Introduction

The case of Macdonald v HM Advocate [2020] ScotHC HCJAC_21 serves as a critical examination of the procedural safeguards in sexual offences trials within the Scottish legal system. The appellant, Gavin Watson Macdonald, challenged his conviction for sexual assault, focusing on the misuse of terminology and the handling of evidentiary applications. This commentary delves into the background of the case, the court's decision, and the broader implications for future sexual offences adjudications.

Summary of the Judgment

On 26 May 2020, the Scottish High Court of Justiciary dismissed the appeal lodged by Gavin Watson Macdonald against his conviction for sexual assault under Sections 2 and 3 of the Sexual Offences (Scotland) Act 2009. The appellant contended that referring to the complainant as a "victim" during the trial constituted a miscarriage of justice. Additionally, he raised concerns about the trial's adherence to procedural norms, particularly regarding Section 275 applications, cross-examination practices, and jury instructions.

The court analyzed multiple facets of the trial process, including the administration of Section 275 applications, the scope of cross-examination in sexual offences cases, and the responsibilities of the presiding judge or sheriff in maintaining procedural integrity. Despite acknowledging procedural deficiencies, the court ultimately refused the appeal, determining that the misuse of the term "victim" did not significantly prejudice the appellant's right to a fair trial.

Analysis

Precedents Cited

The judgment references several pivotal cases that have shaped the landscape of sexual offences trials in Scotland:

• Hogan v HM Advocate (2012 SCCR 404): Established that referring to a complainant as a "victim" before conviction could be inappropriate.
• Wishart v HM Advocate (2014 SCCR 130): Reinforced the stance that terminology used by the court should not imply guilt.
• Bakhjam v HM Advocate (2018 JC 127): Highlighted the importance of properly addressing jury beliefs regarding consent.
• Maqsood v HM Advocate (2019 SCCR 59): Addressed the erroneous directions regarding reasonable belief in consent.
• Lucas v HM Advocate (2009 SCCR 892): Emphasized the necessity of withdrawing pleas when lacking evidence for a defence.
• Dreghorn v HM Advocate (2015 SCCR 349) and Donegan v HM Advocate (2019 JC 81): Provided guidance on controlling cross-examination in sexual offence trials.

Legal Reasoning

The court's legal reasoning centered on the proper administration of Section 275 of the Criminal Procedure (Scotland) Act 1995, which pertains to "rape shield" provisions aimed at protecting complainants from irrelevant and prejudicial evidence. The appellant argued that the sheriff's improper reference to the complainer as a "victim" and the mishandling of Section 275 applications infringed upon his right to a fair trial.

The court acknowledged procedural lapses, particularly the failure to adequately assess and oppose the Section 275 application submitted by the defense. This application sought to introduce evidence regarding the complainer's prior incidents, which were deemed irrelevant and prejudicial. However, the court concluded that while these procedural errors were significant, they did not amount to a miscarriage of justice sufficient to overturn the conviction.

Additionally, the court critiqued the defense's approach in presenting a special defence of consent without substantive evidence, which led to inappropriate jury instructions that could confuse the assessment of consent and reasonable belief.

Impact

This judgment underscores the critical importance of adhering to established procedural safeguards in sexual offences trials. Key impacts include:

• Emphasis on Proper Use of Terminology: Reinforces the necessity for courts to use appropriate terminology, avoiding inadvertent implications of victimhood before conviction.
• Stringent Application of Section 275: Highlights the need for meticulous consideration and opposition of Section 275 applications to prevent the introduction of irrelevant or harmful evidence.
• Control Over Cross-Examination: Serves as a reminder for presiding judges and sheriffs to vigilantly control cross-examination to protect complainants from distressing and non-essential questioning.
• Jury Direction Clarity: Emphasizes the responsibility of the court to provide clear and accurate directions to juries, particularly concerning complex concepts like consent and reasonable belief.
• Future Legislative and Procedural Reforms: May prompt reviews and reforms in trial procedures to bolster the protection of complainants and ensure fair treatment of the accused.

Complex Concepts Simplified

Section 275 Applications

Section 275 of the Criminal Procedure (Scotland) Act 1995 permits the introduction of evidence that might otherwise be excluded under common law or Section 274 (which restricts attacks on a complainant's character). This includes prior incidents or behaviours of the complainant that could be prejudicial. The intent is to protect the integrity of the trial by limiting irrelevant or harmful information from influencing the jury's perception.

Hearsay Evidence

Hearsay refers to statements made outside the courtroom presented as evidence to prove the truth of the matter asserted. Generally inadmissible, hearsay can be permitted under specific circumstances, such as prior consistent statements or statements made under certain exceptions outlined in legal statutes.

Special Defence of Consent

The special defence of consent allows the accused to assert that the complainant consented to the sexual activity, negating the element of non-consent required for establishing offences under the Sexual Offences Act. This defence necessitates clear and compelling evidence to support claims of consent.

Section 288DB Direction

Section 288DB mandates that in sexual offences trials, juries must be informed that lack of physical resistance from the complainant does not inherently indicate consent or the falsity of allegations. This is to prevent misconceptions that may arise from cultural stereotypes or misunderstandings about consent.

Conclusion

The Macdonald v HM Advocate [2020] case serves as a pivotal reference point in the ongoing discourse surrounding the fair administration of sexual offences trials in Scotland. While the court upheld the appellant's conviction, it concurrently highlighted significant procedural shortcomings that necessitate vigilant adherence to established legal safeguards.

The judgment reinforces the judiciary's role in meticulously overseeing the introduction of evidence, the conduct of cross-examination, and the clarity of jury instructions to uphold the principles of justice. By scrutinizing and critiquing the application of Section 275 and the usage of terminology, the court underscores the delicate balance between protecting complainants and ensuring a fair trial for the accused.

Moving forward, this case advocates for heightened judicial oversight and rigorous adherence to procedural norms to prevent miscarriages of justice. It underscores the imperative for ongoing training and awareness among legal practitioners to navigate the complexities of sexual offences trials effectively, ensuring that the rights and dignities of all parties are upheld.