1. Introduction

The case of Edward Doran v Her Majesty's Advocate ([2023] HCJAC 15) presents a pivotal moment in Scottish criminal jurisprudence, particularly concerning the interpretation of "special cause" under section 275B of the Criminal Procedure (Scotland) Act 1995. This appeal was brought forth by Edward Doran after a preliminary hearing (PH) where his application to introduce evidence was dismissed for being filed late. The central issue revolves around whether the circumstances leading to the late submission can constitute a "special cause" warranting the court's discretion to accept the application despite procedural lapses.

The appellant, Edward Doran, faced serious charges including administering a substance with intent to overpower the victim and engaging in sexual activity without consent, as outlined in the Sexual Offences (Scotland) Act 2009. The case's complexity stems from the intersection of procedural rules and the fundamental rights of the accused to a fair trial.

2. Summary of the Judgment

The High Court of Justiciary, through the opinion delivered by Lord Carloway, the Lord Justice General, upheld Edward Doran's appeal against the initial refusal to consider his late application under section 275 of the Criminal Procedure (Scotland) Act 1995. The appellant had sought to introduce evidence suggesting that the victim consented to oral sex, aiming to challenge her credibility and the validity of her consent under the influence of substances.

Originally, the application was lodged less than seven clear days before the preliminary hearing, breaching the mandatory timeframe set by section 275B. The defense argued that this delay was due to an administrative error caused by counsel's miscalculation of dates amidst the high volume of cases exacerbated by the Covid-19 pandemic. The High Court, however, delved into whether this constitutes a "special cause" justifying the late submission.

After thorough analysis, the court determined that the misdating, influenced by unprecedented pressures, did indeed represent a special cause. Consequently, the High Court allowed the late section 275 application, thereby permitting the introduction of the contested evidence in the trial slated for March 2023.

3. Analysis

3.1 Precedents Cited

The judgment extensively references several key precedents to frame its interpretation of "special cause." Notably:

• HM Advocate v G(J) [2019] HCJ 71: Emphasized the importance of timely applications to prevent ambushes and disruptions, highlighting the need for strict adherence to procedural deadlines.
• Darbazi v HM Advocate 2021 JC 158: Discussed the assessment of "special cause" in the context of justice interests, suggesting that the merits of an application could outweigh procedural delays.
• Murphy v HM Advocate 2013 JC 60: Reinforced that the interests of justice are paramount in determining whether to allow late submissions.
• Towers v Flaws 2020 SC 209; King v Patterson 1971 SLT (notes) 40; Heasman v JM Taylor & Partners 2002 SC 326: Provided foundational definitions and interpretations of "special cause" across various legal contexts, underscoring its requirement to be case-specific rather than broadly applicable.

These precedents collectively influenced the court's decision by establishing a balance between procedural rigidity and substantive justice, ensuring that the legal process remains fair without being unduly hindered by technicalities.

3.2 Legal Reasoning

The court's legal reasoning hinged on a nuanced interpretation of "special cause." Lord Carloway clarified that "special cause" does not equate to an enhanced or extraordinary cause but rather necessitates that the cause be specific to the case at hand. The general backlog and pressures resulting from the Covid-19 pandemic, while significant, did not satisfy the criterion of being peculiar to Doran's situation.

However, the court acknowledged that the administrative error—stemming from counsel's misdiarization of the PH date—was indeed particular to this case. This mistake directly impacted the timely filing of the section 275 application without causing broader systemic issues. Additionally, since the Crown did not oppose the late application and there was no prejudice to the complainer, these factors tipped the balance in favor of justice being served by allowing the evidence.

The court also assessed the probative value of the evidence, determining that it was significant enough to warrant consideration despite the late submission. The evidence related directly to the accused's actions during the alleged offenses, which was crucial for establishing consent and challenging the prosecution's narrative.

3.3 Impact

This judgment sets a critical precedent in Scottish criminal law by delineating the boundaries of what constitutes a "special cause" for late legal applications. It underscores the courts' willingness to prioritize substantive justice over procedural strictness when the circumstances warrant such discretion.

Future cases may reference this decision to argue for more flexible interpretations of procedural deadlines, especially in situations involving administrative errors or exceptional pressures impacting legal counsel. Furthermore, it emphasizes the responsibility of defense counsel to manage deadlines meticulously while also acknowledging that system-wide challenges, like the pandemic-induced case backlog, can necessitate judicial leniency.

Moreover, the ruling highlights the judiciary's role in ensuring that the rights of the accused to present a full defense are not unduly compromised by technical procedural barriers, thereby reinforcing the integrity of the criminal justice system.

4. Complex Concepts Simplified

4.1 Section 275B of the Criminal Procedure (Scotland) Act 1995

Section 275B sets a strict deadline for filing applications under section 275, which pertains to introducing certain types of evidence in criminal proceedings. Specifically, it prohibits judges from considering late applications unless a "special cause" is demonstrated. This aims to maintain procedural fairness by preventing surprise evidence and ensuring that both the defense and prosecution are adequately prepared.

4.2 Rape Shield Provisions (Section 274)

The rape shield provisions under section 274 restrict the admissibility of evidence regarding the victim's past sexual behavior. These provisions are designed to protect victims' privacy and prevent biases that may arise from irrelevant or prejudicial information.

4.3 "Special Cause"

"Special cause" is a legal term indicating a justification for deviating from standard rules or procedures under exceptional circumstances. In the context of this case, it refers to reasons that justify accepting a late application for evidence that would otherwise be excluded due to procedural deadlines.

5. Conclusion

The High Court of Justiciary's decision in Edward Doran v HMA marks a significant clarification in the interpretation of "special cause" under section 275B of the Criminal Procedure (Scotland) Act 1995. By allowing a late application based on an administrative error unique to the circumstances of the case, the court reinforced the principle that procedural rules, while essential, must be balanced against the overarching interests of justice.

This judgment serves as a guiding beacon for future cases, illustrating that the legal system can accommodate flexibility when rigid adherence to procedural timelines would undermine the fairness and comprehensiveness of a trial. It underscores the judiciary's commitment to ensuring that defendants have the opportunity to present a complete defense, thereby upholding the integrity and fairness of the criminal justice process.