Introduction

The case of RR v Her Majesty's Advocate and LV Respondents [2021] ScotHC HCJAC_21 was adjudicated by the Scottish High Court of Justiciary on March 18, 2021. The petitioner, identified as RR, initiated a petition to the nobile officium challenging the decisions made by the Crown concerning the admissibility of certain evidence under section 275 of the Criminal Procedure (Scotland) Act 1995. The crux of the dispute revolved around the petitioner’s right to be informed and heard in proceedings that significantly impacted her privacy and dignity, particularly in the context of allegations of sexual offences. The petition highlighted potential infringements of Article 8 of the European Convention on Human Rights (ECHR) and invoked provisions of the Victims and Witnesses (Scotland) Act 2014 and the Victims' Rights Directive 2012/29/EU.

Summary of the Judgment

The Scottish High Court of Justiciary, presided over by Lord Carloway, examined RR's petition challenging the decision to grant a section 275 application without her prior notification or opportunity to contest it. The court acknowledged the petitioner’s assertions that her rights under Article 8 of the ECHR and relevant Scottish legislation were potentially violated due to the lack of effective participation in the preliminary hearing. While recognizing the complexities of the adversarial criminal process, the court ultimately found the petition competent and granted part of RR's prayer. Specifically, it declared that the decision to admit certain evidence under section 275 was "wrong, unjust and contrary to law," thereby quashing that part of the application and mandating a reconsideration that would allow RR to present her position. However, the court did not proceed to evaluate the merits of the section 275 application itself, emphasizing that such determinations remained within the procedural confines of criminal appeals and the legislature’s purview.

Analysis

Precedents Cited

The judgment extensively referenced several precedential cases to underpin its reasoning:

• Anderson v HM Advocate (1974 SLT 239): Established the boundaries for the application of the nobile officium, emphasizing its use in extraordinary or unforeseen circumstances.
• Scottish Criminal Cases Review Commission v Swire (2016 JC 38): Addressed the participation rights of victims in criminal proceedings, reinforcing that victims are not direct participants unless specified by legislation.
• Wan Ping Nam v Minister of Justice of the Federal German Republic (1972 JC 43): Highlighted the conditions under which the nobile officium can be exercised without conflicting with statutory schemes.
• Raitt: Independent Legal Representation in Rape Cases (2013 Crim LR 729): Demonstrated international trends towards providing representation and participatory rights to victims in rape cases.
• Y v Slovenia (2016) 62 EHRR 371: Emphasized the importance of balancing victims’ rights with fair trial guarantees for the accused under the ECHR.

These precedents collectively informed the court’s approach to balancing procedural fairness, statutory mandates, and human rights obligations, particularly in cases involving sensitive evidence and victim participation.

Legal Reasoning

The court's legal reasoning centered on the interpretation of statutory provisions, the implementation of EU directives, and the obligations under the ECHR. The judgment meticulously dissected the relationship between the Criminal Procedure (Scotland) Act 1995, the Victims and Witnesses (Scotland) Act 2014, and the Victims' Rights Directive 2012/29/EU, concluding that:

• Competency of the Petition: The court affirmed that RR’s petition was competent as it sought relief under the nobile officium, given the absence of alternative remedies and the extraordinary nature of the circumstances.
• Directive Implementation: The court held that national legislation had adequately transposed the Victims' Rights Directive into Scots law via the 2014 Act, and there was no prerogative to invoke the Directive directly to override statutory provisions.
• Article 8 Rights: While acknowledging that section 275 applications engage the petitioner’s Article 8 rights concerning privacy and dignity, the court ruled that these rights do not inherently grant the petitioner the status of a party in criminal proceedings. Instead, effective participation can be achieved through procedural adjustments that ensure the complainer's position is adequately represented.
• Role of the Crown: Emphasized that it is incumbent upon the Crown to ascertain and present the complainer's position during hearings involving section 275 applications, ensuring that the court is informed and that the complainer's rights are respected without necessitating her direct participation in the proceedings.

This nuanced interpretation underscores the court’s commitment to upholding victims' rights within the framework of existing legal structures, advocating for procedural reforms that enhance participant representation without overstepping legislative boundaries.

Impact

The judgment sets a significant precedent in the realm of criminal procedure, particularly concerning the rights of complainers in sexual offence cases. The key impacts include:

• Enhanced Victim Participation: Establishes the necessity for procedural mechanisms that allow victims to be informed and heard in applications affecting their privacy and dignity, thereby promoting fairness and transparency in the judicial process.
• Procedural Reforms: Implicates potential amendments to preliminary hearing procedures, mandating that the Crown notify victims of section 275 applications and present their positions, thereby aligning Scottish practice with broader human rights obligations.
• Legislative Considerations: May prompt legislative bodies to revisit and possibly revise statutory provisions to further enshrine victim participation rights, drawing inspiration from comparative jurisdictions that grant victim status within proceedings.
• Influence on Future Cases: Provides a judicial framework for assessing the balance between accused defendants' fair trial rights and victims' Article 8 protections, guiding courts in similar cases to ensure victims are not disenfranchised within the adversarial system.

Overall, the judgment advances the discourse on victims' rights in criminal proceedings, advocating for procedural safeguards that enhance victim dignity and participation without undermining the foundational principles of the adversarial system.

Complex Concepts Simplified

Several intricate legal concepts are pivotal to understanding this judgment. Below is a simplification of these key terms:

• nobile officium: A general supervisory power of the court to correct miscarriages of justice in exceptional or unforeseen circumstances where no other legal remedies are available.
• Section 275 Application: A legal provision allowing the court to admit evidence that is otherwise restricted under section 274, especially relevant in sexual offence cases to assess the relevance and probative value of certain evidence.
• Article 8 of the ECHR: Protects individuals' rights to respect for their private and family life, home, and correspondence, allowing interference only when necessary and proportionate for the protection of others' rights.
• Victims' Rights Directive 2012/29/EU: An EU directive aimed at establishing minimum standards for the rights, support, and protection of victims of crime, including their right to participate effectively in criminal proceedings.
• Adversarial System: A legal system where two advocates represent their parties' positions before an impartial judge or jury, with each side bearing the burden of proof.
• Balancing Exercise: A judicial process where competing interests (e.g., defendant's right to a fair trial vs. victim's right to privacy) are weighed to determine the admissibility and relevance of evidence.

Understanding these concepts is essential to grasp the court’s arguments and the broader implications for criminal procedure and victims' rights.

Conclusion

The judgment in RR v Her Majesty's Advocate and LV Respondents marks a pivotal step in fortifying the participatory rights of victims within the Scottish criminal justice system. By recognizing the necessity for victims to be informed and heard in proceedings that directly affect their privacy and dignity, the court has underscored the importance of balancing victims' Article 8 rights with the procedural protections afforded to defendants. While the court refrained from overhauling the adversarial framework, it emphasized the role of the Crown in ensuring victims are adequately represented during key judicial processes. This decision not only aligns Scottish practice with contemporary human rights standards but also paves the way for potential procedural reforms aimed at enhancing fairness and respect for victims in criminal proceedings. The case serves as a critical reference point for future litigations and legislative considerations, highlighting the evolving landscape of victims' rights in the pursuit of justice.