JL v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Menzies,Lord Turnbull |
| Judgment Date | 14 October 2020 |
| Neutral Citation | [2020] HCJAC 45 |
| Docket Number | No 7 |
| Court | High Court of Justiciary |
| Date | 14 October 2020 |
[2020] HCJAC 45
Lord Justice Clerk (Dorrian), Lord Menzies and Lord Turnbull
Justiciary — Evidence — Admissibility — Sexual offences — Special defence of incrimination — Naming an incriminee previously convicted of sexual abuse of complainer — Whether evidence supporting incrimination inadmissible as evidence of sexual behaviour not forming part of subject-matter of charge — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 274
Justiciary — Procedure — Sexual offences — Special defence of incrimination — Naming an incriminee previously convicted of sexual abuse of complainer — Whether evidence supporting incrimination inadmissible as evidence of sexual behaviour not forming part of subject-matter of charge — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 274
JL was charged on indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with sexual offences against one complainer. The appellant sought to incriminate an individual who had previously been convicted of sexual abuse against the same complainer. The Crown objected to the admissibility of evidence supporting the incrimination in light of sec 274 of the Criminal Procedure (Scotland) Act 1995. On 28 August 2020, at a continued preliminary hearing at the High Court of Justiciary in Glasgow before Lord Fairley, the Crown objection was upheld. The appellant, with leave of the first instance court, thereafter appealed to their Lordships in the High Court of Justiciary.
The Criminal Procedure (Scotland) Act 1995 (cap 46), sec 274, inter alia, prohibits the admitting of evidence or questions designed to elicit evidence which shows or tends to show that the complainer has, at any time, engaged in sexual behaviour not forming part of the subject-matter of the charge. Section 275 allows an application to be made for the admission of evidence otherwise prohibited by sec 274 in particular circumstances.
The appellant was indicted for sexual offences against a complainer. Another person had previously been convicted of the sexual abuse of the complainer. There was some crossover in time and locus between those charges and the charges faced by the appellant. In advance of trial, the appellant lodged a special defence of incrimination naming the person who had previously been convicted of the sexual abuse of the complainer. No application was made in terms of sec 275 to lead supporting evidence. The Crown objected to the admissibility of any evidence supporting the incrimination as being evidence of sexual behaviour not forming part of the subject-matter of the charge and, thus, prohibited by sec 274. The preliminary hearing judge upheld the Crown objection on the basis that the subject-matter of the charge included specification of the people involved in the particular sexual act. The appellant appealed against the decision of the preliminary hearing judge.
The appellant argued that the incrimination related to sexual behaviour forming part of the subject-matter of...
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