Moir (Mitchell John) v HM Advocate

Section 274(1) of the Criminal Procedure (Scotland) Act 1995 as substituted by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9) provides that in the trial of a person charged with rape or numerous other 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-para (c). Section 275(1) of the 1995 Act as substituted by the 2002 Act provides that the court may, on application made to it, admit such evidence or allow such questioning as is referred to in sec 274(1) 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. Section 275(2)(b) provides that "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. Applications require to be in writing in advance of the trial and require to be sent to the other party.

The appellant was charged with rape and sexual assault. He raised a devolution issue on the ground that the provisions of secs 274 and 275 of the 1995 Act, as amended, were inconsistent with his right to a fair trial in terms of Art 6 of the European Convention on Human Rights and Fundamental Freedoms and were accordingly invalid. The single judge refused the devolution minute. The appellant appealed. He argued that provisions were contrary to Art 6 for two main reasons (i) the excessive extent of the prohibition in sec 274 and the restricted extent to which the prohibition could be over-ridden by sec 275; and (ii) the unfairness of the procedures open to him under sec 275.

Held that: (1) the enactment of secs 274 and 275 of the 1995 Act was within the legitimate area of discretion of the Scottish Parliament, the Parliament had an evidential basis on which to exercise its judgment in the matter, the underlying policy was fully considered and tested during the legislative process and the policy justification was coherent (paras 29-32, 55, 56, 60); (2) sec 275 of the 1995 Act was a reasonable and flexible response to the problem and a legitimate means of achieving the legislative objective, and the effect of the legislation was not disproportionate per se (paras 34-38, 55, 56, 61); (3) the procedural provisions were not unfair, because the court had a discretion in terms of sec 275B(1) to allow a late application, and the application only required reasonable specification of certain matters (paras 39-41, 55, 56); (4) while at the preliminary hearing on the application the presiding judge would not have as full and accurate an assessment of the evidential issues as the trial judge, the accused was put at no disadvantage, and there was nothing unreasonable in the power of the court further to restrict the scope of a leave already granted (paras 42-44, 55, 56); (5) the entitlement of the Crown to cross-examine the accused and his witnesses without any restriction and to do so without having to give advance notice to the defence did not involve any real issue under Art 6, and nor did disclosure to the Crown of the proposed line of defence (paras 45-52, 55, 56); and appeal refused.

Observed (per Lord Justice-Clerk) a prior course of cohabitation by a complainer with an accused would not constitute engaging in sexual behaviour not forming part of the subject-matter of a charge, and such cohabitation would be outwith the purview of sec 274(1) (para 27).

Observed (per Lord Justice-Clerk and Lord Johnston) the issue of whether or not a fair trial is prejudiced by the legislation is better decided after a trial than before it (paras 53, 62).