RR v HM Advocate

The Appeal Court of the High Court of the Justiciary has ruled that a nobile officium petition made by the complainer in a rape case is competent, after she was not notified that the accused intended to lead evidence of her sexual history at trial.

The petitioner was only made aware that the accused had made such an application under s.275 of the Criminal Procedure (Scotland) Act 1995 four months after the Trial judge granted it in part. Following an intervention in the original case by Rape Crisis Scotland, the petitioner argued that such a delay in notifying her was unjust.

The accused at the original trial, who was also named as the second respondent for the petition
case, sought to lead evidence that the petitioner enjoyed certain kinds of sex and that he and the petitioner had engaged in consensual sex whilst on holiday.

The petition was heard by the Full Bench, including the Lord Justice-General and the Lord Justice-Clerk. At the hearing, the petitioner argued that her petition for nobile officium was competent on the basis that the circumstances were so extraordinary that no normal remedy existed. She furthermore sought to argue that her rights under Article 8 of the ECHR and Article 10 of the Victims’ Rights Directive were engaged. Rape Crisis Scotland also sought to argue that the delay in notifying her prevented her from fully participating in the trial.

In response, the Crown argued that the facts of the case were not extraordinary enough to allow for nobile officium to be engaged. They further argued that complainers do not have a general right to participate in trials and any change to this should be made by the Scottish Parliament, not the judiciary. 

The second respondent, who appeared as the accused at the original trial, argued similarly
to the Crown, adding that complainers were required to answer any relevant questions and that this should defeat the Article 8 argument. The Appeal Court held, with the opinion being delivered by Lord Carloway, that the petition was competent. This was on the grounds that the complainer was denied her right to be heard at the Preliminary Hearing and that there was indeed no right or mechanism of appeal under the legislation. Lord Carloway further added: ‘At the stage of determining competency, there is no immediate concern that the right to be heard conflicts with the statutory regime in the 1995 Act. Whether it will do so or not must depend upon the nature and extent of the right and how it might be secured.’

Addressing the petitioner’s arguments in respect of her Article 8 rights and how they related to
s.275, the Court held that: ‘This will almost always mean that the complainer must: be told of the content of the application; invited to comment on the accuracy of any allegations within it; and be asked to state any objections which she might have to the granting of the application.’ The court held that due to the engagement of Article 8, that the nobile officium petition was competent.