Clarifying Disclosure Obligations: The Role of Victim Impact Statements in Scottish Criminal Justice

Introduction

The case of JB vs. HMA ([2025] HCJAC 1) adjudicated by the Scottish High Court of Justiciary presents a significant examination of disclosure obligations within the Scottish criminal justice system. The appellant, JB, was convicted of two grievous charges: the rape of his former wife and the sexual assault and rape of his daughter. The primary contention in the appeal revolved around the non-disclosure of the Victim Impact Statement (VIS) prior to the trial, which the defense argued contained material inconsistencies that could have undermined the prosecution's case.

This commentary delves into the nuances of the Judgment, examining the court's rationale in refusing the appeal, the interpretation of disclosure obligations under the Criminal Justice and Licensing (Scotland) Act 2010, and the broader implications for future cases involving Victim Impact Statements.

Summary of the Judgment

On April 26, 2024, JB was convicted on two counts of sexual offences under the Sexual Offences (Scotland) Act 2009. He received concurrent sentences of four years for the rape of his former wife and seven years for the sexual assault and rape of his daughter. The appeal, lodged post-conviction, challenged the Crown's failure to disclose the Victim Impact Statement (VIS) of the first complainer—JB's former wife—before the trial. The defense posited that the VIS contained material inconsistencies that could have been leveraged to challenge the complainer's credibility, potentially influencing the trial's outcome.

The High Court, delivered by Lord Matthews, thoroughly examined the claims of non-disclosure. The court assessed whether the information within the VIS was disclosable under Section 121 of the Criminal Justice and Licensing (Scotland) Act 2010. Ultimately, the court concluded that the VIS did not contain material information that would undermine the prosecution's case or bolster the defense's position significantly enough to warrant its pre-trial disclosure. Consequently, the appeal was refused.

Analysis

Precedents Cited

The Judgment references Section 121 of the Criminal Justice and Licensing (Scotland) Act 2010, which delineates the prosecutor's obligations concerning the disclosure of relevant information. Additionally, the court considered the Code of Practice issued by the Lord Advocate, particularly Paragraph 8.1, which clarifies the scope of materials subject to disclosure under solemn proceedings.

While the Judgment did not cite specific prior cases, it implicitly relies on established principles regarding the balance between the prosecution's duty to disclose and the protection of victims' privacy. The interpretation aligns with precedents that advocate for a contextual assessment of disclosed information, ensuring that only material and relevant details influence the judicial process.

Legal Reasoning

The crux of the legal reasoning rested on whether the VIS contained information that met the criteria outlined in Section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010:

The information would materially weaken or undermine the prosecution's evidence.
The information would materially strengthen the defense's case.
The information is likely to form part of the evidence to be presented by the prosecution.

The court meticulously analyzed the content of the VIS within its broader context. Although a specific sentence within the VIS appeared to suggest a lack of explicit mention of penetration, the court discerned that the overarching narrative implicitly acknowledged the non-consensual nature of the incidents. The court emphasized that the VIS was a reflective account of the complainer's feelings and the long-term effects of the offences, rather than a direct narrative of events.

Moreover, the court considered that even if the VIS had been disclosed, it would not have provided the defense with a substantial advantage. The existing evidence framework, particularly the complainer's prior statements and the mutual corroboration principle, remained robust. The potential inconsistency highlighted in the VIS did not significantly alter the credibility of the complainer's testimony.

The failure to disclose the VIS, therefore, did not meet the threshold for a material miscarriage of justice, reinforcing the court's decision to refuse the appeal.

Impact

This Judgment underscores the judiciary's stance on the careful and contextual handling of Victim Impact Statements within the disclosure framework. By affirming that not all content within a VIS necessitates pre-trial disclosure, the court provides clarity to legal practitioners regarding the boundaries of disclosure obligations.

Future cases involving appeals based on non-disclosure of VIS will likely reference this Judgment, particularly in assessing whether the contested information genuinely impacts the prosecution's case or the defense's opportunity to challenge witness credibility. Additionally, this decision reinforces the importance of the contextual interpretation of victim statements, ensuring that nuanced and reflective accounts are weighed appropriately without undermining the integrity of the prosecution's evidence.

Legal professionals must take heed of the delineated criteria within Section 121 when determining the disclosability of such statements, ensuring compliance while safeguarding the procedural fairness of the trial.

Complex Concepts Simplified

Victim Impact Statement (VIS)

A Victim Impact Statement is a written or oral statement presented to the court detailing the physical, emotional, and financial effects of a crime on the victim. In Scottish law, the treatment of VIS within disclosure obligations is nuanced to balance the victim's privacy with the defendant's right to a fair trial.

Disclosure Obligations

Disclosure refers to the prosecution's duty to provide the defense with relevant information that may be material to the case. Under Section 121 of the Criminal Justice and Licensing (Scotland) Act 2010, this includes information that could weaken the prosecution's case or strengthen the defense's case.

Mutual Corroboration Principle

Mutual corroboration is a legal principle where the validity of a witness's testimony is supported by another independent witness. In this case, the combined testimonies of the complainer and the daughter were crucial in establishing the prosecution's case against JB.

Miscarriage of Justice

A miscarriage of justice occurs when a legal proceeding results in an incorrect outcome, such as the wrongful conviction or acquittal of an individual. The appellant argued that non-disclosure of the VIS led to such a miscarriage, a claim the court ultimately rejected.

Conclusion

The High Court's decision in JB vs. HMA serves as a pivotal reference in understanding the scope and limitations of disclosure obligations concerning Victim Impact Statements within the Scottish legal framework. By meticulously analyzing the content and context of the VIS, the court affirmed that not all aspects of such statements require pre-trial disclosure, especially when they do not materially impact the prosecution's case or the defense's capacity to challenge witness credibility.

This Judgment reinforces the necessity for legal practitioners to adhere strictly to the established legal criteria when assessing disclosable information, thereby safeguarding the integrity of the judicial process and ensuring that both victims' rights and defendants' rights are balanced appropriately. As such, it holds significant implications for future cases, providing clarity and precedent in the nuanced interplay between victim statements and disclosure duties.