RN v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Glennie,Lord Turnbull |
| Judgment Date | 16 January 2020 |
| Neutral Citation | [2020] HCJAC 3 |
| Date | 16 January 2020 |
| Court | High Court of Justiciary |
| Docket Number | No 14 |
[2020] HCJAC 3
Lord Justice Clerk (Dorrian), Lord Glennie and Lord Turnbull
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
DS v HM Advocate [2007] UKPC D1; 2007 SC (PC) 1; 2007 SLT 1026; 2007 SCCR 222; [2007] HRLR 28; 24 BHRC 412; The Times, 12 June 2007
LL v HM Advocate [2018] HCJAC 35; 2018 JC 182; 2018 SCCR 189; 2018 GWD 23–282
M v HM Advocate (No 2) sub nom CJM v HM Advocate [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Grierson ed, T & T Clark, Edinburgh, 1887), vol I, paras 386–389
Walker, AG, and Walker, NML, Law of Evidence in Scotland (4th Ross and Chalmers ed, Bloomsbury Professional, Haywards Heath, 2015), para 9.4.2
Justiciary — Evidence — Admissibility — Sexual offences — Evidence of false allegations made by complainer against others — Whether evidence relevant and admissible at common law — Whether evidence admissible under statute — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 275
RN was charged on indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, at the sheriff court in Ayr with sexual offences against one of his young sons and against a former partner. The appellant made an application, in terms of sec 275 of the Criminal Procedure (Scotland) Act 1995 (cap 46), to lead certain evidence relating to both complainers. At a continued first diet, on 25 November 2019, the application was refused in part by the sheriff (J Montgomery). The appellant appealed to their Lordships in the High Court of Justiciary.
The Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), sec 274(1), provides, inter alia, that the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that a complainer in relation to sexual offences is not of good character or has engaged in such behaviour as might found the inference that he or she is not a credible or reliable witness. Section 275 provides, “(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.”
The appellant was indicted with sexual offences against one of his young sons (‘A’) and against his former partner (‘B’), the mother of the child. In advance of trial, the appellant lodged an application with the court, in terms of sec 275 of the 1995 Act, to lead evidence that, inter alia, A had, on a number of specified occasions, made a series of false allegations of sexual abuse against teaching staff at his school and that his mother, B, had induced, or attempted to induce, both A and his brother to do so. Further, the appellant sought to elicit evidence of an interlocutor following a proof at which referral grounds relative to the false allegations made by A against the teaching staff were found to have been established by the sheriff. The Crown opposed the application in so far as it related to those matters. The sheriff refused those parts of the application as raising collateral matters and granted the application in respect of additional matters to which the Crown had no opposition. The appellant appealed against the refusal and argued that the sheriff had erred in concluding that the material was not admissible at common law and that, in any event, the evidence met the test for admissibility in terms of sec 275(1). The Crown contended that the evidence was not admissible at common law and that, even if the evidence were relevant, it was inadmissible as collateral.
Held that: (1) the evidence relating to allegations against teaching staff had no connection, direct or indirect, with the facts at issue and to admit it would involve derailing the trial on a side issue, and it was precisely the kind of evidence which was excluded for reasons of convenience and expediency and was inadmissible as collateral (para 16); (2) the interlocutor from the court was unclear and evidence of it was, in any event, inadmissible as collateral and even had it been capable of bearing any inference of the kind referred to by the appellant, it was well understood that a determination in one case was generally not admissible as evidence in another and, thus, there was a more fundamental objection to its admissibility and the sheriff had been correct to refuse to allow the evidence to be admitted (paras 17, 18); (3) the Crown's stance in relation to any application under sec 275 of the 1995 Act was not determinative of whether the evidence should be allowed; the legislation was quite clear that evidence of the kind referred to in sec 274 of the Act was not admissible and, if such evidence were to be admitted, it could only be because the court had properly and carefully considered the matter and had been satisfied that all three aspects of the cumulative test in sec 275(1) had been met, and the evidence sought to be elicited in the additional paragraphs of the application should not have been admitted and the application fell to be refused in its entirety (paras 20, 27); and appeal refused.
Observed that: (1) before consideration of the statutory provisions could arise, the court required to be satisfied that the proposed evidence was relevant and admissible at common law, the fundamental question being whether the evidence sought to be led had a “reasonably direct bearing on the subject matter under investigation” and even evidence which had a degree of relevance could nevertheless be inadmissible as collateral (para 22); (2) if the evidence would be admissible at common law, then the starting point in turning to consider the statutory provisions was that evidence of the kind referred to in sec 274(1) of the 1995 Act was inadmissible and the court was only permitted to admit such evidence where it had been satisfied that the tests in sec 275(1) of the Act had been met and that an exception to the rule against admissibility should be made (paras 23, 24); (3) the test in relation to probative value required not just that the evidence sought to be elicited was of significant probative value but that the probative value was sufficiently significant that it was likely to outweigh any risk of prejudice to the administration of justice from its being admitted and the consideration of the administration of justice required the court to address the appropriate protection of a complainer's dignity and privacy and the proportionality of admitting the evidence (para 25); and (4) in preparing...
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