CH v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Justice Clerk (Dorrian),Lord Menzies,Lord Glennie,Lord Turnbull |
| Judgment Date | 13 October 2020 |
| Neutral Citation | [2020] HCJAC 43 |
| Docket Number | No 6 |
| Court | High Court of Justiciary |
| Date | 13 October 2020 |
[2020] HCJAC 43
Lord Justice General (Carloway), Lord Justice Clerk (Dorrian), Lord Menzies, Lord Glennie and Lord Turnbull
Advocate (HM) v JG [2019] HCJ 71; 2019 GWD 36-575
Advocate (HM) v JW [2020] HCJ 11; 2020 SCCR 174; 2020 GWD 11-156
Advocate (HM) v MA [2007] HCJ 15; 2008 SCCR 84; 2008 SCL 296; 2007 GWD 39-677
Brady v HM Advocate 1986 JC 68; 1986 SLT 686; 1986 SCCR 191
Cinci v HM Advocate 2004 JC 103; 2004 SLT 748; 2004 SCCR 267
DS v HM Advocate [2007] UKPC D1; 2007 SC (PC) 1; 2007 SLT 1026; 2007 SCCR 222; [2007] HRLR 28; 24 BHRC 412; The Times, 12 June 2007
GW v HM Advocate [2019] HCJAC 23; 2019 JC 109; 2019 SLT 643; 2019 SCCR 175
Kinnin v HM Advocate 2003 SCCR 295
Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46; [2005] 1 All ER 667; [2005] RPC 9; 28 (7) IPD 28049; (2004) 148 SJLB 1249
LL v HM Advocate [2018] HCJAC 35; 2018 JC 182; 2020 SLT 634; 2018 SCCR 189
M v HM Advocate (No 2) sub nom CJM v HM Advocate [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361
Marley v Rawlings [2014] UKSC 2; [2015] 1 AC 129; [2014] 2 WLR 213; [2014] 1 All ER 807; [2014] 2 FLR 555; [2015] 1 FCR 187; [2014] WTLR 299; 16 ITELR 642; [2014] Fam Law 466; 158 (4) SJLB 49; The Times, 28 January 2014
Moir v HM Advocate sub nom MM v HM Advocate (No 2) 2005 1 JC 102; 2004 SCCR 658
Oliver v HM Advocate [2019] HCJAC 93; 2020 JC 119; 2020 GWD 3-48
O'Shea v HM Advocate [2014] HCJAC 137; 2015 JC 201; 2015 SLT 46; 2015 SCCR 66; 2015 SCL 230
RN v HM Advocate [2020] HCJAC 3; 2020 JC 132; 2020 GWD 4-57
R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1; [2001] 2 Cr App R 21; 165 JP 609; [2001] HRLR 48; [2001] UKHRR 825; 11 BHRC 225; [2001] Crim LR 908; 165 JPN 750; Daily Telegraph, 29 May 2001; The Times, 24 May 2001; The Independent, 22 May 2001 and [2001] EWCA Crim 4; [2001] Crim LR 389; 145 SJLB 43; The Times, 13 February 2001
R v Cockroft (1870) 11 Cox 410
R v Cooper sub nom R v C [2009] UKHL 42; [2009] 1 WLR 1786; [2009] 4 All ER 1033; [2010] 1 Cr App R 7; [2009] MHLR 189; [2010] Crim LR 75; (2009) 153 (31) SJLB 30; The Times, 7 August 2009
R v Darrach 2000 SCC 46; [2000] 2 SCR 443; 259 NR 336; 191 DLR (4th) 539; 137 OAC 91; 148 CCC (3d) 97; 36 CR (5th) 223; 78 CRR (2d) 53; 47 WCB (2d) 360; [2000] SCJ No 46 (QL)
R v Riley (1887) 18 QBD 481
R v Seaboyer; R v Gayme[1991] 2 SCR 577; 4 OR (3d) 383; 128 NR 81; 83 DLR (4th) 193; 48 OAC 81; 7 CR (4th) 117; 66 CCC (3d) 321; 6 CRR (2d) 35; 13 WCB (2d) 624; [1991] SCJ No 62 (QL)
SJ v HM Advocate [2020] HCJAC 18; 2020 SLT 642; 2020 SCCR 227
Thomson v HM Advocate HCJAC, 13 December 2019, unreported
Home Office, Report of the Advisory Group on the Law of Rape (‘the Heilbron report’) (Cmnd 6352, 1975), paras 3, 100, 134
Matthews (Lord), and Beckett (Lord), Preliminary Hearing Bench Book (Judicial Institute for Scotland, Edinburgh, July 2020), para 9.2.4 (Online: https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/preliminary-hearings-bench-book.pdf?sfvrsn=e0e66eef_2 (23 October 2020))
Walker, AG, and Walker, NML, Law of Evidence in Scotland (4th Ross and Chalmers ed, Bloomsbury Professional, Haywards Heath, 2015), paras 7.1, 8.5.1
Justiciary — Evidence — Admissibility — Accused charged with rape of a complainer while she was intoxicated and thereby unable to give consent — Whether evidence of consensual sexual intercourse between accused and complainer on other occasions was relevant — Whether such evidence was collateral
Justiciary — Procedure — Sexual offences — Application by defence to elicit evidence of consensual sexual intercourse between accused and complainer on occasions not forming part of subject-matter of charge — Whether application correctly refused to that extent — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 275
CH was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling a charge of rape. An application under sec 275 of the Criminal Procedure (Scotland) Act 1995 was presented on behalf of the appellant. On 8 January 2020, in the High Court of Justiciary at Glasgow, the preliminary hearing judge (Lady Stacey) granted the application in part, but refused it to the extent of evidence that the complainer had consented to sexual intercourse with the appellant on other occasions. The appellant appealed to their Lordships in the High Court of Justiciary.
The Criminal Procedure (Scotland) Act 1995 (cap 46), sec 274(1), provides that, in the trial of a person charged with certain sexual offences, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer, inter alia, “(a) is not of good character (whether in relation to sexual matters or otherwise)” or “(b) has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge”. Section 275(1) further provides that the court may, on application made to it, admit such evidence or allow such questioning if satisfied, inter alia, “(a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating– (i) the complainer's character …; (b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.”
The appellant was charged with rape of the complainer, on an occasion in July 2017, while she was intoxicated with alcohol and incapable of giving or withholding consent. The appellant denied having sexual intercourse with the complainer on any occasion when she was so incapable by intoxication. By application to the court in terms of sec 275(1) of the 1995 Act, the appellant sought to admit or elicit evidence of the events said to have taken place during a 48 hour period surrounding the alleged offence, including the circumstances in which the appellant came to be introduced to the complainer, and the occurrence of sexual intercourse between them on two occasions prior to, and one occasion after, but not at the time of the alleged offence. The appellant maintained that he refused to engage in any sexual activity with the complainer at the time of the alleged offence because he had an aversion to the smell of alcohol. The complainer denied that any consensual sexual intercourse took place between them. The appellant sought to put his version of events to the complainer and the complainer's friend, A, in order to rebut the complainer's account.
On behalf of the appellant, it was argued that his account, if accepted, would impact negatively on the assessment of the complainer's credibility and/or reliability, thereby demonstrating her character in terms of sec 275(1)(a)(ii). The sexual activity was so closely related to the alleged offence in time, place and character that it was relevant in terms of sec 275(1)(b), and not collateral. The evidence was significant and its probative value was likely to outweigh any risk of prejudice to the proper administration of justice arising from its admission in terms of sec 275(1)(c) on the basis that the appellant might otherwise be prevented from giving his evidence in any meaningful way, beyond a blanket denial of the offence, which would adversely impact upon his credibility. An application was not required in respect of evidence to the effect that the complainer “came on to him” and behaved in a disinhibited manner at the time of the alleged offence.
On behalf of the Crown, it was argued that these matters were not readily identifiable, were disputed, and were collateral. They were irrelevant at common law, which failing they were prohibited under sec 274 and none of the overriding exceptions in sec 275 was made out. Other incidents of consensual activity had no bearing on the central issues for the jury. Consensual sexual activity following upon non-consensual activity could not allow an inference that the prior activity was more likely to have been consensual. Any probative value of the evidence would be insufficient to outweigh the risk of prejudice, including to the appropriate protection of the complainer's dignity and privacy.
Held that: (1) the granting of an application under sec 275 of the 1995 Act was based on the operation of common law and statutory rules rather than the exercise of a general discretion, and the touchstone for consideration of an application was the admissibility of evidence at common law; if the evidence would not be admissible at common law, it could not be admitted in terms of the statute, and the statutory scheme itself provided a general rule that evidence in the categories specified in sec 274 was not admissible in sexual cases unless it came within the specified exceptions, cumulatively, of sec 275 (Lord Justice General (Carloway), paras 6, 7; Lord Justice Clerk (Dorrian), paras 34, 39–41; Lord Turnbull, para 109); (2) pre- or post-charge conduct would be relevant only if it had a reasonably direct bearing on a fact at issue in the trial, in the sense of making the fact more or less probable, and particular circumstances would have to be averred, such as a couple in a close and affectionate or cohabiting relationship, in order to demonstrate the connection between prima facie unrelated events. Expressions of willingness to engage in sexual intercourse at some time in the future were irrelevant to the question of whether, on an entirely different and subsequent occasion, such consent was in fact given, and evidence of a subsequent consensual act was collateral to the question of whether a prior act was...
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