LL v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-Clerk (Dorrian),Lady Paton,Lord Brodie |
| Judgment Date | 15 June 2018 |
| Neutral Citation | [2018] HCJAC 35 |
| Date | 15 June 2018 |
| Court | High Court of Justiciary |
| Docket Number | No 18 |
[2018] HCJAC 35
High Court of Justiciary
Lord Justice-Clerk (Dorrian), Lady Paton and Lord Brodie
Advocate (HM) v McMillan (1846) Ark 209
Advocate's (Lord) Reference (No 1 of 2001) (Re) 2002 SLT 466; 2002 SCCR 435
Bark v Scott 1954 SC 72; 1954 SLT 210
DS v HM Advocate [2007] UKPC D1; 2007 SC (PC) 1; 2007 SLT 1026; 2007 SCCR 222; [2007] HRLR 28; 24 BHRC 412
Dickie v HM Advocate (1897) 24 R (J) 82; 5 SLT 120
M v HM Advocate (No 2) [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361
Moir v HM Advocate 2005 1 JC 102; 2004 SCCR 658
R v Wilson [1991] 2 NZLR 707
Davidson, FP, Evidence (W Green, Edinburgh, 2007), para 2.08
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Hamilton Grierson ed, T & T Clark, Edinburgh, 1887), para 7
Gordon, GH, The Criminal Law of Scotland (3rd Christie ed, W Green/Scottish Universities Law Institute, Edinburgh, 2000), vol 2, paras 33.01, 33.09
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, 302
Walker, AG, and Walker, NML, Law of Evidence in Scotland (2nd Chalmers and Ross ed, T & T Clark, Edinburgh, 1983), para 7.7.2
Walker, AG, and Walker, NML, Law of Evidence in Scotland (4th Ross and Chalmers ed, Bloomsbury Professional, Haywards Heath, 2015), para 7.7.2
Justiciary — Evidence — Admissibility — Whether evidence of a previous sexual encounter between the accused and the complainer relevant
Justiciary — Procedure — Sexual offences — Application by defence to question complainer on previous sexual encounter between her and accused — Whether application correctly refused — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 275
LL 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 and a charge of sexual assault. The defence lodged a special defence of consent. An application under sec 275 of the Criminal Procedure (Scotland) Act 1995 was presented on behalf of the appellant. At a preliminary hearing, on 28 March 2018, the procedural judge (Lady Stacey) refused the application. The appellant appealed to their Lordships in the High Court of Justiciary under sec 74 of the 1995 Act.
Section 275 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 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, in cases of offences to which section 288C of this Act applies, 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”.
The indictment libelled charges of rape and sexual assault alleged to have been committed by the appellant in July 2016. The defence lodged a special defence of consent. A sec 275 application was presented on behalf of the appellant in order that evidence might be admitted at trial that the appellant and the complainer knew each other and had engaged in consensual sexual intercourse in October 2015. It was argued that this evidence would allow the jury to properly consider the full extent of the relationship and was relevant to the appellant's reasonable belief. The Crown did not oppose the application. The application was refused.
The procedural judge found that consenting to sexual intercourse on an occasion in October 2015 shed no light on whether there was consent to intercourse or a reasonable belief that there was consent in July 2016. The requirements of sec 275(1)(a) had not been met. Even if wrong in that conclusion, the judge held that the probative value of the evidence did not outweigh the need to protect the complainer's dignity and privacy. The Crown was offering to prove that a degree of force had been used and the judge had not been told of any circumstances which had led to a reasonable, albeit mistaken, belief on the part of the appellant.
On appeal, the appellant argued that evidence of a previous consensual sexual encounter was relevant — in terms of the common law — to whether the complainer consented and whether the accused had a reasonable belief that she consented. The evidence satisfied sec 275(1) in that it related to a specific occurrence of sexual behaviour; it was relevant to whether the appellant was guilty of the offence with which he had been charged; and its significant probative value outweighed the extremely limited risk to the proper administration of justice. The fact that the complainer had volunteered the information about the previous intercourse during her police interviews meant that leading the evidence would involve a limited infringement of her privacy.
The Crown opposed the appeal notwithstanding the position taken at the preliminary hearing. The Crown argued that there were significant dissimilarities in circumstances as between the encounter in October 2015 and July 2016. The Crown further argued that evidence about the consensual intercourse in October 2015 was irrelevant as to whether the complainer had given her free agreement to intercourse with the appellant in July 2016 and whether the appellant then had a reasonable belief that the complainer had given such agreement.
Held that: (1) the fact that there was free agreement and reasonable belief as to that agreement on one occasion did not make it more or less likely, as a matter of generality, that there was free agreement and reasonable belief as to that agreement on another occasion many months later (para 14); (2) if a previous act of intercourse was to be relevant to the issue as to whether the complainer consented on a subsequent occasion or to the issue as to whether an accused reasonably believed that the complainer was consenting, particular circumstances would have to be averred to demonstrate the connection between otherwise unrelated events and such averments were not made in this case (para 14); (3) given the Crown's position on the significant dissimilarities between the two incidents of intercourse which would require to be explored, the result would be a prolongation of proceedings and an obscuring of the real issues (para 21); (4) if consideration of the terms of sec 275 of the 1995 Act was required, notwithstanding the view taken on the relevance of the evidence, the court was not satisfied that proof of the previous sexual encounter was relevant to establishing whether the appellant was guilty of the offence with which he is charged, the probative value of the evidence was slight in relation to the central issues and the leading of the evidence would be an inappropriate intrusion into the complainer's dignity and privacy (para 22); and appeal refused.
Dickie v HM Advocate (1897) 24 R (J) 82 and Moir v HM Advocate2005 1 JC 102considered, Bark v Scott1954 SC 72 and R v Wilson[1991] 2 NZLR 707mentioned and M v HM Advocate (No 2)2013 SLT 380applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Dorian), Lady Paton and Lord Brodie, for a hearing, on 18 May 2018.
At advising, on 15 June 2018, the opinion of the Court was delivered by Lord Brodie—
Opinion of the Court— [1] This is an appeal in terms of sec 74(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the Act’) against the decision of the judge at a preliminary hearing on 28 March 2018 to refuse an application under sec 275 of the Act.
[2] The appellant has been indicted to stand trial in the High Court in respect of two charges:
‘(001) on [a date in July 2016] at [an address] you LL did assault [the complainer] lie in a bed with her, kiss her on the neck, put your arms around her, touch her on the vagina and on the breast, lift her dress, remove her underwear, restrain her, penetrate her vagina with your penis and you did thus rape her to her injury: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009 [(asp 9)].
(002) on [same date as in charge 001] at [the same address as in charge 001] you LL did sexually assault [the complainer] attempt to kiss her and kiss her: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009.’
[3] At the preliminary hearing on 28 March 2018 the appellant pleaded not guilty to both charges. His counsel confirmed that a defence statement and a special defence of consent had been lodged. The defence statement contains the following information:
‘a. The nature of...
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