DS v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judgment Date | 22 May 2007 |
| Neutral Citation | [2007] UKPC D1 |
| Date | 22 May 2007 |
| Docket Number | No 1 |
| Court | Privy Council |
Privy Council
Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Justiciary - Procedure - Sexual offences - Restrictions on questioning of complainer on various matters - Requirement to make application to court to question complainer - Requirement for disclosure of accused's previous convictions where application successful unless objection upheld - Fair trial - Criminal Procedure (Scotland) Act 1995 (cap 46), secs 274, 275, 275A - European Convention on Human Rights and Fundamental Freedoms, Art 6(1), (3)
Words and phrases - "Behaviour" - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 274(1)(c)
Words and phrases - "Interests of justice" - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 275A
Words and phrases - "Sexual behaviour" - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 274(1)(b)
Section 274 of the Criminal Procedure (Scotland) Act 1995, as substituted by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), provides: "(1) 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- (a) is not of good character (whether in relation to sexual matters or otherwise); (b) has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge; (c) has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer- (i) is likely to have consented to those acts; or (ii) is not a credible or reliable witness; or (d) has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above. (2) In subsection (1) above- 'complainer' means the person against whom the offence referred to in that subsection is alleged to have been committed; and the reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature." Section 275 of the 1995 Act as substituted by the 2002 Act provides, inter alia: "(1) The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that- (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; or (ii) any condition or predisposition to which the complainer is or has been subject; (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. (2) In subsection (1) above- (a) the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature; (b) 'the proper administration of justice' includes- (i) appropriate protection of a complainer's dignity and privacy; and (ii) ensuring that the facts and circumstances of which a jury is made aware are … relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury's verdict". Section 275A of the 1995 Act as introduced by the 2002 Act provides, inter alia: "(1) Where, under section 275 of this Act, a court on the application of the accused allows such questioning or admits such evidence as is referred to in section 274(1) of this Act, the prosecutor shall forthwith place before the presiding judge any previous relevant conviction of the accused. (2) Any conviction placed before the judge under subsection (1) above shall, unless the accused objects, be- (a) in proceedings on indictment, laid before the jury; (b) in summary proceedings, taken into consideration by the judge. (3) An extract of such conviction may not be laid before the jury or taken into consideration by the judge unless such an extract was appended to the notice, served on the accused under section 69(2) or, as the case may be, 166(2) of this Act, which specified that conviction. (4) An objection under subsection (2) above may be made only on one or more of the following grounds- (a) where the conviction bears to be a relevant conviction by virtue only of paragraph (b) of subsection (10) below, that there was not a substantial sexual element present in the commission of the offence for which the accused has been convicted; (b) that the disclosure or, as the case may be, the taking into consideration of the conviction would be contrary to the interests of justice; (c) in proceedings on indictment, that the conviction does not apply to the accused or is otherwise inadmissible; (d) in summary proceedings, that the accused does not admit the conviction. … (7) In entertaining an objection on the ground mentioned in paragraph (b) of subsection (4) above, the court shall, unless the contrary is shown, presume that the disclosure, or, as the case may be, the taking into consideration, of a conviction is in the interests of justice. … (10) For the purposes of this section a 'relevant conviction' is … - (a) a conviction for [certain sexual offences]; or (b) where a substantial sexual element was present in the commission of any other offence in respect of which the accused has previously been convicted, a conviction for that offence, which is specified in a notice served on the accused under section 69(2) or, as the case may be, section 166(2) of this Act."
Article 6 of the European Convention on Human Rights and Fundamental Freedoms provides, inter alia: "(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law … (3) Everyone charged with a criminal offence has the following minimum rights … (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
The appellant was indicted for trial in the sheriff court at Paisley on a charge of indecent assault against a 17-year-old woman. He was served with a notice that it was intended to place before the court a previous conviction on indictment in Paisley Sheriff Court relating to indecent behaviour towards a girl aged between 12 and 16 years of age. The appellant's defence was consent. The appellant wished to adduce evidence showing or tending to show that the complainer was a person to whom the criteria in sec 274(1)(a) and (d) of the 1995 Act applied. He lodged an application under sec 275. Because of his relevant previous conviction he also lodged a devolution minute in which he maintained that secs 274, 275 and 275A of the 1995 Act, as amended by the 2002 Act, were incompatible with his right to a fair trial in terms of Art 6 of the Convention. The sheriff referred the devolution issue to the High Court of Justiciary, which held that there was no incompatibility. The appellant appealed to the Judicial Committee of the Privy Council. The appellant argued that there was a material risk that his previous conviction for a sexual offence would be disclosed to the jury and that its disclosure would prejudicially influence their assessment of the evidence, so depriving him of a fair trial. He also argued that the cumulative effect of secs 274, 275 and 275A was to exert pressure on him, contrary to his right to a fair trial, not to defend himself in the manner that his sec 275 application indicated. The Advocate-depute and the Advocate General argued that laying the appellant's convictions before the jury would not make the trial unfair, not least because the judge was not to allow the convictions to be disclosed if it was not in the interests of justice. They argued that his previous convictions would only be relevant to the jury's consideration of the credibility of the appellant's position.
Held that: (1) sec 275A must be approached on the basis that the main reason why previous relevant convictions are to be disclosed or taken into consideration is because they may be regarded as relevant to the accused's propensity to commit other sexual crimes, a further reason is that they may have a bearing on the accused's credibility, if this is put in issue, as compared with that of the complainer, and it is in the light of these aims that the question whether it is in the interests of justice for the convictions to be disclosed or taken into account must be addressed (paras 42, 43, 83-85, 88, 97, 103, 104); (2) the word "behaviour", with reference to what constitutes non-sexual behaviour for the purposes of sec 274(1)(c), did not extend to evidence that is directed simply to words that the complainer may have said to a third party which bear on her credibility or reliability, and the phrase "sexual behaviour" in sec 274(1)(b) did not extend to a prior course of cohabitation between the accused and the complainer (paras 46, 75-77, 88, 97, 107); (3) the placing of a comma between the words "or other behaviour" and "or to specific facts" in sec 275(1) was necessary to avoid an undue restriction on the accused's right to a fair trial (paras 47, 71, 88, 97, 107); (4) sec 275A(7) ought to be read, compatibly with the accused's Art 6 right, as doing no more than set out the default position that would apply if the accused did not make an objection, but the...
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