HMA v NH 2019

NH, who was accused of sexual offences against his daughter, has appealed against a decision to prosecute him successfully. NH was charged as a result of admitting grounds at a children’s referral and this provided corroboration, which the Crown used to raise the criminal proceedings.

The disclosures by the child were originally made in 2017 and investigated but there was no evidence to corroborate this and therefore this could not be taken any further at this time. However, the matter was referred to the children’s reporter and the Minuter accepted amended grounds of referral after legal advice.

The High Court ruled however that in these circumstances this evidence was inadmissible because he had not been advised by experienced solicitors that this may be the case moving forward and also the sheriff had not put any warning in place that accepting these grounds may lead to criminal proceedings – although this was not common practice.

However, the High Court did rule that the crown are entitled to take this information from the children’s reporter and it serves as a warning for further proceedings. This is the first time the crown has attempted to use referral proceedings to support a criminal trial. The crown stated this was an exceptional case with very serious grounds. The accused’s objection to the admissibility in the case was successful.

In concluding the matter Lord Matthews said: “It is accepted on all hands that material such as this has never been used in a prosecution before. In the first place, there was no statutory provision in relation to the exchange of information prior to 2011 and, in the second place, it may be that considerations of policy have prevented its being done.

Thirdly, there may not previously have been a case which could properly be called exceptional. Parliament has clearly intended that there should be such an exchange and the purposes are also evident. There is nothing retrospective about the law on which the Crown are seeking to rely.’’ The appeal court ultimately concluded however that due to wrong legal advice being given the minute should be upheld. The appeal judges stated he understood why this advice had been given as no criminal proceedings had arisen in the past. The matter will therefore not proceed any further.