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In the Scottish Courts

Undoubtedly the major event in the Scottish courts over the past few months was what became known as the "Glasgow rape case". Now that the trial has taken place, it is time to look back with the benefit of hindsight on one of the most extraordinary happenings in Scottish criminal justice for many years. Media interest has of course centred on the sensational and sordid aspects of the trial but little examination has been made so far of a number of important legal issues which were raised throughout the proceedings. The case is shortly to be reported in the Scots Law Times under the name H. v. Sweeney & Others. The factual background was highly exceptional. In May 1981 three youths were indicated at the instance of the Lord Advocate to stand trial at Glasgow High Court on charges of rape and assault. The trial was, however, postponed until the June sitting when it was discovered that the complainer was unable to give evidence because of her mental condition and the stress which the Crown psychiatrist felt she would experience in having to come to court. The indictment was allowed to fall and in September 1981 it was concluded that the complainer's condition was unlikely to improve materially in the foreseeable future. There seemed no prospect of being able to proceed to trial in the near future, so the Crown decided that it would not be justifiable to keep the possibility of prosecution hanging over the accused for an indefinite period. Letters were therefore sent to each accused (who had been on bail throughout) indicating that the Crown would not be proceeding further; these letters had the effect of barring the Crown from raising a further indictment (see Thom v. H.M. Advocate, 1976 J .C. 48; (1976) 40 J .c.t, 263). In early January 1982 an English judge took the amazing step of fining an accused who was convicted before him of the crime of rape. The Scottish newspapers, looking for something Scottish to say about rape, discovered that three youths who had been charged with this crime, had apparently walked free because of executive discretion. The story of "Miss X" was soon widely disseminated in the press; questions were asked in Parliament and Mr. Nicholas