Trial of man accused of historical child sex offences deserted due to Crown ‘oppression’

A judge at the High Court in Edinburgh deserted the indictment simplicter after ruling that the Crown had created “oppression” which resulted in an “unfair trial”.

Lord Uist said: “This is a blatant case of the Crown alleging serious sexual crimes by the accused at two addresses for which they had no supporting evidence.

“It is the inexplicable conduct of the Crown which has created oppression in this case and resulted in an unfair trial for the accused.

“I am of the view that the conduct of the Crown has fatally infected this prosecution and that it would be unfair to the accused to allow the Crown to re-indict him with a view to another trial at some unknown date in the future.”

The 58-year-old accused, referred to as “JRD”, had appeared at the High Court in Edinburgh on an indictment containing three charges, which were read in full to jurors by the clerk of court at the outset of the trial in the usual manner.

Two of the charges alleged indecency towards two girls, who were his nieces, aged between eight and 11 and ten and 11, while the third was of raping one of the girls when she was aged 11.

One of the indecency charges featured three separate addresses in Glasgow and was alleged to have occurred between 1969 and 1973.

However, on the first day of the trial one of the complainers, now aged 54, gave evidence of being raped twice at one address and said everything that had happened to her occurred at that house and “nowhere else”.

She explained that it was her grandfather, not her accused uncle, who had done things to her at the other addresses.

After the complainer left court the judge asked the Crown whether the evidence of the complainer that the accused had done nothing to her at any other address had come as a surprise to him, but the advocate depute explained that the witness had given a precognition to the effect that everything she could remember she recalled happening at the one particular address.

Lord Uist said no attempt was made by the Crown to remove the “unwarranted allegations” referring to the two other houses in Glasgow at either the stage of preliminary hearings or prior to the leading of the woman’s evidence.

The judge said the Crown had included allegations of serious criminal conduct at two addresses for which they had “no evidential foundation”.

He said: “I regard this as unconscionable, reprehensible and indefensible conduct on their part.”

The accused’s defence counsel argued that there had been such “serious prejudice” to the accused by the inclusion of the unwarranted allegations and their having been read to the jury to amount to oppression by the Crown with the consequence that the court should desert the indictment simpliciter.

While the advocate depute accepted that, in general, it amounted to oppression for the Crown to include allegations for which they had no evidential foundation in an indictment and stated that he knew of no case where the court had been satisfied that there was oppression and yet allowed the prosecution to continue, he argued that there “no oppression” in this case.

He submitted that, as the terms of the precognition had been disclosed to the defence, “justice had been seen to be done” and any prejudice to the accused could be adequately dealt with by the court.

It was accepted by both defence counsel and the advocate depute that the decision over whether to proceed with a prosecution was within the “discretion of the Lord Advocate”, but that the court retained an “inherent power” to prevent a case proceeding to trial where it would be oppressive and unfair to the accused to allow the trial to proceed.

The judge noted that the Crown included in charge 1 allegations of serious sexual crimes at two addresses “which the complainer had made clear at precognition she could not speak to, and to which she did not speak in her evidence”.

Although it was open to the Crown to remove the allegations before the commencement of the trial it did not do so and the jury were made aware of the allegations when the indictment was read to them.

In a written opinion, Lord Uist said: “As I am satisfied that there has been oppression I must now consider what I should do about it. There are three options open to me: first, to allow the trial to proceed without taking any action; secondly, to desert the indictment pro loco et tempore; and thirdly, to desert the indictment simpliciter. Desertion pro loco et tempore would permit the Crown to raise a fresh indictment without the unwarranted allegations, whereas desertion simpliciter would bring the prosecution to an end for all time.

“In determining which course to follow I take into account not only the nature of the oppression by the Crown but also that the charges relate to conduct alleged to have taken place over 42 years ago and that the accused first appeared on petition on 6 May 2014. I am of the view that the conduct of the Crown has fatally infected this prosecution and that it would be unfair to the accused to allow the Crown to re-indict him with a view to another trial at some unknown date in the future. I shall therefore desert the indictment simpliciter.”