JW v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Turnbull,Lord Pentland |
| Judgment Date | 12 February 2021 |
| Court | High Court of Justiciary |
| Docket Number | No 1 |
[2021] HCJAC 41
Lord Justice Clerk (Dorrian), Lord Turnbull and Lord Pentland
Advocate (HM) v JG [2019] HCJ 71; 2019 GWD 36-575
Advocate (HM) v MA [2007] HCJ 15; 2008 SCCR 84; 2008 SCL 296; 2007 GWD 39-677
Advocate (HM) v Selfridge [2021] HCJAC 2; 2021 SLT 976
CH v HM Advocate [2020] HCJAC 43; 2021 JC 45; 2020 SLT 1063; 2020 SCCR 410; 2020 GWD 33-424
GW v HM Advocate [2019] HCJAC 23; 2019 JC 109; 2019 SLT 643; 2019 SCCR 175
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
Macdonald v HM Advocate [2020] HCJAC 21; 2020 JC 244; 2020 SCCR 251; 2020 GWD 20-275
Moir v HM Advocate 2005 1 JC 102; 2004 SCCR 658
RN v HM Advocate [2020] HCJAC 3; 2020 JC 132; 2020 GWD 4-57
Justiciary — Evidence — Sexual offences — Review of applications allowed under sec 275(1) — Whether review of applications competent without change of circumstances — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 275(9)
JW was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate. The indictment libelled 19 charges, including ten charges of rape, against six complainers. The appellant made applications under sec 275 of the Criminal Procedure (Scotland) Act 1995 to lead certain evidence in respect of four of the complainers. On 17 June 2019, the preliminary hearing judge (Lady Stacey) allowed the applications. At a continued preliminary hearing, on 26 October 2020, on the Crown's motion, the trial judge (Lord Weir) disallowed the applications under sec 275(9). The appellant appealed under sec 74 of the 1995 Act to their Lordships in the High Court of Justiciary.
Section 275(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides, so far as material, that the court may, on application made to it, and if satisfied of certain matters, admit evidence or allow questioning showing or tending to show that a complainer has engaged in sexual behaviour not forming part of the subject-matter of the charge. Section 275(6) provides, “The court shall state its reasons for its decision under subsection (1) …, and may make that decision subject to conditions which may include compliance with directions issued by it.” Section 275(7) provides, “Where a court admits evidence or allows questioning under subsection (1) …, its decision to do so shall include a statement: (a) of what items of evidence it is admitting or lines of questioning it is allowing; (b) of the reasons for its conclusion that the evidence to be admitted or to be elicited by the questioning is admissible; (c) of the issues at the trial to which it considers that that evidence is relevant.” Section 275(9) provides, “Where evidence is admitted or questioning allowed under this section, the court at any time may: (a) as it thinks fit; and (b) notwithstanding the terms of its decision under subsection (1) … or any condition under subsection (6) …, limit the extent of evidence to be admitted or questioning to be allowed.”
The appellant was charged on indictment with 19 offences, including ten of rape, against six complainers. He made applications under sec 275(1) of the 1995 Act. He sought to lead evidence of consensual intercourse with four of the complainers over various periods. The preliminary hearing judge allowed the applications in part, on the basis that the evidence was relevant to each complainer's creditability and reliability. The Crown had not opposed the leading of evidence relating to those paragraphs at the preliminary hearing. At a continued preliminary hearing, fixed for the day before the start of the trial, the Crown moved that the applications be reviewed and disallowed in terms of sec 275(9). The trial judge granted the motion. The appellant appealed.
The appellant submitted that, while the trial judge had had the power to disallow the applications, it had not been appropriate to do so. A single judge should not overturn the decision of another judge on a question of the admissibility of evidence where neither the facts nor the law have changed. That would allow a single judge to overturn a decision of another judge simply because they disagreed with it. A single judge should not overturn the decision of another judge without knowing the basis on which the applications had been granted. That basis would be set out on appeal (in the form of a report), but may not be fully revealed in an interlocutor. An accused person was entitled to certainty in advance of trial as to which evidence was, and which evidence was not, admissible. The appellant did not address the merits of the applications.
The Crown submitted that its failure to oppose the applications at the preliminary hearing was due to its understanding of the statutory provisions at that time. It was clear by the time of the continued preliminary hearing that the evidence sought to be led was irrelevant. There were no limits on the court's power of review under sec 275(9). A trial judge had a continuing duty to ensure that irrelevant evidence was not admitted.
Held that: (1) the terms of sec 275(9) of the 1995 Act were clear and unambiguous and, where evidence was admitted or questioning allowed in terms of an application under sec 275, the court retained the power to limit the extent of the evidence to be admitted or the questioning to be allowed. It could do so in part, in respect of certain paragraphs of an application. It could disallow the entirety of questioning previously allowed. The power was exercisable at any time, including during the trial, and regardless of whether there had been a change of circumstances (paras 20, 21); (2) the combination of the application itself and the interlocutor setting out the reasons for the decision in accordance with sec 275(6) and (7) should ensure that a judge exercising the power under sec 275(9) was not at a disadvantage in the absence of a report from the judge who allowed the application (para 27); (3) the court may exercise the power under sec 275(9) ex proprio motu. If there were sound reasons to believe that the effect of an application previously approved would be to admit evidence which was inadmissible and in breach of the protections afforded by the statutory regime, the court must review the matter under subsec (9) (para 24); (4) parties may move the court to use its power under sec 275(9) to limit the extent of evidence or question. However, subsec (9) did not confer on a party a right to obtain a general reconsideration of an application. To justify the making of a motion, the party must identify a sound basis for the proposed limitation, such as the prospect of the admission of inadmissible evidence or another material factor which was likely adversely to affect the fairness of the trial (para 25); (5) while the law had not changed since the preliminary hearing judge approved the application, three decisions in 2020 (CH v HM Advocate; Macdonald v HM Advocate; RN v HM Advocate) had led to an enhanced, if belated, appreciation of the full significance of the legislation and how it should operate. This enhanced appreciation was sufficient justification for the Crown's motion (para 26); and appeal refused.
RN v HM Advocate 2020 JC 132, Macdonald v HM Advocate2020 JC 244 and CH v HM Advocate2021 JC 45approved, Moir v HM Advocate2005 1 JC 102disapproved in part and HM Advocate v Selfridge2021 SLT 976referred to.
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