Factual and Procedural Background
On 26 April 2024, the Appellant was convicted after trial of two charges: the rape of his then wife on various occasions between 1 January 2002 and 31 October 2003, and the sexual assault and rape of his daughter on various occasions between 1 July 2012 and 31 December 2013, contrary to sections 1, 2, and 3 of the Sexual Offences (Scotland) Act 2009. On 23 May 2024, the Appellant was sentenced to imprisonment for 4 years on the first charge and 7 years on the second, to run concurrently.
The appeal is based on the Crown's alleged failure to disclose the Victim Impact Statement (VIS) of the first complainer (the former wife) prior to trial, contrary to Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 and the Lord Advocate’s Code of Practice. The defence argued that the VIS contained material inconsistencies with the complainer's evidence that could have been used to challenge her credibility, potentially affecting the application of mutual corroboration relied upon by the Crown. The appeal was refused on 9 January 2025, with reasons provided in this opinion.
Legal Issues Presented
- Whether the Victim Impact Statement (VIS) of the first complainer was disclosable under the provisions of the Criminal Justice and Licensing (Scotland) Act 2010 and the Lord Advocate’s Code of Practice.
- Whether the failure to disclose the VIS prior to trial constituted a miscarriage of justice.
- Whether the material contained in the VIS materially undermined the Crown’s case or materially strengthened the defence case.
Arguments of the Parties
Appellant's Arguments
- The Crown failed to disclose the VIS of the first complainer prior to trial, breaching the duty of disclosure under Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 and the Lord Advocate’s Code of Practice.
- The VIS contained a material inconsistency with the complainer's trial evidence, specifically that while she described awakening to the Appellant having sex with her, the VIS only mentioned him "trying to initiate sex" without reference to penetration.
- Had the defence been aware of the VIS, it could have used it to challenge the complainer’s credibility through cross-examination, potentially undermining the mutual corroboration relied upon and leading to acquittal on both charges.
- The failure to disclose the VIS deprived the defence of a significant opportunity and resulted in a miscarriage of justice.
Respondent's Arguments
- The material in the VIS did not add anything beyond what was already available to the defence.
- When read in context, the VIS was not inconsistent with the complainer's evidence but supported her credibility.
- Even if the VIS had been disclosed, there was no realistic prospect of a different verdict and no miscarriage of justice arose.
- The VIS itself need not be disclosed, but material information within it should be if it meets the statutory test; in this case, it did not.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court began by considering whether the VIS was disclosable under section 121 of the Criminal Justice and Licensing (Scotland) Act 2010, which requires disclosure of information that would materially weaken the prosecution’s case, materially strengthen the defence, or likely form part of the prosecution evidence. Section 160 clarifies that the VIS itself need not be disclosed, but material information within it should be.
Upon analysis, the Court found that the contested sentence in the VIS—stating the complainer would awaken to the Appellant "trying to initiate sex"—must be read in context. The VIS was given in response to questions about the lasting effects of the crime, assuming the crime had occurred. The broader context revealed the complainer was referring to the Appellant's conduct as akin to the rape suffered by her daughter, thus implying penetration.
The Court held that the VIS did not materially undermine the complainer’s evidence but rather supported her credibility. The defence already had access to earlier statements where the complainer denied physical or sexual abuse, and the jury was made aware of these inconsistencies. The Court concluded that the VIS did not materially weaken the prosecution case nor materially strengthen the defence case, and thus was not disclosable.
Even if the VIS had been disclosed, the Court found no realistic prospect that the verdict would have been different, and no miscarriage of justice had occurred.
The Court also addressed an error in the Note of Appeal concerning the use of a second statement (Crown Production 10), clarifying that this statement was not put to the complainer in evidence and that the alleged inconsistencies attributed to it were misplaced. The Court emphasized the importance of adhering to the parameters set out in the Note of Appeal and not shifting the grounds of appeal improperly.
Holding and Implications
The appeal is refused.
The Court’s decision affirms the conviction and sentence of the Appellant. The failure to disclose the VIS prior to trial did not constitute a miscarriage of justice as the VIS did not materially undermine the prosecution’s case or materially strengthen the defence. There are no broader legal implications or new precedent established by this decision; it directly affects only the parties involved by upholding the original conviction and sentence.