Keir (AP) (Appellant) v His Majesty's Advocate (Respondent) (Scotland)
Case ID: UKSC 2023/0123
Case summary
Issues
(1) Does the default exclusion, by operation of law, of false-allegation evidence breach Article 6, European Convention on Human Rights ('ECHR')?
(2) Does the non-justiciability of a prosecutor's discretion when charging offences breach Article 6, ECHR?
Facts
On 7 October 2022, the Appellant was convicted, by majority, in the High Court of Justiciary of raping an intoxicated and unconscious complainer incapable of giving or withholding consent, contrary to Section 1, Sexual Offences (Scotland) Act 2009 ('SOSA 2009').
Originally, by indictment served on 23 September 2021z, the Appellant was charged with two further charges of rape and sexual assault against the same complainer, contrary to Sections 1 and 3, SOSA 2009, respectively. The Respondent applied to abandon these charges without further proceedings on them (under the Scottish doctrine of pro loco et tempore). The Appellant challenged this as oppressive, but the Respondent's application was granted. The Appellant did not, at this stage, allege an issue of human rights compatibility.
By 19 April 2022, the Appellant had applied to lead evidence on these abandoned charges, pursuant to Section 275, Criminal Procedure (Scotland) Act 1995 ('CPSA 1995'), which concerned the complainer's purported consent to the sexual activities composing the subject-matter of the abandoned charges. This application was denied and an appeal against this denial refused. No compatibility issue was raised throughout this application.
The Appellant sought to appeal his conviction to the High Court of Justiciary, on the grounds that:
- Lady Stacey wrongly granted the Respondent's application to abandon two charges pro loco et tempore, given that this was oppressive.
- Lord Pentland wrongly refused the Appellant's application to lead evidence concerning the abandoned charged, pursuant to Section 275, CPSA 1995.
- The combined effect of these decisions rendered the Appellant's trial unfair, contrary to Article 6, ECHR.
Between March and June 2023, the High Court of Justiciary rejected his appeal at the first- and second-sift stages, and refused permission to appeal to the Supreme Court.
The Appellant now appeals to the Supreme Court.
Parties
Appellant(s)
ADK
Respondent(s)
His Majesty's Advocate
Intervener
(1) Council of the Law Society of Scotland (2) The Faculty of Advocates
Rape Crisis Scotland
Appeal
Justices
Lord Reed, Lord Hodge, Lord Hamblen, Lady Rose, Lady Simler
Hearing start date
21 October 2024
Hearing finish date
23 October 2024