Stalking accused successfully challenges docket evidence of previous assault on complainer

A sheriff ruled that it would be “prejudicial” to the accused to allow the evidence of a “collateral incident” which was “unnecessary” to the proof of the charge libelled.

‘Fear and alarm’

Laurence Ogilvie had appeared at Dunfermline Sheriff Court on a summary complaint charged with engaging in a course of conduct between 1 January 2019 and 5 May 2019 which caused the complainers “CN” and “ZN” “fear and alarm”, in that he repeatedly walked and drove past the complainers’ address and stopped and stared into the windows of their house, contrary to section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

Attached to the charge was a “docket” which gave notice that the Crown intended to lead evidence at trial that in August 2017 the accused had assaulted CN to his severe injury.

But the accused tendered a preliminary plea, claiming that the Crown’s approach in the present case was “incompetent”.

Sheriff James Macdonald heard that the issues raised in the case had not previously been determined at summary level, meaning the decision could inform future procedure in other cases.

‘Material prejudice’

It was submitted that the use of dockets was regulated by statute, namely section 288BA of the Criminal Procedure (Scotland) Act 1995, which could not apply to the present case as the Scottish Parliament had restricted the application of the provision to sexual offences, and there “no scope” for the operation of the common law.

Even if there remained a common law power to append a docket to a charge, it was not possible in summary procedure.

It was also argued that the Crown’s approach in the present case could “open the floodgates” to a similar approach in future cases.

It was further submitted that the accused was entitled to the benefit of the “presumption of innocence” and that introducing the evidence of the assault would elicit a previous conviction of the accused, which would contravene section 166(3) of the Criminal Procedure (Scotland) Act 1995.

Allowing evidence to be led of the 2017 incident would result in an “unfair trial”, which would cause “material prejudice” to the accused.

It was also argued that the incident should be regarded as “collateral and irrelevant”, and that the evidence was “not necessary” for proving the charge libelled.

‘Inadmissible’

The sheriff held that it was competent to include a docket at common law in summary procedure, but he sustained the plea after ruling that it would be “unfair” to the accused to allow the evidence to be introduced.

In a written judgment, Sheriff Macdonald said: “It is settled that it is competent for the Crown to lead evidence of a crime not charged where it is relevant to proof of the crime libelled, provided that fair notice is given by the prosecutor, irrespective of whether the proceedings are solemn or summary.

“There are instances where it may not be possible to libel the prior incident as a charge. One of those is where – as here – the accused has already been convicted of the other crime.

“As I have identified above, as a general rule the addition of what may be termed a “docket” is already permissible at common law in summary procedure. There is accordingly no arguable basis for any suggestion that the Crown approach in framing the complaint in the present case opens the ‘floodgates’ to a similar approach to be adopted in other cases. What the Crown seeks to do in the present case is not of itself novel.

“In the present case, the proposed evidence is intended by the Crown to provide a basis for one of the complainers to justify his likely evidence of real fear and alarm said to result from the conduct libelled. The Crown says that the complainers had good reason to be afraid of the accused because he seriously assaulted one of them in 2017.

“The Crown approach is therefore misconceived. The 2017 incident does not form part of the course of conduct alleged in this case. What is required by section 39(2) is that the course of conduct, not an extraneous incident, caused fear and alarm to the complainer.

“Accordingly, it is not relevant to the charge on the complaint that there was a prior incident some two years previously. The 2017 incident is collateral and so is inadmissible.”

He added: “In my judgment, it is unfair on the accused in the present case to permit evidence to be led of a collateral incident which is unnecessary to the proof of the charge libelled. That is all the more so where the previous incident is of significantly greater gravity in comparison with the matter the Crown is actually seeking to prove.

“Separately, I take the view that the addition of a serious prior allegation is undoubtedly prejudicial to the accused. In light of the gravity of the earlier allegation, and the Crown’s stated intent to rely upon it as a basis to explain and indeed amplify the fear and alarm said to have been caused to the complainers, I do not see how the Court reasonably can put this prejudice out of its mind and reach a fair verdict.”