The Crown lodged an appeal against the judge’s decision at trial to refuse the leading of a docket which outlined that the accused, had previously raped an ex-partner by removing a condom during consensual sexual intercourse. 

The Respondent, Brian Loughlin, was accused of assault and rape of a number of previous partners. The appellant sought to corroborate three of the charges through the use of a docket. The docket allowed evidence to be led from another of the respondent’s ex-partners whereby he had behaved in a similar way. 

The docket detailed that on various occasions between 1998 and 2001, the respondent had removed a condom during consensual sexual intercourse and continued to penetrate her without her consent. The defence objected to the docket on the basis that the only libel of non-consensual sexual activity was after the removal of the condom and that no application had been made by the Crown to lead evidence of consensual sexual activity. 

The advocate depute intended to lead evidence from the complainer that she had been raped by the respondent several times over the period libelled. 

At trial the judge sustained the objection on the basis that the Crown had not provided fair notice of what they were intending to prove at trial. The advocate depute then moved to amend the indictment by inserting the words ‘all’ before ‘without her consent’. However, this was not allowed as it was argued that the character of the offending behaviour would changed. 

The Crown on appeal argued that the docket should have been considered in light of the statement which was given to police. The docket had narrated that the conduct was on various occasions and over a period of time at different locations. 

Lord Carloway in discussing the terms of the docket stated: “Despite the Crown’s protestations to the contrary, the libel in the docket is defective in that it does not cover, and thus give fair notice of, the testimony which the Crown seek to adduce relative to the non-consensual sexual activity involving NA, other than any ‘stealthing’ episodes. That material cannot be adduced unless the libel in the docket is amended. If it is not amended, what are very serious substantive charges, which involve the complainer MM, will not be capable of proof.”

However, Lord Carloway stated that the Crown amendment ought to have been allowed: “It is not suggested that the respondent will suffer any prejudice, beyond that consequence. It is on that basis that the court considers that the trial judge erred. It is in the interests of justice that the amendment should be allowed. The trial judge ought, although he was not initially asked to do so, to have allowed amendment and consequently repelled the objection.”

The court allowed the amendment and remitted the case to the trial judge.