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HIGH COURT OF JUSTICIARY
[2024] HCJ 3
2024/001610
OPINION OF LORD FAIRLEY
in causa
HIS MAJESTY'S ADVOCATE
against
MJ
Applicant
Crown: Mackay, AD; the Crown Agent
Applicant: Lenehan, KC; Robert Kerr Partnership
11 September 2024
[1]
At a preliminary hearing on 5 September 2024, I refused paragraph 1 a) of an
application made on behalf of the applicant under section 275 of the Criminal Procedure
(Scotland) Act 1995. This opinion sets out my reasons for that decision.
[2]
The indictment contains fifteen charges of alleged sexual offending. It is not
necessary to specify the details of those charges other than to note that they are offences to
which section 288C of the Criminal Procedure (Scotland) Act 1995 applies. As such, they
engage the provisions of section 274 of that Act.
[3]
Paragraph 1 a) of the application sought permission to admit the following evidence:
"That during the period of the libel in charge 11, immediately preceding the parties'
marriage, the accused and [the complainer] were in a sexual relationship."
2
[4]
Charge 11 contains allegations of sexual offending said to have occurred on two
occasions during a time ambit of almost 6 years. The applicant has lodged a special defence
of consent. The charge refers to the complainer as the applicant's wife. I was told, however,
that the complainer has stated at precognition that some or all of the behaviour referred to in
the charge may have occurred before the parties were married.
[5]
The application did not explain why the evidence referred to in paragraph 1 a)
would engage the provisions of section 274. I noted, however, a suggestion in chapter 9 of
the Preliminary Hearing Bench Book (at paragraph 9.11.1) that practitioners would be well
advised to seek permission under section 275 if they wish to lead any evidence
that a
relationship was affectionate, intimate or sexual in nature
. That advice appears to be based
upon a hypothesis that any evidence - even in the most general terms - as to relationship
status may tend to show that a complainer has engaged in sexual behavior not forming part
of the subject matter of the charge. It also appears to be based upon what is described in the
Bench Book as a "passing" comment in AW v HMA 2022 JC 164 at paragraph 35 and upon a
comment by the Lord Justice Clerk (Gill) in Moir v HMA 2005 JC 1 at paragraph 35. The
terms of the Bench Book may, therefore, explain why applications similar to that made in
this case are now commonplace in the preliminary hearing court.
[6]
I refused paragraph 1 a) of the application on the basis that the evidence sought to be
elicited did not engage the provisions of section 274.
3
Sections 274 and 275
[7]
Section 274, which sets out restrictions on questioning in cases involving sexual
offences, is in the following terms:
"274 Restrictions on evidence relating to sexual offences
(1) In the trial of a person charged with an offence to which section 288C of this Act
applies, 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-paragraph (c) above.
(2) In subsection (1) above, `complainer' means the person against whom the offence
referred to in that subsection is alleged to have been committed; and the reference to
engaging in sexual behaviour includes a reference to undergoing or being made
subject to any experience of a sexual nature."
[8]
Section 275 provides a mechanism by which such questions may be asked, provided
permission has been given by the court. It states inter alia:
"275 Exception to restrictions under section 274
(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
4
(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."
Analysis and reasons
[9]
Many questions about relationship status might be said to show or tend to show, as a
matter of inference, that a complainer has previously engaged in sexual conduct beyond the
terms of the libel. These include questions such as "did you live together?" or "were you in
a relationship?" Although applications under section 275 for permission to ask questions of
that kind are now regularly made, such evidence is not struck at by section 274 (see Moir v
[10]
As Lord Rodger of Earlsferry noted in DS, at para [75], that conclusion can be tested
relatively simply by attempting to apply section 275(1)(a). Section 275(1)(a) permits
applications to be made to the court to admit questions about sexual behaviour if - and only
if - they relate "to a specific occurrence or occurrences of sexual behaviour". An
interpretation of section 274 which excluded general questions about relationship status
such as "did you live together?" would have the effect that such questions could never be
asked. That is because although they would be excluded by section 274, they could never be
admitted under section 275 because they would not be questions which related to "a specific
occurrence or occurrences of sexual behaviour". That result cannot have been what
Parliament intended. The same can be said of questions like "were you married?" It seems
equally unlikely that Parliament ever intended the question, "do you have children?" to be
struck at by section 274, albeit that such a question might be said to be circumstantial
evidence of prior sexual behaviour.
5
[11]
Any hypothesis that such questions, though excluded by section 274, could
competently be admitted under section 275 as "specific facts demonstrating the complainer's
character" does not bear close scrutiny. The status of being married, of living together or of
having children are not things that bear upon character. In any event, it is clear that the use
of the word "character" in section 275(1)(a)(i), is intended to relate back to the reference in
section 274(1)(a) to "evidence which shows or tends to show that the complainer is not of
good character". It would require a very strained interpretation of the Act to require that the
status of being married, of living together or of having children should be characterised as
evidence of bad character in order to establish a route to the admissibility of that evidence
under section 275(1)(a)(i).
[12]
These same considerations apply with equal force to questions about the status of
any relationship which may have existed between a complainer and an accused and, more
particularly, to questions about whether any such relationship was, as a generality, sexual or
merely platonic. Such questions, provided that they remain general and do not encroach
upon specific episodes or instances of sexual behaviour, cannot have been intended to
engage section 274 for the same reason as was identified in DS. The only limit upon their
admissibility is, therefore, that of common law relevance.
[13]
In coming to that view, I recognise that it might be said to be at odds with what the
Bench Book describes as a "passing" comment in AW at paragraph 35. That case, however
concerned an application to lead very detailed evidence of specific acts of sexual behaviour.
The use of the expression "sexual relationship" within the application was merely a
preamble to that. It was also the case in AW that the sexual behaviour was removed in time
from the offences libelled, and was thus irrelevant. It does not seem, therefore, that there
was any need to consider how an application under section 275 could competently have
6
been framed to lead evidence restricted to the generality of a relationship being sexual rather
than platonic. So far as Moir is concerned, the comment by the Lord Justice Clerk at
paragraph 35 seems, on careful examination, to have been a reference only to common law
relevance. When read with paragraph 27 it is clearly a recognition of what was said by
Lord Steyn in R v A (No 2) [2002] 1 AC 45 at paragraphs 32 and 45, that a comparison can be
made between the potential relevance of evidence of an ongoing relationship on the one
hand and the likely irrelevance of evidence of an isolated episode in the past on the other.
[14]
On the issue of common law relevance, I respectfully agree with and adopt what was
said by Lord Turnbull in HMA v NB [2020] HCJ (unreported). It is, of course, very
important that complainers are not exposed to irrelevant questioning and that the decision-
making process of the jury is not clouded by irrelevant considerations. General questions
about relationship status can, however, be admissible at common law where their purpose
and effect is simply to establish how the accused and the complainer knew each other or
came to be in the situation where the offence was allegedly committed. Not to permit that
would leave what Lord Turnbull described in NB as "an inappropriate evidential vacuum".
[15]
Experience suggests that it is both normal and inevitable in most sexual offences
trials that a complainer who gives evidence of a sexual assault will also wish to give general
evidence of the existence and nature of any underlying relationship with the accused in
order properly to explain how the crime came to be committed. Similar considerations may,
in appropriate circumstances, apply to an accused person. It must also be remembered that
the standard jury directions make clear that the existence of a prior sexual relationship is
irrelevant to the issue of consent on the occasion to which the charge relates. It does not
follow, however, that juries should be placed in an evidential vacuum by being deprived of
such evidence. Provided that any evidence of relationship status is limited to explaining
7
why the parties were in each other's company at the time and in the circumstances of the
event charged, and provided also that questioning does not encroach into specific episodes
or details of previous sexual conduct, it ought generally to be admissible. That scenario is
very different from an attempt to lead evidence of specific sexual interactions remote from
the subject matter of the libel as was the case in AW. Such matters are likely to be irrelevant
and / or collateral at common law and thus inadmissible.
[16]
The application made in this case did not seek to elicit any evidence of specific
episodes of sexual conduct. It was confined to the period of the libel and sought only to lead
evidence that the status of the pre-marital relationship between the applicant and the
complainer at the material time was, as a generality, sexual rather than merely platonic.
Evidence of that kind does not, in my view, engage section 274. That conclusion was
sufficient to determine the issue before me at the preliminary hearing and was the reason for
my refusal of that section of the application as being unnecessary.
[17]
Returning to the issue of relevance, unnecessary applications under section 275 are
not an appropriate vehicle to secure rulings on common law admissibility (see P(M) v
HMA 2022 SCCR 1 at paragraph 15), and the court must do what it can to discourage such
an approach. In this case, however, and without expressing a concluded view, I would have
thought that a general question as to the status of the relationship between the applicant and
the complainer would be likely to be relevant and admissible to explain how the parties
came to be in a situation where sexual conduct happened at the times and places specified
on the occasions to which charge 11 relates. If I am wrong about that, other procedures are
available before and at the trial diet further to examine that issue and thus to prevent any
irrelevant questioning.
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