The appellant was convicted of five charges of rape and assault against two complainers. He was sentenced to eight years and six months imprisonment. It was argued on behalf of the appellant that the Crown had delayed in serving an indictment on him. As a result, the evidence of the first complainer was unfair. The complainer gave an interview to police in 2016 and was subsequently diagnosed with Alzheimer’s disease. 

The second complainer reported the offences to police in 2016. On the 12th of July 2016 the first complainer was interviewed by police and a statement was noted. At this time there were no concerns about the complainer being confused or having any difficulty with her memory. 

In January 2017, the first complainer was diagnosed as suffering from Alzheimer’s; however, she continued to live independently until 2019. An indictment was serviced on the appellant on the 24th of October 2019. At this time the Crown sought to use previous statements made by the first complainer under s.259 of the Criminal Procedure (Scotland) Act 1995. This was on the basis that she was medically unfit to give her evidence. 

The application to do so was opposed by the defence on the basis that there was no certainty she was competent at the time she gave the statement to police. However, the application was granted by the judge who reasoned that there was nothing to suggest she was not competent at the time. 

It was argued on behalf of the appellant that the proceedings were unfair due to the delay. It was also put forward that the Judge’s directions were not sufficient to address the prejudice that had been caused by the admission of the statements. 

In delivering the opinion of the court, Lord Matthews stated: “It is now well established that the fact that important, even decisive evidence in a case is led using the provisions of section 259 does not of itself render a trial unfair. The Crown conceded that the evidence of JB was decisive and, assuming that concession to be correct, the issue for us is whether there were sufficient safeguards and counter-balancing factors.”

He concluded: “The statement of JB had been taken by a police officer in a relatively formal way in the first instance at least, and that police officer was available to be cross-examined. The trial judge had given robust directions on the need to exercise caution dealing with hearsay evidence and if anything these directions had been unduly favourable to the appellant. The appellant’s counsel had been able to address the jury and point out the difficulties with JB’s evidence as well as that of NB.”

As a result, the appeal was refused.