Introduction

The case CROWN APPEAL UNDER SECTION 74 BY HMA AGAINST RS ([2022] ScotHC HCJAC_41) was adjudicated by the Scottish High Court of Justiciary on June 13, 2022. The appellant, Jamie Fisher, challenged the inclusion of a docket in his indictment, which referenced a third sexual assault allegation despite his prior acquittal on that charge. The central issues revolved around the competence and fairness of introducing such docketed information, questioning its alignment with the European Convention on Human Rights, particularly Articles 6 and 8. The respondent, Her Majesty's Advocate (HMA), defended the procedural integrity under the Criminal Procedure (Scotland) Act 1995.

Summary of the Judgment

The Court, led by Lord Carloway, dismissed the appellant's appeal, upholding the sheriff's decision to include the docket in the indictment. The appellant argued that the docket was incompetent, oppressive, and violated his rights under Article 6 and Article 8 of the European Convention. The court found that the inclusion of the docket was legally permissible under Section 288BA of the Criminal Procedure (Scotland) Act 1995, as amended. It held that the docket did not infringe upon the presumption of innocence or the right to respect for private life, provided the evidence was used solely for corroboration without revisiting the acquitted charge.

Analysis

Precedents Cited

The judgment referenced several key cases to support its decision:

• HMA v AD 2018 JC 109: Established that prior acquittals do not preclude corroborative evidence for other charges.
• Lauchlan and O'Neill v HM Advocate 2015 JC 75: Highlighted that evidence from prior cases remains admissible for corroboration purposes.
• R v Z [2000] 2 AC 483: Discussed standards for admitting similar fact evidence.
• Pasquini v San Marino (No. 2) [2020] ECHR 743: Explored the implications of Article 6(2) on post-acquittal proceedings.
• R (Hallam) v Justice Secretary [2020] AC 279: Addressed the extent of the presumption of innocence post-acquittal.

These precedents collectively informed the court's stance that the docket's inclusion did not violate established legal principles or human rights conventions.

Legal Reasoning

The court meticulously examined Section 288BA of the Criminal Procedure (Scotland) Act 1995, emphasizing its provisions that allow for the inclusion of a docket to provide corroborative evidence without charging the individual for the docketed act. The sheriff's interpretation that the docket was merely evidential and not punitive was upheld. The appellant's arguments pertaining to res judicata and the prohibition against re-litigation of acquitted charges were considered but ultimately dismissed, as the docket did not constitute a new prosecution but rather supplementary evidence for existing charges.

Regarding the European Convention rights:

• Article 6: The court found no breach of the right to a fair trial as the docket information was used appropriately for corroboration.
• Article 8: Although the appellant contended that the docket infringed his right to respect for private life, the court determined that the interference was proportionate and necessary for the prevention of crime.

Impact

This judgment reinforces the procedural allowances under Scottish criminal law for including additional, corroborative evidence through dockets, even when prior related charges have resulted in acquittals. It clarifies that such practices do not inherently violate human rights conventions, provided they adhere to legislative frameworks and judicial prudence. Future cases involving similar docket inclusions will likely reference this decision to validate the admissibility of corroborative evidence without reopening previously settled charges.

Complex Concepts Simplified

• Docket: A docket is a summary of facts and evidence that may be used to corroborate the main charges in an indictment. It is not a separate charge but serves to support the primary allegations.
• Mutual Corroboration: This refers to evidence that strengthens the credibility of the primary testimony by providing consistent and supportive details from multiple sources.
• Res Judicata: A legal principle preventing the same case or issue from being tried again once it has been conclusively settled by a court.
• Similar Fact Evidence: Evidence of similar behavior or actions in other cases used to demonstrate a pattern, though its admissibility varies across jurisdictions.
• Article 6 of the European Convention on Human Rights: Ensures the right to a fair trial, including the presumption of innocence and the right to be heard.
• Article 8 of the European Convention on Human Rights: Protects the right to respect for private and family life, home, and correspondence.
• Section 288BA of the Criminal Procedure (Scotland) Act 1995: Allows for the inclusion of a docket in an indictment to aid in the corroboration of the complainer's testimony.

Conclusion

The judgment in CROWN APPEAL UNDER SECTION 74 BY HMA AGAINST RS establishes a critical precedent affirming the lawful inclusion of dockets in criminal indictments under specific statutory provisions. By upholding the sheriff’s decision, the court delineates the boundaries within which corroborative evidence can be utilized without infringing upon the accused’s human rights, particularly in scenarios involving prior acquittals. This decision not only reinforces the procedural safeguards inherent in Scottish criminal law but also ensures that the pursuit of justice remains balanced with the protection of individual rights. Legal practitioners and future litigants must acknowledge this ruling's implications, particularly regarding the strategic use of docketed evidence and its compatibility with constitutional protections.