Latest criminal cases, including identification evidence; sexual history evidence (s 275); fitness for trial; sentencing

Identification evidence

We have come a long way on this vital front in recent years.

In Orr v HM Advocate [2021] HCJAC 42 (10 September 2021) the appeal centred on the quality of the evidence of identification. There was CCTV footage taken in and around the locus of a serious knife assault. The images showed the assailant to be wearing a fur lined parka jacket with the hood down. The face was readily visible. Later the figure was seen without jacket, gesturing towards the complainer, and later with a shiny object in his hand. At trial the complainer could not identify his assailant and another witness said the assailant was not the appellant.

Police later viewed CCTV images. Two had never seen the appellant in person before; both identified him as the person who had been wearing the parka, and said the attacker was the same person. A further officer could not assist. The appellant gave no evidence at trial.

The court held there was sufficient evidence. No timeous objection had been taken. The appellant had a Mohican haircut and there had been no material change in his appearance. In addition to police evidence the jury could make up their own mind as to whether the man in the dock was the assailant shown in the CCTV images.

Section 275 applications

I have dealt at length many times in recent articles with s 275 applications seeking to admit evidence of the complainer’s sexual activities other than immediately around the offence. These applications should be dealt with before the trial commences.

However in JW v HM Advocate [2021] HCJAC 41 (12 February 2021) the focus was on s 275(9) of the Criminal Procedure (Scotland) Act 1995, which contains the power for the trial judge to review and if he sees fit to revoke orders made in this context at the pre-trial stage. The appellant faced numerous charges of rape involving six complainers. A s 275 application was granted in June 2019 in relation to the defence line that the complainers had all been in consensual relationships with the appellant.

In light of recent decisions of the High Court tightening the law in this regard, the trial judge had to consider a motion by the Crown to review the s 275 application. The trial judge duly disallowed the applications and this decision was appealed. The appeal court refused the appeal. Whereas initially the Crown had not opposed the application, now it did. In light of a reconsideration of all the circumstances the trial judge had taken the correct approach.

Fitness for trial

Cases involving accused persons with mental health problems often present special difficulties.

In Patrick v HM Advocate [2021] HCJAC 37 (17 January 2020) the decision to desert the original proceedings with a view to re-indicting for trial was the subject of a bill of advocation. The judge, after hearing an examination of the facts following medical reports in which the complainer was deemed unfit for trial, later saw reports that the complainer was now fit to stand trial. The Appeal Court held that the judge had the power to desert the original proceedings with a view to the Crown re-raising them, and refused the bill.

Subsequently the complainer was tried and unanimously acquitted by the jury.


I conclude by referring to two recent sentence appeals.

Marshall v HM Advocate [2021] HCJAC 40 (17 August 2021) concerned a 35 year old appellant convicted after trial of assaulting and later attempting to murder a friend, as well as a charge of assaulting his partner when he was intoxicated.

Needless to say the attempted murder charge was the most serious, involving stabbing the victim in the neck. The appellant had a lengthy record back to 2002 and the social work report identified him as having a very high risk of offending. While the Appeal Court agreed in large part with the judge, the sentence of 12 years’ imprisonment with an extension period of six years was excessive, and it was reduced to 10 and five years respectively.

The appellant in Malcolmson v HM Advocate [2021] HCJAC 39 (24 August 2021) was a secondary school teacher, aged 23 and 33 at the time of the offences, who was convicted after trial of sexual offences against two of his female pupils. The girls were sexually assaulted when under 18, when the appellant stood in a position of trust. One of the offences involved digital penetration and penile penetration of the girl’s mouth. He was intoxicated at the time. He had been dismissed from the teaching profession. He denied the offences and expressed no remorse, but it was submitted he had otherwise been of good character.

The sheriff had imposed a sentence of 15 months’ imprisonment on charge 1 and six months concurrent on charge 2. This was reduced to a cumulo sentence of 12 months’ imprisonment on appeal

The Author

Frank Crowe, sheriff at Edinburgh

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