Appeal By Xy Against Hma
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2022] HCJAC 2 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2020/000254/XC |
| Date | 12 January 2022 |
| Published date | 19 January 2022 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 2
HCA/2020/000254/XC
Lord Malcolm
Lord Turnbull
Lord Pentland
OPINION OF LORD MALCOLM
in
Appeal
by
XY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: K Johnston, sol adv; Martin Johnston and Socha
Respondent: A Prentice, QC, sol adv AD; Crown Agent
12 January 2021
[1] I am grateful to Lord Pentland for setting out the background and the circumstances
of this appeal. However I regret I am unable to adhere to the view of your Lordships that it
shou ld be refused.
[2] The appeal raises a stark issue not addressed in the many recent cases concerning
applications under section 275 of the Criminal Procedure (Scotland) Act 1995. It can be
expressed as follows – if an accused person accepts that sexual activity as described in an
2
indictment occurred but at a later date when the complainer was of age, is such a line of
defence to be allowed?
[3] The point can be illustrated by a hypothetical example. Mr A is charged with having
had unlawful sex with a child. This is said to have occurred in 1983 when the complainer
was 15 years of age. Mr A’s position is that he did have sex with the complainer but in 1984
when she could consent. Wh en this scenario was put to the advocate depute he submitted
that any questioning or evidence in support of this defence would be inadmissible at
common law as being irrelevant or as raising a collateral issue.
[4] It is true that the circumstances of this case are more complicated than the
hypoth esis. For example charge 2 is one of rape, though it can be noted that before the
preliminary hearing judge the Crown indicated that in the light of the complainer’s account
it is likely that it will be relying on the alternative verdict of unlawful intercourse with a
child. And there are some parts of the libel which are denied outright – hence the
amendment to th e application to insert the necessary specification . It follows that the timing
point applies to only some of the specific allegations made by this complainer, albeit the
most serious. Furthermore there are other charges involving different complainers which are
not the subject of this application. Nevertheless none of the specific facts of this case detract
from the crisp issue raised by Ms John ston’s submissions. She contends that the appellant
shou ld be allowed to present the defence case on the particular allegations in full. She will
not be able to indicate that sexual intercourse did not occur. If the application is refused the
defence will not be able to suggest it happened at a later date. The complainer will be able
to speak to it happening, the accused will not . It could be put to the complainer that it did
not happen when she says, but this invites the question – well when does he say it occurred?
If the complainer gives supportive detail which is consistent with the event, for example as
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XY v HM Advocate
...and HM Advocate [2022] HCJAC 2 Lord Malcolm, Lord Turnbull and Lord PentlandNo 8 Justiciary — Evidence — Accused charged with lewd, indecent and libidinous practices and behaviours and rape of complainer when she was under age — Whether evidence of consensual sexual relationship when compla......