Her Majesty's Advocate v. G. & Ors [2009] ScotHC HCJ_06 (23 December 2009)

Her Majesty's Advocate v. G. & Ors [2009] ScotHC HCJ_06 (23 December 2009)

It would be inappropriate to attempt to dispose of the defence objection to admissibility of the child complainers' evidence as a preliminary issue before trial, as the reliability of the evidence cannot be properly assessed without hearing it. The matter should be determined at trial, where the judge and jury can evaluate all evidence, including expert testimony.

Citation
[2009] ScotHC HCJ_06
Parties
Prosecution: Her Majesty's Advocate; First Accused: G; Second Accused: Unnamed Second Accused; Third Accused: Unnamed Third Accused
Jurisdiction
Scotland
Judgment Date
23 December 2009
Procedural Posture
Criminal / Preliminary Hearing (continued)
Outcome
Defence motion to determine admissibility at preliminary hearing refused; objection deferred to trial.
Legal Topics
Admissibility of Evidence, Child Witness, Fair Trial, Special Measures for Vulnerable Witnesses, Cross Contamination of Evidence, Article 6 ECHR
Criminal Law Evidence Law Human Rights Law Admissibility of Evidence Child Witness Fair Trial Special Measures for Vulnerable Witnesses Cross Contamination of Evidence +1 more

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Parties

Her Majesty's Advocate

Prosecution

G

First Accused

Unnamed Second Accused

Second Accused

Unnamed Third Accused

Third Accused

Procedural Posture

Criminal / Preliminary Hearing (continued)

Legal Issues

  1. 1 Whether the evidence of two child complainers, alleged to be cross-contaminated and unreliable due to investigative procedures, should be excluded as inadmissible prior to trial on the basis of Article 6 ECHR (right to fair trial).
  2. 2 Whether the objection to admissibility should be determined at a preliminary hearing or deferred to the trial.

Ratio Decidendi

It would be inappropriate to attempt to dispose of the defence objection to admissibility of the child complainers' evidence as a preliminary issue before trial, as the reliability of the evidence cannot be properly assessed without hearing it. The matter should be determined at trial, where the judge and jury can evaluate all evidence, including expert testimony.

Court Disposition

Defence motion to determine admissibility at preliminary hearing refused; objection deferred to trial.

Orders

  • Special measures for taking child witness evidence approved as proposed by the Crown.
  • Arrangements for taking evidence of D on commission to proceed.