High Court rules Crown entitled to libel English guilty plea in Scottish sexual assault trial

Ronald Adams, the respondent, had previously pled guilty to a similar offence in Liverpool Crown Court in January 2016. He argued that he would not be able to dispute the evidence were it to be led at trial.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Drummond Young and Lord Turnbull. The Crown was represented by the Lord Advocate, James Wolffe QC, and the respondent by K Stewart QC.

Right to fair trial

The respondent appeared on an indictment libelling five charges against a single complainer, GA, at the High Court in Glasgow in November 2018. All of the charges related to varying levels of sexual assault, including assault and rape to injury and penetrative sexual assault, that had occurred at addresses in Dalbeattie and Castle Douglas between 1999 and 2010.

Attached to the indictment was a docket referring to the penetrative sexual assault and rape of another woman, CH, in Liverpool in January 2016. In 2017, the respondent pled guilty to sexual assault but not to rape in Liverpool Crown Court, and was sentenced by the court on that basis.

In advance of the preliminary hearing, counsel for the respondent filed a preliminary issue minute challenging the admissibility of evidence relating to the events libelled in the docket, as well as a compatibility minute maintaining that leading that evidence would breach the respondent’s right to a fair trial under Article 6 of the ECHR.

It was contended that the evidence relied upon in respect of the sexual assault and rape elements in the docket would not be capable of challenge, nor could the respondent give evidence of his innocence of these elements, effectively contravening the prohibition on the disclosure of previous convictions under section 101 of the Criminal Procedure (Scotland) Act 1995.

Having considered the issues, the preliminary hearing judge reasoned that, having pled guilty, the respondent could not legally or ethically dispute the docket evidence if it were led at trial, and therefore ruled it to be inadmissible. He also considered that the leading of that evidence would be unfair.

It was submitted for the Crown that the preliminary hearing judge had erred in holding the evidence inadmissible. There was no basis for refusing to admit evidence of an act which had previously been established by virtue of an accused’s admission. Further, the judge had erred in concluding that there was a difference of principle between leading evidence of facts which had been the subject of a previous guilty plea and evidence of facts which had resulted in a previous guilty verdict.

The respondent adopted the reasoning of the preliminary hearing judge that the libelling of the docket offence was oppressive. The jury would be invited to apply mutual corroboration when the Crown had accepted that, in relation to the libel in the docket, no rape had taken place.

Not precluded from cross-examination

The opinion of the court was delivered by Lord Carloway. Citing an unreported case with similar facts from 2018, HM Advocate v Murdoch, he said: “As Lord Ericht reasoned in Murdoch, the problems, if any, in the conduct of the defence case arise not from the libel in the docket but from the acceptance by the respondent of his guilt of the offence libelled in that docket. That would present an ethical problem irrespective of a previous plea of guilty.”

He continued: “The difficulty arises only if the respondent accepts the correctness of the previous plea. In that respect, the situation does not differ from that where an accused accepts his guilt in respect of a part of the libel of an indictment. Even if the respondent does accept the truth of the plea tendered, that does not preclude him from cross-examining the complainer in the docket, only that he could not do so in a manner inconsistent with the acceptance of the truth of the guilty plea.”

Applying Lord Ericht’s reasoning to the case at hand, he then said: “The respondent is not prevented from presenting arguments that the Crown have failed to prove one or more, or all, of the charges on the indictment or that libelled in the docket or that mutual corroboration should not apply because the applicable legal test has not been met.”

Lord Carloway concluded: “There is no material difference between the current situation and one in which the accused has previously been found guilty. As distinct from Cordiner v HM Advocate (1978), there is no element of forcing the respondent to reveal the previous conviction. That conviction should not be revealed unless the respondent elects to take that course and present the argument, which Lord Ericht referred to, that his previous plea was indicative of his preparedness to accept guilt but only when he had committed the offence.”

For these reasons, the appeal was allowed. The objection to the admission of the docket evidence was therefore repelled, as was the contention of unfairness in the compatibility minute.