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Children's hearing admission after incorrect advice inadmissible at trial

10 July 2019

A father charged with serious sexual offences against his daughter has successfully objected to the leading at his trial of evidence that he accepted related grounds of referral to a children's hearing, when that followed legal advice, which turned out to be incorrect, that the acceptance could not be used as evidence in criminal proceedings.

Lord Matthews in the High Court upheld a preliminary objection by NH, charged with offences including oral rape against his daughter MN committed over a period when she was aged between nine and 13.

When MN was referred to the children's panel, NH and his wife did not accept the grounds of referral and a proof was held before the sheriff. Both parents were represented by counsel. After the proof was part heard, NH, after taking advice, accepted amended grounds of referral. The sheriff did not first warn NH that his acceptance might render him liable to criminal proceedings, and confirmed that the possibility had not been on his mind. NH's counsel had advised him that acceptance would have no impact on criminal proceedings, and it was on that basis that NH had accepted the grounds.

However the Crown obtained information from the reporter, founding on s 179 of the Children's Hearings (Scotland) Act 2011. It was accepted that this was the first time the Crown had attempted to use what happened in a referral proof before a sheriff in support of criminal proceedings.

In support of the objection it was argued for NH, among other points, that the principle of self-incrimination came into play and he should have been warned of the possible consequence of acceptance, and further that his rights under ECHR articles 6 and 7 had been infringed.

The Scottish Children's Reporter Administration (SCRA) appeared and argued that if the Crown sought to use the acceptance of the grounds, it would introduce a criminal element into the hearing, and mean that any relevant person likely to be an accused would be advised to deny the grounds of referral.

The Crown submitted that on the face of matters there had been a recognition between SCRA and COPFS since 2014 that there was potential for a situation such as the present one to arise, and an acknowledgment that such evidence might be admissible in criminal proceedings. On the merits, the situation was one which might reasonably be anticipated to arise in exceptional cases. This was such, due to the very serious nature of the conduct accepted, and the fact that without the evidence of acceptance of the grounds of referral there was an insufficiency of evidence to bring criminal proceedings.

Lord Matthews considered that policy was not a matter for the court, and if the approach of NH and SCRA was correct, the purposes of the statute would be frustrated.

The clear purpose behind s 179 was to allow material relating to referrals to be given on request to the Crown for the purposes of criminal proceedings. It was not merely for intelligence.

The submission that a warning should have been given to NH was misconceived. The acceptance of the grounds could properly said to be a voluntary act. NH had been given advice by his counsel and it was not for the sheriff to go behind that advice and give him a warning.

However the crux of the matter was the advice given to him. It was incorrect, albeit given in good faith and for perfectly understandable reasons. "Thus, while I have categorised the minuter’s acceptance of the grounds as voluntary, I find that its voluntariness was vitiated since it was predicated upon the advice which was given."

He concluded: "I can see no reason in principle why an objection to evidence cannot succeed when it is based on advice, the nature of which can be established and which is objectively wrong... I find that the minuter acted upon that advice and that he would not have done so had he been told that his acceptance of the grounds might be used as evidence in a criminal trial...

"In my opinion, it would be unfair for the Crown to be able to rely on the acceptance of the grounds in these circumstances and, on that limited basis, I uphold the preliminary issue minute."

Click here to view Lord Matthews' opinion.

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