PB v HM Advocate [2025] HCJAC 53: Timeous Objection, Volunteered Prejudicial Evidence and Judicial Discretion in Re‑examination

PB v HM Advocate [2025] HCJAC 53: Timeous Objection, Volunteered Prejudicial Evidence and Judicial Discretion in Re‑examination

Court: Appeal Court, High Court of Justiciary (Scotland)
Neutral Citation: [2025] HCJAC 53
Case Reference: HCA/2025/000106/XC
Coram: Lord Justice Clerk (Lord Beckett), Lord Armstrong, Lord Clark
Date of Judgment: 2 December 2025

1. Introduction

This appeal against conviction in PB v HM Advocate required the Scottish Appeal Court to address two recurring and practically important questions in criminal trials:

  1. How should a trial judge deal with prejudicial or irrelevant material which is volunteered by a witness, rather than deliberately elicited, especially in the context of sexual offences?
  2. What are the limits of re‑examination, particularly where the prosecutor seeks to rely on a prior police statement that was not previously put in cross‑examination?

The appellant, PB, had been convicted of multiple charges of rape and related offences against two complainers, AA and BB, following a jury trial. Although the indictment had originally contained 14 charges, the trial resulted in a mixture of withdrawals, acquittals, and convictions. The appeal was confined to conviction (not sentence) and did not challenge the convictions on two post‑indictment charges (charges 13 and 14).

The case is doctrinally significant for its restatement and application of:

  • the requirement of timeous objection under section 118(8) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”),
  • the scope of the prohibition on reference to previous convictions under section 101(1) of the 1995 Act,
  • the rule against leading evidence of unlibelled crimes unless fairly noticed, and
  • the breadth of the trial judge’s discretion in re‑examination, particularly where prior inconsistent (or potentially clarifying) statements are used.

In doing so, the court synthesises and applies a line of authority including Kepple v HM Advocate, Deighan v MacLeod, Nelson v HM Advocate, Fraser v HM Advocate, Jackson v HM Advocate and Gunn v Brown, and offers practical guidance on trial management where a witness gives spontaneous, emotive or prejudicial answers.

2. Summary of the Judgment

2.1 Background and Charges

The appellant was convicted of the following relevant charges (all in the Airdrie/Perth/Fife area between 2019 and 2024):

  • Charge 5: Rape of AA on various occasions between 1 January 2019 and 31 January 2020 at an address in Airdrie.
  • Charge 7: Rape of AA at an unknown address in Perth on 11 July 2021 (domestically aggravated).
  • Charge 9: Rape of AA at a second address in Airdrie on 28 August 2021 (with circumstantial corroboration).
  • Charge 10: Assault of AA by holding her down and choking her at a hotel in Fife on 10 April 2022 (domestically aggravated).
  • Charge 11: Rape of BB (now deceased) at a third address in Airdrie on 7 September 2022 (with circumstantial corroboration).
  • Charge 12: Threatening or abusive behaviour towards BB on 8 September 2022 contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.
  • Charges 13 & 14: Curfew breach and a section 38 offence involving police officers in April 2024 (unchallenged on appeal).

The Crown relied on:

  • Mutual corroboration across the multiple rape charges (AA and BB), and
  • Additional circumstantial evidence for charges 9 and 11, including:
    • AA’s distress and statements to her mother, CC, and PB’s silence, and
    • BB’s distress, her statements later led as hearsay, and aspects of PB’s own evidence.

Some earlier alleged assaults were withdrawn by the Crown (charges 1–3), one sexual offence (charge 6) was the subject of a successful no case to answer submission, and the jury returned verdicts of not guilty (charge 4) and not proven (charge 8) on other allegations involving AA.

2.2 The Grounds of Appeal

The appeal was advanced on two grounds:

  1. Ground 1 – Prejudicial evidence from AA: the appellant argued that the trial judge erred in repelling objections to parts of AA’s evidence which, it was said, were prejudicial and not foreshadowed in the indictment. Particular complaint was made about:
    • references to PB having been “in enough trouble with the police already”,
    • assertions that he was a “sexual deviant” or “sexual paedophile”,
    • suggestions of a sexual relationship with his male friend, DD, and a comment that he came home with “his bum bleeding”,
    • references to damaging doors, smashing phones, interfering with a steering wheel, and other behaviour not libelled.
    The appellant contended that timeous objection had been taken and that the judge ought at least to have given the jury specific directions to disregard such material.
  2. Ground 2 – Re‑examination of CC (AA’s mother): the appellant argued that the judge erred in allowing the Advocate Depute to refer to, and effectively adopt, CC’s police statement in re‑examination, when it had not been put to her in cross‑examination. It was argued that:
    • a witness’s prior statement may be used by the Crown in examination‑in‑chief, and by the defence in cross‑examination, but not introduced for the first time in re‑examination, and
    • having permitted this, the judge erred further in refusing to afford the defence a second opportunity to cross‑examine CC on this new material.

2.3 Decision

The court unanimously refused the appeal.

On Ground 1, the court held that:

  • Most objections at trial were not timeously taken within the meaning of section 118(8) of the 1995 Act; this of itself was fatal to much of the argument.
  • In any event:
    • there had been no breach of section 101(1) (previous convictions), because no previous conviction was disclosed; at most there was a vague statement about PB being “in trouble with the police”,
    • many of the matters complained of did not constitute crimes and therefore did not engage the Nelson rule on unlibelled criminal conduct,
    • where potentially criminal behaviour was referred to (e.g. steering wheel, kicking a door), these references were spontaneous, isolated, and of low prejudicial weight, and often attached to charges on which PB was acquitted,
    • in light of the trial judge’s general and careful charge directing the jury to focus only on relevant evidence and to disregard moral or emotional reactions, the judge was entitled to adopt Fraser option (i)—to say nothing specific about the offending answers so as not to underline them.

On Ground 2, the court held that:

  • The issue of what AA had told CC (including whether she had specified “last night” in describing a rape) had been squarely raised and emphasised in cross‑examination. The Crown was therefore entitled to clarify the matter with CC in re‑examination, including by referring to her police statement.
  • The scope of re‑examination is primarily a discretionary matter for the trial judge (following Gunn v Brown), and the judge had not erred in refusing a second cross‑examination.

The court concluded that there had been no miscarriage of justice and upheld all challenged convictions.

3. Detailed Analysis

3.1 Statutory and Doctrinal Framework

3.1.1 Timeous objection – section 118(8) of the 1995 Act

Section 118(8)(b) of the 1995 Act provides that, where an accused had legal representation at trial,:

“no conviction … shall be suspended or set aside in respect of any objections to … the competency or admission or rejection of evidence at the trial … unless such objections were timeously stated.”

In other words, if defence counsel does not object at the appropriate time—typically to the question, or at least before the answer is fully given—then, absent special circumstances, that objection cannot later form the basis of an appeal. Instead, if prejudicial evidence has already emerged, counsel must normally:

  • move to desert the diet pro loco et tempore (seeking to end the trial and restart with a new jury), or
  • ask for a specific jury direction to disregard the offending material.

The court held at [23] that, since the note of appeal was framed on the basis of timeous objections, the ground was “liable to fail” because most of the objections at trial had been late. Notably, the grounds of appeal did not complain that the judge ought to have deserted the trial or given particular corrective directions, and the defence had not sought these remedies at trial.

3.1.2 Prohibition on previous convictions – section 101(1)

Section 101(1) of the 1995 Act states:

“Previous convictions against the accused shall not … be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned.”

This prohibition can be infringed by indirect or implied references, as recognised in Cordiner v HM Advocate 1978 JC 64. However, the authorities also clarify that:

  • the prohibition is not breached when a witness, on a competent question, volunteers prohibited information (unless the question was careless or heedless of obvious risks: Deighan v MacLeod 1959 JC 25), and
  • if prejudicial material is elicited in cross‑examination for the defence, it cannot usually be relied upon as a ground of appeal (Kepple v HM Advocate 1936 JC 76).

3.1.3 Evidence of unlibelled crimes – Nelson v HM Advocate

There is a general rule that the Crown may lead any evidence relevant to the charge being tried. However, where evidence tends to show a separate crime not contained in the indictment, fair notice may require that the crime be:

  • libelled as a charge, or
  • noticed by a docket (auxiliary notice on the indictment).

This “Nelson principle”, from Nelson v HM Advocate 1994 JC 94, seeks to prevent unfair surprise by the presentation of unnotified criminal allegations. It is, however, limited to criminal conduct. Non‑criminal but discreditable behaviour (e.g. drunkenness, infidelity) may be admissible if relevant, subject to the usual tests of relevance and fairness.

3.1.4 Trial judge’s options on prejudicial material – Fraser

In Fraser v HM Advocate [2013] HCJAC 117, 2014 JC 115, the Lord Justice Clerk (Carloway) identified three options where prohibited or seriously prejudicial evidence reaches the jury:

  1. Option (i): do nothing specifically—ignore the offending evidence and avoid highlighting it.
  2. Option (ii): give a direction to disregard the evidence, telling the jury expressly that it is irrelevant and should play no part in deliberations.
  3. Option (iii): desert the diet, where an unfair trial has become inevitable.

This framework was endorsed in Jackson v HM Advocate [2017] HCJAC 72, 2018 JC 86. The choice among these options is a matter of judicial discretion, weighed against the potential prejudice and the effectiveness (and possible counter‑productivity) of a curative direction.

3.1.5 Scope of re‑examination – Gunn v Brown

In Gunn v Brown 1987 SLT 94, the Appeal Court stressed that the scope of re‑examination is primarily a matter for the trial judge, who must consider:

  • whether the question properly arises out of cross‑examination, and
  • whether justice requires permitting, or restricting, further questioning (including a second cross‑examination if genuinely new and material issues emerge).

Appellate interference is limited to cases where the judge has “seriously erred” in exercising this discretion; the judge must weigh both the accused’s rights and the public interest in the proper administration of justice.

3.2 Ground 1 – Volunteered Prejudicial Evidence and Timeous Objection

3.2.1 Factual matrix

AA, giving evidence by live TV link, provided a broad narrative of her relationship with PB, starting in 2012–2013. In the course of examination‑in‑chief and cross‑examination, she made various comments beyond the tight wording of the libel, including:

  • references to PB’s drunkenness and being “in enough trouble with the police already” ([11]),
  • description of an incident in the car where PB allegedly interfered with the steering wheel and pulled the handbrake, suggesting he tried to drive her off the road ([12]–[14]),
  • pejorative descriptions of PB, including calling him a “sexual deviant” (and in argument, the note of appeal referred to “sexual paedophile”), after she had described a naked video call in the shower with an erection ([15]),
  • suggestions that PB and DD were “more than friends” and that PB came back from staying with DD with “his bum bleeding” ([17]–[18]),
  • remarks about him “smashing” mobile phones and other non‑libelled conduct ([19]–[20]).

Defence counsel made scattered objections, often after the answer had been given and repeated, and increasingly objected to “extraneous” material (particularly about the steering wheel incident). At one stage, concerned that the jury might see repeated objections as obstructive, the judge indicated that he would treat counsel as having taken a general objection to that “line”, and that he would consider matters later if need be ([14]).

The note of appeal itself, however, was narrowly framed, referring only to AA’s characterisation of PB as a “sexual paedophile” and their alleged sexual relationship with DD ([7]). On appeal, counsel attempted to broaden this substantially, pointing to a catalogue of episodes, comments, and alleged failures to direct the jury ([19]).

3.2.2 Timeous objection and the judge’s management

At [23], the court held that, because the ground presupposed a timeous objection, it was fatally undermined by the fact that:

  • most objections were not made to the question or before the answer was completed, and
  • some answers were given repeatedly before any challenge was made.

Section 118(8) therefore operated to bar many of the complaints about the admission of evidence. The court also emphasised that where an objection is too late to prevent the answer being heard, the remaining options at trial are:

  • a motion to desert the trial pro loco et tempore, or
  • a request for a curative direction.

Neither course was adopted at trial, and neither featured in the grounds of appeal. Attempting to rely on them later at the appeal stage was “too late” ([23]).

Nevertheless, recognising the practical difficulty of interrupting a live‑link witness who does not always see or hear objections, and that the judge had discouraged repeated objections, the court decided to consider Ground 1 on its merits ([24]). It gently criticised the trial judge’s formulation—that objections need not be repeated—holding that, if this might risk inhibiting timeous objection for appeal purposes, he should have expressly preserved the right to object to particular questions. However, the court immediately qualified this by noting:

  • before the judge made that comment, none of the objections had been timeous anyway, and
  • the later material complained of did not arise from objectionable questions that could have been intercepted.

Thus, even considering the merits, the complaint did not succeed.

3.2.3 Section 101 and “previous convictions” – no breach

The court examined whether AA’s comment that PB had been “in enough trouble with the police already” could amount to an implied reference to previous convictions contrary to section 101(1).

At [26], it held that:

  • none of the passages complained of disclosed actual previous convictions,
  • the statement about “trouble with the police” was non‑specific and did not clearly imply a criminal record, and
  • no question asked by the Advocate Depute invited any reference to previous convictions; the material was not deliberately or carelessly elicited.

Given the court’s reliance on Deighan v MacLeod, the principle re‑affirmed here is that:

  • section 101 is not breached by uninvited, spontaneous answers to competent questions, unless the prosecutor is culpably heedless of foreseeable risk; and
  • where defence cross‑examination itself elicits prejudicial material, it cannot found an appeal (Kepple).

3.2.4 Evidence of unlibelled crimes – a narrow category

At [28]–[30] the court carefully distinguished between:

  • conduct which could be criminal, such as:
    • kicking in a door (associated with charge 2), and
    • pulling the steering wheel / handbrake while someone is driving (associated with charge 4),
  • and behaviour which is not criminal, such as:
    • drunkenness and being “difficult” in drink,
    • arguing about lottery tickets,
    • sex between consenting adults, including same‑sex relations, and
    • infidelity or morally questionable behaviour.

Only the first category—unnotified conduct that might itself amount to a distinct offence—potentially engages the Nelson principle. In this case:

  • The door‑kicking episode was “a relatively minor additional detail” in the narrative of the assault libelled in charge 2 and would be unlikely to infringe Nelson ([30]). Moreover, charge 2 was withdrawn by the Crown and the appellant was acquitted of it.
  • The steering wheel / handbrake incident, while potentially criminal, was:
    • not invited by the Crown,
    • raised spontaneously, and
    • related to a charge (4) on which the jury unanimously acquitted PB.

The court concluded that, in context, these episodes did not cause material prejudice, particularly where they related to charges that ended in acquittal.

3.2.5 The “sexual deviant” and same‑sex relationship allegations

AA referred to PB as “a sexual deviant” (and the note of appeal referred also to “sexual paedophile”) after describing:

  • a video call where PB appeared naked in the shower with an erection, rubbing soap over himself, without her consent ([15]), and
  • subsequent sexually intrusive behaviour and alleged rapes.

The court treated this as an opinion, not additional factual material, and emphasised that it “added nothing material” to the already graphic factual account ([30]). On the alleged sexual relationship with DD and the “bum bleeding” comment, the court stressed:

  • consensual sexual conduct between adults (same‑sex included) is not criminal ([28], [30]),
  • any potential prejudice lay not in criminal inference but in moral disapproval (infidelity, sexuality), and
  • PB and DD both gave evidence denying such a relationship, thus allowing the jury to hear and weigh both sides.

Further, the trial judge had specifically directed the jury that:

  • they were not concerned with morals or social ethics, and
  • their decision‑making should not be swayed by emotion, revulsion or sympathy ([33]).

Taken together, these factors led the court to hold that the judge was entitled to proceed under Fraser option (i): he neither revisited the remarks in his charge nor gave a specific direction about them, in order not to highlight them unduly ([31], [34]).

3.2.6 General directions as a cure

Central to the court’s conclusion was the way the trial judge framed his directions. He:

  • gave written and oral directions at the outset on:
    • what counts as evidence,
    • the need to consider each charge separately, and
    • the requirement to base verdicts only on the evidence ([33]);
  • repeated those cautions in his final charge, explicitly warning the jury that:
    • the court was not concerned with morals or social ethics, and
    • they must not be influenced by emotion, revulsion or sympathy ([33]);
  • focused the jury on the routes to verdict, identifying relevant evidence on each charge, including the appellant’s denials, and did not remind the jury of the disputed, irrelevant comments ([31], [33], [34]).

The Appeal Court regarded this as a legitimate and proper exercise of discretion, again within the Fraser framework. Even if a complaint had been framed as a failure to direct (which it was not), the court indicated that it would have rejected it ([34]).

3.3 Ground 2 – Re‑examination, Prior Statements, and Second Cross‑Examination

3.3.1 The significance of CC’s evidence

CC’s evidence was a key component of the circumstantial corroboration for charge 9 (rape of AA on 28 August 2021). She spoke to:

  • a disclosure by AA shortly after the incident, indicating that PB had raped her “the previous night”, and
  • PB’s silence in the face of that allegation.

This not only bore on AA’s consistency and distress but also provided corroborative support for the timing and occurrence of the alleged rape.

In the course of the trial, there appeared to be two versions of what CC had said in chief about AA’s disclosure, and defence counsel in cross‑examination sought to exploit any inconsistency, particularly about whether AA had specified “last night”.

3.3.2 Re‑examination and the use of the police statement

In re‑examination, the Advocate Depute referred CC to her police statement, which contained a fuller version of AA’s words, including a specific reference to the rape happening “last night”. CC indicated that her memory had been better at that time and adopted the fuller version ([35]).

The appellant argued that—because the statement had not been used in cross‑examination—the Crown was barred from referring to it in re‑examination, except where it had already been deployed in examination‑in‑chief.

The Appeal Court rejected this argument for several reasons:

  • The difference between versions of what AA had said was repeatedly raised and emphasised in cross‑examination ([35]). Therefore, the matter was already in play.
  • Re‑examination was legitimately used to clarify that CC’s earlier statement to police contained the fuller version and to allow her to adopt it. This was directly responsive to cross‑examination and not a new topic.
  • Even if the point had not been raised in cross‑examination, the permissible scope of re‑examination is substantially a matter of discretion for the trial judge, who must balance fairness to the accused with the public interest ([35], [36]).

The court referred to Gunn v Brown and to the standard commentary in Renton & Brown (Criminal Procedure, para 18‑50), affirming that appellate intervention is warranted only if the judge has seriously erred in exercising that discretion.

3.3.3 Refusal of a second cross‑examination

The appellant further argued that, having allowed the Crown to use the statement in re‑examination, the judge ought to have permitted a second cross‑examination of CC to “explore the matters raised”.

The court accepted that there might be rare cases—such as Gunn at first instance—where:

  • re‑examination genuinely introduces a new and material matter beyond the scope of cross‑examination, and
  • fairness requires allowing the defence to test that new material through further cross‑examination ([36]).

However, this was not such a case. The issue of what AA told CC, and the significance of any reference to “last night”, had already been fully traversed in cross‑examination. The police statement and CC’s adoption of it merely clarified and anchored her evidence on a matter already in issue; it did not create a fresh line of attack or defence.

Accordingly, the judge’s refusal to permit a second cross‑examination was within the range of reasonable discretionary responses, and no miscarriage of justice arose ([36]).

3.4 Precedents Cited and Their Influence

Several earlier authorities play a central role in the court’s reasoning.

3.4.1 Kepple v HM Advocate 1936 JC 76

Kepple establishes that where prejudicial information about the accused is elicited in cross‑examination for the defence, the accused cannot ordinarily rely on that material as a foundation for appeal. The logic is that a party cannot complain of prejudice created by its own forensic strategy.

In PB’s case, the “bum bleeding” comment and aspects of the suggested sexual relationship with DD emerged while counsel was putting challenges that PB had multiple children with different women and that he was “living with his boyfriend” ([18], [30]). The Appeal Court applied Kepple to reinforce that these defence‑prompted answers could not now be treated as vitiating the fairness of the trial.

3.4.2 Falconer v Brown (1893) 1 Adam 96

Falconer is cited for the proposition that not every departure from the exact terms of a libel demands specific notice; only matters going to the essence of the case require that level of precision. The Advocate Depute relied on this to argue that scene‑setting and background evidence need some latitude ([21]).

AA’s references to prior difficulties in the relationship, arguments, drunkenness, and non‑criminal misconduct were treated as background narrative rather than fresh criminal allegations requiring to be libelled.

3.4.3 Nelson v HM Advocate 1994 JC 94

Nelson is the leading authority on the Crown’s ability to lead evidence of other crimes not libelled. The Appeal Court in PB’s case accepts the principle but stresses that:

  • it applies only where “fair notice requires it” because the evidence tends to prove another crime ([28]), and
  • much of the complained‑of material did not meet that threshold because it was not criminal conduct.

Where unlibelled criminal behaviour arguably appeared (e.g. kicking the door, the steering wheel incident), the court regarded it as incidental detail, closely associated with the libelled events, and further neutralised by the acquittals on those associated charges ([29]–[30]).

3.4.4 Deighan v MacLeod 1959 JC 25 and Cordiner v HM Advocate 1978 JC 64

These cases address the breadth of section 101 (previous convictions) and the dangers of indirect references. Cordiner illustrates that indirect or implied references may still breach s 101; Deighan emphasises that prosecutors must not ask careless questions that are likely to elicit prohibited material.

In PB’s case, the Appeal Court concluded that:

  • none of the Advocate Depute’s questions were careless or designed to elicit previous convictions,
  • any potentially problematic references came from spontaneous answers, sometimes prompted or developed in defence cross‑examination, and
  • there was thus no breach of section 101 ([25]–[27]).

3.4.5 Fraser v HM Advocate [2013] HCJAC 117; Jackson v HM Advocate [2017] HCJAC 72

Fraser and Jackson are pivotal on the judge’s options when faced with prejudicial material. The PB court explicitly adopts the Fraser tripartite framework at [27] and evaluates the trial judge’s conduct against it.

The core holding is that the trial judge was entitled to choose option (i)—to say nothing specific about the extraneous remarks, while giving robust general directions about focusing only on relevant evidence and eschewing moral or emotional reactions. The court found no error in this; indeed, it commended the judge’s careful approach ([31]–[34]).

3.4.6 Gunn v Brown 1987 SLT 94

Gunn is cited as authority for two key propositions:

  • the extent of re‑examination is a matter of discretion for the presiding judge, and
  • only a serious misdirection or misapplication of that discretion will justify appellate interference.

The court in PB re‑affirms that in exercising this discretion the judge must account not only for the accused’s fair trial rights but also for the public interest in the accurate determination of facts ([35]).

4. Impact and Practical Implications

4.1 For Defence Practitioners

  • Timeous objection is critical. Section 118(8) is strictly applied. Objections must be taken to the question, or at least before the answer has fully emerged, if they are to support an appeal. If prejudicial material is already before the jury, counsel must either:
    • move for desertion pro loco et tempore, or
    • seek a specific direction on the matter.
    Failing to do so will seriously weaken any later appellate complaint.
  • Be cautious in cross‑examination. Lines intended to undermine credibility (e.g. challenging on multiple relationships, suggesting motives, or impugning sexual history) may provoke highly prejudicial answers. Because of Kepple, the defence will struggle to complain about prejudice created by its own questions.
  • Frame grounds of appeal carefully. The court noted that many of the alleged prejudicial statements were not even specified in the note of appeal ([19], [26]). Precision matters; vague, wide‑ranging complaints are less likely to succeed.

4.2 For Prosecutors

  • Scene‑setting questions remain legitimate, but prosecutors must remain alert to potential pitfalls. While the court here found no carelessness, questioning about a witness’s background relationship, or “trouble with the police”, could in other cases risk triggering prohibited references.
  • Re‑examination is a powerful tool to repair or clarify evidence tested in cross‑examination, including through reference to prior statements. Provided the issue has been raised explicitly in cross, the Crown can legitimately:
    • refer to a prior statement, and
    • invite the witness to adopt the earlier, fresher account.

4.3 For Trial Judges

  • Manage objections transparently. While it is understandable to try to reduce repeated objections (particularly with a live‑link witness), judges should expressly preserve counsel’s right to make timeous objections to specific questions. The court suggests that the judge in PB should have “qualified his approach” to make this clear ([24]).
  • Use Fraser options flexibly. The judgment underlines that:
    • it will often be appropriate to adopt option (i)—not singling out unfortunate remarks in the charge—where prejudice is limited and the risk of emphasising the comment is significant,
    • specific directions (option (ii)) or desertion (option (iii)) are reserved for more serious or irremediable prejudice.
  • General directions can be sufficient. Detailed, accurate general directions about:
    • what counts as evidence,
    • the need to decide each charge separately, and
    • ignoring moral judgments and emotional responses
    may obviate the need for targeted corrective directions about every stray improper remark ([31]–[34]).
  • Re‑examination discretion remains broad. Judges have, and should exercise, a wide discretion over the scope of re‑examination and whether to permit further cross‑examination. PB confirms that appellate courts will defer to that discretion unless it is exercised in a way that is plainly unreasonable or unfair.

5. Complex Concepts Explained

5.1 “Timeous Objection”

A timeous objection is one made at the earliest practical opportunity, typically:

  • before the witness answers the question, or
  • as soon as it becomes clear what the question is seeking to elicit.

The purpose is to prevent inadmissible evidence from reaching the jury at all. Section 118(8) means that if the defence misses this window, they usually cannot later use that evidential point as a basis for appeal.

5.2 Desertion pro loco et tempore

To desert the diet pro loco et tempore is to end the current trial at its current time and place, usually with a view to re‑trying the case before a fresh jury. It is an extreme remedy, used where something has occurred which makes a fair trial no longer possible (for example, highly prejudicial inadmissible material has irretrievably contaminated the jury).

5.3 Section 101 – Previous Convictions

Section 101 of the 1995 Act protects accused persons by ensuring that, in general, the jury does not learn about their criminal record until after they have reached a verdict on the current charges. Only in certain situations (e.g. special defences, or where past convictions are part of a statutory offence) can this be relaxed.

The concern is that knowledge of a previous conviction might lead a jury to think “once a criminal, always a criminal”, which would be unfair.

5.4 Mutual Corroboration

In Scots criminal law, a jury must generally have evidence from at least two independent sources pointing to the accused’s guilt. In sexual offence cases involving multiple complainers, the doctrine of mutual corroboration allows the evidence of one complainer about one incident to corroborate the evidence of another complainer about a different incident, provided:

  • the offences are closely linked in time, character and circumstance, and
  • they demonstrate a course of conduct by the accused.

In PB’s case, the jury were directed that they could find mutual corroboration among the separate rape charges involving AA and BB ([4]–[5]).

5.5 Re‑examination

A witness is first questioned by the side that calls them (examination‑in‑chief), then questioned by the opposing side (cross‑examination). Re‑examination is the opportunity for the party who called the witness to clarify or repair matters arising from cross‑examination.

It is not a chance to start a new topic. Typically, it should:

  • address or explain matters raised in cross‑examination,
  • clarify apparent inconsistencies, and
  • ensure the jury has a fair and balanced picture.

In PB, the Crown used re‑examination to clarify CC’s memory and prior statement after the defence had put her account under challenge.

5.6 Hearsay and Statements to Police

Hearsay is an out‑of‑court statement led in evidence to prove the truth of its contents. Scots law has gradually allowed more exceptions to the hearsay rule, particularly for statements made by unavailable witnesses (such as deceased complainers) and for prior consistent statements under statutory regimes.

In PB’s case:

  • BB was deceased, so her statements were led as admissible hearsay ([4]), and
  • CC’s police statement was used not as standalone hearsay but as a prior account to clarify and support her in‑court testimony about what AA had told her.

6. Conclusion

PB v HM Advocate [2025] HCJAC 53 is a careful and pragmatic reaffirmation of core principles in Scots criminal procedure:

  • It underscores the centrality of timeous objection under section 118(8) and the consequences of failing to seek appropriate remedies (desertion or directions) at trial.
  • It clarifies the scope of the prohibition on previous convictions under section 101—distinguishing between direct or implied references to criminal records and more general references to “trouble with the police” or morally disapproved behaviour.
  • It narrows the reach of the rule against unlibelled crimes, confirming that not every discreditable or unpleasant aspect of a relationship is a “crime” that must be libelled or docketed; much of it is admissible background.
  • It confirms the Fraser options as the guiding framework for dealing with prejudicial evidence, and accepts that, where the potential prejudice is modest, a judge may legitimately say nothing and rely on strong, general directions.
  • It re‑affirms that the scope of re‑examination is primarily a matter of judicial discretion, and that prosecutors can, in appropriate circumstances, use prior police statements in re‑examination to clarify issues raised in cross‑examination without necessarily triggering a right to second cross‑examination.

The judgment will be of practical value to trial judges managing highly charged sexual offence evidence, to defence counsel considering how and when to object (and what to put to witnesses in cross‑examination), and to prosecutors deploying re‑examination and prior statements. It confirms that appeals will rarely succeed on the basis of stray prejudicial answers alone, especially where:

  • they were not properly objected to at trial,
  • they were spontaneous and not elicited by improper questioning,
  • they concern non‑criminal behaviour or marginal incidents, and
  • the trial judge has given clear and comprehensive directions focusing the jury on relevant evidence and lawful routes to verdict.

In short, PB v HM Advocate stands as a robust restatement of judicial discretion and procedural discipline in Scottish criminal trials, particularly in the difficult terrain of sexual offences where emotive and extraneous comments by witnesses are common and must be handled with both fairness and realism.

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