Sj Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Pentland,Lord Turnbull,Lord Malcolm |
| Neutral Citation | [2020] HCJAC 18 |
| Court | High Court of Justiciary |
| Date | 28 April 2020 |
| Docket Number | HCA/XC000010/20 |
| Published date | 28 April 2020 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 18
HCA/XC000010/20
Lord Malcolm
Lord Turnbull
Lord Pentland
OPINION OF LORD MALCOLM
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
SJ
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: S McCall, QC; John Pryde & Co for Levy & Macrae, Glasgow
Respondent: A Edwards , QC, AD; Crown Agent
28 April 2020
[1] The preliminary hearing judge rejected paragraph 1(a) of the application made under
section 275 of the Criminal Procedure (Scotland) Act 1995 on the view that evidence of
earlier sexual behaviour between the complainer and the accused is of no relevance to the
subject matter of the charge. Your Lordships would refuse the appeal essentially for this
reason. There is support for the proposition in recent decisions: see LL v HMA 2018 JC 182;
2
RG v HMA [2019] HCJAC 18; Lee Thomson v HMA 13 December 2019 (unreported), referred
to in Lord Turnbull’s opinion in the present case; and JW v HMA [2020] HCJ 11.
[2] Before exploring this matter, while I am grateful to Lord Turnbull for setting out the
circumstances of the present appeal, I wish to say a little more as to how the discussion in
respect of paragraph 1(a) developed. Reliance was placed on police statements by the
complainer, including that on the night in question she was unsure about having the
appellant in her house, and that when he arrived she was nervous and shaky (statement of
14 January 2019). There had been no sexual behaviour between them at or after the
Hogmanay party. There had been messaging between them in the intervening week. He
“flirted” with her but she did not do likewise as she was not interested in him. It was
anticipated by the defence that the Crown would build a case to the effect that the accused’s
sexual interest in the complainer having been rebuffed, he pestered her until she let him into
her house when the offences occurred. There is evidence from witnesses on the Crown list,
including police officers who had viewed CCTV evidence from the hotel, which, it is said,
permits a different interpretation as to the complainer’s attitude to the appellant; her
previous involvement with him; whether they had spent time alone together, and as to his
conduct in messaging her. The appellant wishes to lead evidence designed to correct what
would otherwise be a misleading picture as to the true nature of the relationship between
them. It would counter any suggestion that the complainer was uncomfortable in his
presence and would suggest that she was sympathetically disposed towards him. He had
gone through marital problems and she had recently experienced a break up.
[3] At the outset of the appeal hearing the advocate depute outlined how, as a result of
discussions with defence counsel, the Crown would limit the evidence of the complainer, all
with a view to restricting any need for evidence along the lines set out in the application. In
3
her submissions Ms McCall QC asserted that the messaging texts arose out of the time they
spent getting to know each other better. This was the background to and reason for the
appellant’s visit. She did not wish to be “hamstrung” when exploring the messages with the
complainer. (They had been deleted so their exact content is apparently not available.)
Counsel wishes to lead evidence that the appellant and the complainer were more than just
acquaintances. The jury should be allowed to assess her evidence that she was nervous and
uncomfortable against that background. The appellant says that she was also being flirty in
the messages, and she invited him to come round. It would be difficult to confine the
evidence as to the background to the restricted parts the Crown says it will lead.
[4] In the course of Ms McCall’s submissions the Crown intervened to say that the
complainer will state that she did invite the complainer to her house on the day in question.
Ms McCall submitted that this was bound to open up the question as to why she did that.
The defence might disagree with her evidence on that matter. There were many such
uncertainties rendering it difficult now to say with any confidence as to how the trial will
develop. Counsel indicated that she was content not to ask about sexual intercourse the
previous weekend, but the kissing and cuddling took place in public in front of witnesses,
and was recorded on CCTV. The defence is anxious to avoid the jury having an inaccurate
impression as to the nature of the relationship between the parties. The impact on the
complainer’s dignity and privacy was at the lower end of the scale.
[5] For the Crown, the advocate depute stated that the complainer has no memory of
being alone with the appellant in the early hours of the new year. She had consumed a large
amount of alcohol. She just remembers waking up alone, fully clothed in her mother’s bed
with her handbag and phone missing. There would have to be some evidence as to the lead
up to the alleged events , if only to show that the appellant was not a stranger who broke
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