose of the “prevention or detection of crime”, or the “apprehension or prosecution of offenders”.

However, this was the first time that the Crown had attempted to use what happened in a referral proof before a sheriff in support of criminal proceedings.

Preliminary objection

The respondent submitted a preliminary objection to the admissibility of evidence in accordance with section 79(2)(b)(iv) of the Criminal Procedure (Scotland) Act 1995 and has also raised a compatibility issue covering effectively the same ground.

The advocate depute submitted that while there might exist a common practice that admissions in Children’s Hearings were not led in evidence in criminal trials there was no “established procedure” and there was no authority which deemed such evidence to be inadmissible in criminal proceedings.

The admission amounted to a “statement against interest” made by the accused and was admissible as an exception to the ordinary rule excluding hearsay evidence. 

It was highlighted that there was a statutory framework in place which placed a positive obligation on the Reporter to provide information to COPFS - and that the legislation enacted by Parliament envisaged that situations might arise where the prosecutor required the Reporter to provide information with a view to using that information for the prosecution of offenders.

While there were policy implications of utilising such a procedure, such steps would only be used in “exceptional cases”, as had been acknowledged in an information sharing protocol agreed between COPFS and SCRA, a publicly-available policy document available for download on both organisations’ websites.

Both the statutory framework and the protocol made it clear to practitioners that there existed the “possibility” of information being shared between the two organisations for the purposes of the prosecution of offenders.

The Crown submitted that this was an exceptional case which arose out of the “very serious” nature of the conduct accepted, and the fact that without the evidence of acceptance of the grounds of referral there was an insufficiency of evidence to bring criminal proceedings.

It was further submitted that there was “nothing unfair” in the obtaining of the admission, as the acceptance of the grounds was volunteered by the minuter, who was represented by counsel, and that the lack of a warning about the potential consequences did not of itself render the admission of the evidence unfair or a breach of the minuter’s rights under article 6 of the European Convention on Human Rights. 

But the minuter argued that the approach adopted by the Crown “offended against the principle of legal certainty”.

The Crown had relied on the protocol and the legislation as signposting and authorising the course of action which they now sought to take but that did not appear to have been the view of any other party including SCRA, the sheriff or counsel - no one knew that it was a possibility.

If the acceptance of the grounds of referral was to be relied upon in criminal proceedings the principle against “self-incrimination” would come into play and the court had to warn the relevant party against such a consequence, but no such warning was issued by the court nor by counsel representing the minuter, as was in accordance with normal procedure.

The legal advice was tendered on the basis of commonly accepted procedure and the sheriff confirmed what he understood to be the usual practice, and if the minuter had been advised that the admission could be relied on in criminal proceedings he would not have accepted the grounds.

For the Crown to now rely on the acceptance of the grounds interfered with the safeguards afforded to an accused by article 6 ECHR, it was argued.

The judge held that the “clear purpose” of section 179 of the 2011 Act is to allow material relating to referrals to be given on request to the Crown for the purposes of criminal proceedings and the Crown was entitled to seek the relevant information for the purpose of prosecuting the minuter.

‘Evidence inadmissible’ 

However, the legal advice given to the minuter, to the effect that the information would not be used for criminal proceedings, was wrong and therefore rendered the evidence inadmissible.

In a written opinion, Lord Matthews said: “It is accepted on all hands that material such as this has never been used in a prosecution before. In the first place, there was no statutory provision in relation to the exchange of information prior to 2011 and, in the second place, it may be that considerations of policy have prevented its being done. Thirdly, there may not previously have been a case which could properly be called exceptional.

“Parliament has clearly intended that there should be such an exchange and the purposes are also evident. There is nothing retrospective about the law on which the Crown are seeking to rely. The fact that this is the first time it has been attempted has nothing to do with retrospectively.

“Both COPFS and SCRA have recognised the policy implications of this, hence the information sharing protocol. Having recognised that this will be done from time to time by entering into the protocol, I am surprised, as I have indicated, that SCRA are now arguing that it should not be done at all. 

“It seems to me that if prosecutions were to be maintained in breach of a publicly stated policy then such prosecutions might reasonably be categorised as oppressive or at least unfair. However, I do not consider that the circumstances of this case are in fact in breach of the stated policy.

“In the instant case there was no compulsion on the Minuter to accept the grounds of referral. He had been given advice by his counsel and it was not for the sheriff to go behind that advice and give him a warning any more than it would be for a judge or sheriff to warn an accused that if he pleads guilty to a charge he would render himself liable to a sentence. 

“Having indicated that the acceptance of the grounds had been voluntary and that the Crown were entitled to seek information about it for the purposes of prosecution, one might think that was the end of the matter. However, it is not.

“In my opinion, the crux of the matter is the advice which was given to him.”

He added: “I can well understand why that advice was given, since the acceptance of grounds had never been used in criminal proceedings before, but that was against a background of practice. There is no rule against it. Neither is there any ‘established procedure’. On the contrary, I have found that the law specifically provides for it.

“Thus, while I have categorised the Minuter’s acceptance of the grounds as voluntary, I find that its voluntariness was vitiated since it was predicated upon the advice which was given.

“In this case, an officer of the court has given clear advice which I find to have been wrong. I find that the minuter acted upon that advice and that he would not have done so had he been told that his acceptance of the grounds might be used as evidence in a criminal trial.

“In my opinion, it would be unfair for the Crown to be able to rely on the acceptance of the grounds in these circumstances and, on that limited basis, I uphold the preliminary issue minute.”