Determination following examination of facts in HMA v George Watson

High Court Edinburgh. At the conclusion of the examination of facts in this case Lord Pentland acquitted the accused of all the charges on the indictment.

8 July 2016

Lord Pentland made the following statement in court:

"George Watson ("the accused") was indicted on a number of charges of behaving in a sexually abusive manner towards two girls on numerous occasions between 1962 and 1979. Charges 1 to 3 alleged indecent conduct extending to rape perpetrated against AB, who died in February 2016. Charges 4 to 8 alleged similar conduct (again extending to rape) directed against CD. The indictment also contained a single charge (charge 9) of indecent conduct by the accused against EF, said to have been committed between October 1982 and October 1983 when she was four years of age.

At a preliminary hearing on 26 October 2015 the court determined that the accused was unfit for trial on the ground that he was suffering from dementia; this was the opinion of two consultant psychiatrists who had examined him for the purpose of the present proceedings. The accused is 82 years of age and lives in a care home. In the circumstances, the court directed that an examination of the facts should take place under and in terms of section 55 of the Criminal Procedure (Scotland) Act 1995, as amended ("the 1995 Act").

The examination of facts proceeded before me in the High Court of Justiciary in Edinburgh between 3 and 6 May 2016. The accused did not attend the hearing, but his interests were represented by senior and junior counsel. This allowed the evidence given for the Crown to be challenged and tested as appropriate. After hearing closing submissions from the Crown and the defence, I continued the case until today's date to allow me to consider the evidence and parties' submissions.

The Crown led the evidence of CD and of EF. Evidence was also led from three police officers to whom AB had given statements before her death. For the defence, evidence was led from Miss Alison Campbell, a social worker employed by Edinburgh City Council, who had been responsible for supervising the arrangements for care of the accused between about August 2012 and January 2013. At the end of the evidence I allowed the terms of the indictment to be amended in certain minor respects so as to bring the charges into line with the evidence given at the hearing.

Section 55(1)(a) of the 1995 Act provides (amongst other things) that at an examination of facts the court shall, on the basis of the evidence led, determine whether it is satisfied beyond reasonable doubt, as respects any charge on the indictment, that the accused did the act constituting the offence. It is important to note that the standard of proof that the Crown must satisfy in order to establish that the accused did the act or acts constituting the offence is the normal standard applied in the criminal courts of proof beyond reasonable doubt. It is a high standard. It is a higher standard than proof on a balance of probabilities.

In order to prove the charges on the indictment the Crown relied on the evidence of each of the three complainers. It is, therefore, necessary that I evaluate the evidence of each of these witnesses.

I shall deal firstly with the evidence given by CD. I did not find CD to be a convincing or reliable witness. Particularly in cross-examination she gave her evidence in a truculent and uncooperative manner. She had a tendency to try to evade answering perfectly reasonable questions by giving responses that were tangential and irrelevant. I regret to say that I did not form a favourable impression of her as a witness.

A number of features of the witness's evidence seemed to me to cast doubt on her reliability.

There was evidence that as an adult the complainer treated the accused as a source of income and that she allowed him to exploit her sexually in return for payment. In recent years when the accused was in hospital and later when he was in a care home, it appeared that CD used the accused's pension as a source of income for herself and her family. She accepted that she had been responsible for paying the fees for the care home and that she had allowed arrears of about £4,000 to build up. Subsequently, the complainer encouraged the accused to move from the care home to live in her own home. She acknowledged that this resulted in her receiving his pension and a carer's allowance. In the circumstances, it is reasonable to draw the inference that CD's motive in pressing for the accused to be moved from the care home to live in her home was financial. It is not easy to reconcile the desire on the part of CD for the accused to come to live in her house with her allegations that he seriously sexually abused her.

CD said in her evidence that when she discovered that the accused had done something to EF, she had gone to speak to him at the British Legion Club. Her evidence was that in the course of their conversation the accused told her what he had done to EF. CD testified that she then told the accused that he was getting off lightly because EF did not remember this aspect of matters. In her evidence in court the witness said that she was definite that this conversation had occurred.

It is important to note that, in contrast to her evidence on this aspect of matters, the witness told the police in a statement she gave on 25 September 2013 that she did not know what was meant to have happened to EF. The difference between what she said in her evidence in court and her account in her police statement seemed to me to amount to a significant discrepancy on an issue of real importance. The witness was not able to offer any convincing explanation for the difference between her two accounts. Instead she made a number of attempts to explain away the discrepancy; none of these appeared to me to be convincing. For example, at one point CD suggested that it was only after she had given her police statement that the accused had told her exactly what he had done to EF; she said that he had only disclosed the details to her when she had started to visit him in the care home. This explanation broke down when it was pointed out to the witness that by the time when she gave her statement to the police the accused had left the care home and had gone to live with her in her home.

There were a number of other aspects of CD's evidence that were unsatisfactory and unconvincing. She said that she had ended up in a police station for the purpose of providing a statement accusing the accused of abusing her because a social worker from Fife Council had advised her to do so in order to have the accused removed from her home and registered as a sex offender. This account seemed to me to be unconvincing.

CD alleged in her evidence that the accused had behaved in a sexually inappropriate manner towards nursing staff during a stay in hospital and towards carers in his care home. The social work records produced to the court provided no evidence of any such behaviour on the part of the accused.

The witness testified that she had told the manager of the care home that the accused had sexually abused her. There is no mention of this in the social work records.

CD also claimed that she had told Alison Campbell about the sexual abuse and that Miss Campbell's response had been to say that the complainer deserved a medal for agreeing to allow the accused to move into live with her. When she came to give evidence, Miss Campbell denied having any knowledge that the accused had sexually abused the complainer. She said that she would certainly have recorded any such allegation. The records contain nothing to this effect. I found Miss Campbell to be a credible and reliable witness; she gave her evidence in a careful and professional manner.

CD said in evidence that she had not encouraged AB or EF to provide statements to the police. She denied telling EF that she wanted the accused out of her house quick and that she was finding it hard to get somewhere for him to go. She also denied saying to EF that it would be easier if the accused was on the sex offenders' register. In her evidence EF at first denied that any such discussion had occurred, but when referred to her police statement she agreed that the complainer had approached her and AB and had encouraged them to provide statements to the police. EF went on to accept that the complainer had told her that she wanted the accused out of the house quick and that every piece of evidence helped.

I have given full and careful consideration to all the evidence given by CD and to the submissions made in relation to it by the Crown and the defence. I have made every allowance for the passage of time and for the unpleasant nature of the evidence that she was called upon to give. At the end of the day I have come to the conclusion, for the various reasons I have already set out, that I cannot regard the complainer's evidence as credible and reliable on any of the material issues. It would not, in my judgement, be safe to rely on the evidence of this witness, particularly in the context of applying the criminal standard of proof of beyond reasonable doubt.

In this connection, I should record that the Advocate Depute frankly accepted in his closing submissions for the Crown that there were significant difficulties in relation to the reliability of the evidence given by CD on a number of issues.

EF gave evidence about a single episode of alleged indecency which she said had taken place when she was four years of age. There was a major difficulty with her evidence because it was not consistent with what she had said in her statement to the police. In particular, the complainer said in court what the accused was alleged to have done to her. The difficulty arose when the witness was referred in cross-examination to her police statement given on 21 November 2013. She accepted that she had not told the police in this statement what she had said in court. She said that she had remembered this aspect of matters at a later stage and had told the Procurator Fiscal about it at precognition. But she then acknowledged that this had been a memory she had had since childhood. She was not able to explain why, in view of this recollection, she had not mentioned it to the police.

In connection with the evidence of this witness I have already mentioned that she at first denied having had a discussion with CD about making a statement to the police against the accused. As I have explained, EF later accepted when her police statement was put to her that such a conversation had indeed taken place.

I have carefully considered all the evidence given by EF. In my view there are significant weaknesses in her evidence. I did not find her account of what the accused allegedly did to her when she was four years old to be believable. For the various reasons already given, I am not able to regard the evidence of this witness as credible or reliable.

That leaves the evidence of AB. This comprised three statements she had given to police officers before her death on 2 February 2016. The statements were given on 1 November 2013, 28 November 2013 and 20 January 2014. Each of the police officers to whom the statements were provided gave evidence at the examination of facts. There was no issue as to whether the statements had been accurately recorded.

It is clear that in relation to charges 1, 2 and 3 on the indictment the hearsay evidence contained in AB's three statements must be characterised as decisive in the context of considering whether those charges have been proved beyond reasonable doubt. Without the evidence contained in the statements it would not be possible for the Crown to prove guilt of those charges.

From the fact that the evidence of AB falls to be regarded as decisive for the purpose of establishing proof of charges 1, 2 and 3, it follows that I must consider carefully whether there are sufficient counterbalancing factors in place to permit a fair and proper assessment of the reliability of the hearsay evidence of this witness to take place (see Al-Khawaja and Tahery v United Kingdom decided by the Grand Chamber of the European Court of Human Rights on 15 December 2011; (2012) 54 EHRR 23).

As the Grand Chamber recognised, there are obvious difficulties in evaluating the credibility and reliability of a witness whose evidence is available only in the form of hearsay statements. Such evidence cannot be tested by cross-examination and I have had no opportunity to see and hear the witness for myself.

In my opinion, there are insufficient counterbalancing factors in the circumstances of the present case. I say this for a number of reasons, which may be summarised as follows: first, there is a complete absence of credible and reliable independent evidence against which the allegations contained in the statements may be objectively tested - there are, for example, no statements given by the complainer soon after the alleged abuse occurred; secondly, there is a significant body of evidence showing that the three complainers discussed the allegations with one another over a period of some years before they provided statements to the police; thirdly, the evidence of the other two complainers, CD and EF is not credible or reliable; and finally, the accused is not capable of providing any evidence in response to the allegations made against him. In these circumstances, there are, in my judgement, insufficient safeguards available to allow me to make a fair and proper evaluation of the hearsay evidence contained in the statements provided by AB to police officers.

In any event, since I have rejected as incredible and unreliable the evidence given by CD and EF, there is no evidence available as corroboration of the evidence contained in the statements given by AB. Accordingly, there is insufficient evidence as a matter of law to prove charges 1, 2 and 3 on the indictment.

In the whole circumstances, I am not satisfied beyond reasonable doubt that the accused did any of the acts constituting the charges in the amended indictment. Under and in terms of section 55(3) of the 1995 Act I must, therefore, acquit the accused of all the charges on the indictment".