PETITION TO THE NOBILE OFFICIUM BY RR AGAINST (FIRST) HER MAJESTY'S ADVOCATE AND (SECOND) [2021] ScotHC HCJAC_21 (18 March 2021)

PETITION TO THE NOBILE OFFICIUM BY RR AGAINST (FIRST) HER MAJESTY'S ADVOCATE AND (SECOND) [2021] ScotHC HCJAC_21 (18 March 2021)

The court held that the petitioner was entitled to petition the nobile officium as she had no other remedy and the circumstances were extraordinary and unforeseen. The decision to grant the section 275 application without advising the complainer was contrary to law and must be quashed. The complainer's position must be presented to the court by the Crown after communication, to ensure her rights to information and effective participation are upheld, but she does not become a party to the proceedings.

Citation
[2021] ScotHC HCJAC_21
Parties
Petitioner: RR; First Respondent: Her Majesty's Advocate; Second Respondent: LV; Intervener: Rape Crisis Scotland
Jurisdiction
Scotland
Judgment Date
18 March 2021
Procedural Posture
Petition to the Nobile Officium / Full Bench Hearing, Post Preliminary Hearing
Outcome
Petition granted in part
Legal Topics
Complainer Participation, Sexual History Evidence, Victims' Rights, Article 8 ECHR, Victims and Witnesses (scotland) Act 2014, Directive 2012/29/eu
Criminal Law Human Rights Law Evidence Law Complainer Participation Sexual History Evidence Victims' Rights Article 8 ECHR Victims and Witnesses (scotland) Act 2014 +1 more

Case Brief

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Parties

RR

Petitioner

Her Majesty's Advocate

First Respondent

LV

Second Respondent

Rape Crisis Scotland

Intervener

Procedural Posture

Petition to the Nobile Officium / Full Bench Hearing, Post Preliminary Hearing

Legal Issues

  1. 1 Whether a complainer has a right to be heard at a section 275 hearing under Scots law and EU law
  2. 2 Whether failure to advise the complainer of a section 275 application breaches her rights under Article 8 ECHR and the Victims' Rights Directive
  3. 3 Whether the nobile officium is competent to grant remedies in these circumstances

Ratio Decidendi

The court held that the petitioner was entitled to petition the nobile officium as she had no other remedy and the circumstances were extraordinary and unforeseen. The decision to grant the section 275 application without advising the complainer was contrary to law and must be quashed. The complainer's position must be presented to the court by the Crown after communication, to ensure her rights to information and effective participation are upheld, but she does not become a party to the proceedings.

Court Disposition

Petition granted in part

Orders

  • Declarator that the decision of the High Court dated 2 October 2019 granting the section 275 application in respect of parts of paras 1b) and 1c) was contrary to law and is quashed.
  • Application on these parts to be reconsidered in light of the petitioner's position, which must be presented by the Crown after communication with the petitioner.