High Court rejects argument of rapist that trial was unfair due to statements from witness diagnosed with Alzheimer’s disease

About this case:

• Citation:
  [2022] HCJAC 38
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Appellant JB, who was sentenced to eight years and six months’ imprisonment, argued that the Crown had unreasonably delayed in indicting him. Consequently, evidence of the first complainer JB, who was diagnosed with Alzheimer’s disease following a police interview in 2016, was led in a manner that was unfair.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. C Mitchell KC appeared for the appellant and Keenan KC for the Crown.

Urgency about the case

The matter came to the attention of the police in 2016 after the second complainer, NB, who had lived with the appellant in Spain, travelled to Scotland to report it. On 12 July 2016 a DS Burns interviewed the first complainer JB and a statement was noted. At this time, JB did not appear to be confused or have any difficulty with her memory. In late January 2017, JB was diagnosed as suffering from Alzheimer’s disease, but continued to be able to live independently until 2019.

Following a series of delays partially due to an ongoing Spanish investigation, on 24 October 2019 an indictment was served on the appellant. Following service, the Crown sought admission of previous statements made by JB under section 259 of the Criminal Procedure (Scotland) Act 1995 contending that she was medically unfit to give evidence.

The defence opposed the application on the bases that it could not be concluded that she was competent when the statements were made and that their admission would render the trial unfair. However, the Crown application was granted by the preliminary judge, who found there was nothing displacing the proposition that JB was competent at the time of giving her statements. The appellant was then subsequently convicted following trial.

It was submitted for the appellant that the proceedings were unfair and oppressive because of the Crown’s delay in bringing them. It was obvious to the Crown that there was an urgency about the case due to JB’s diagnosis, but the delay was not the fault of the Spanish proceedings nor had the Crown explained it. Further, the directions of the trial judge were not sufficient to cure the prejudice that had been caused by the admission of the statements.

Theoretical argument

Lord Matthews, delivering the opinion of the court, observed: “It is not suggested, as we understand counsel’s submissions, that there was any particular urgency about this case until the Crown became aware of JB’s diagnosis of Alzheimer’s. It would appear that that would have been no later than May 2017. Counsel suggested that the Crown should thereafter have moved more quickly but was understandably unable to say exactly how much more quickly or whether in fact it would have made any difference to the capacity of JB to give evidence.”

He went on to say that “it is no doubt possible to construct a theoretical argument that the Crown could have proceeded more quickly. However, it is entirely speculative to suggest that any delay on their part led to the inability of JB to give evidence in the normal way. Furthermore, it cannot be said that the Crown acted unreasonably, given the existence of the Spanish proceedings which might have affected the decision as to whether to prosecute in Scotland or not. Factored into this, is the question whether the appellant would have returned to Scotland to be placed on petition. As it is, a European Arrest Warrant had to be issued followed by an extradition process.”

Addressing whether the trial had been unfair, Lord Matthews said: “It is now well established that the fact that important, even decisive evidence in a case is led using the provisions of section 259 does not of itself render a trial unfair. The Crown conceded that the evidence of JB was decisive and, assuming that concession to be correct, the issue for us is whether there were sufficient safeguards and counter-balancing factors.”

He concluded: “The statement of JB had been taken by a police officer in a relatively formal way in the first instance at least, and that police officer was available to be cross-examined. The trial judge had given robust directions on the need to exercise caution dealing with hearsay evidence and if anything these directions had been unduly favourable to the appellant. The appellant’s counsel had been able to address the jury and point out the difficulties with JB’s evidence as well as that of NB.”

The appeal was accordingly refused.