Man facing trial for sexual offences fails in appeal to lead evidence of ‘false allegations’

The Appeal Court of the High Court of Justiciary ruled that the issues raised were “collateral” and therefore “inadmissible” as evidence.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Turnbull, heard that the appellant “RN” was facing two charges of sexual assault by penetration - one committed against his son “A” when the boy was aged between two and eight, and the other against his partner “B”, the child’s mother.

‘False allegations’

The appellant lodged an application under section 275 of the Criminal Procedure (Scotland) Act 1995, which allows exceptions to the restrictions on evidence relating to sexual offences.

The application was seeking to elicit evidence that: 1. between September and December 2018 B repeatedly induced and attempted to induce her sons to make “false allegations” of sexual abuse against teaching staff at their school; 2. that an interlocutor of a sheriff at Ayr, following a proof at which referral grounds were established, confirmed the facts averred in the application; 6 that A had repeatedly made false allegations against teaching staff while being interview about the allegations against the appellant.

Two further paragraphs, which were granted “of consent”, were: 4. that between June 2018 (effectively the conclusion of the libel) and the present day, B had induced A to make false allegations against the applicant, forming the subject matter of charge 1; and 5. that between June and August 2018 B attempted to induce her other son, C, to make false allegations of abuse against the applicant.

The issues at trial to which the evidence was said to be relevant were: that credibility and reliability are central to the case; that the appellant denied the charges and “maintained” that the child had been “influenced” by his mother to make false allegations against him; that the false allegations against the teachers were closely related in time and character to those against the appellant and thus relevant in the trial of the allegations against the appellant - the former having been “judicially determined to be false”.

The sheriff refused paragraphs 1, 2 and 6 as raising collateral matters, but the applicant appealed.

‘Relevant evidence’

In advance of the appeal hearing, the court indicated that it also wished to be addressed on paragraphs 4 and 5, since a decision “of consent” did not constitute the judicial determination required by the legislation.

On behalf of the appellant it was submitted that the sheriff had “erred” in concluding that the material was not admissible at common law.

In support of the application it was argued that the complainer had engaged in “behaviour” in terms of section 274(1)(c) which could lead to an inference that he was “not a credible or reliable witness” and thus was struck at by the legislation; and that it “met the test for admissibility” in terms of section 275(1).

It was submitted that the evidence demonstrated that the mother was engaged in a course of conduct or a pattern of behaviour which involved “getting the children to tell lies” about adults for her own purposes, which “relevant” in terms of the allegations made against the appellant.

The facts underlying paragraphs 1, 2 and 6, and by association paragraphs 4 and 5, were established as a matter of fact by the interlocutor pronounced by the sheriff at Ayr in proceedings finding grounds of referral established in respect of both sons.

‘Collateral issues’

Refusing the appeal, the judges ruled that the sheriff was “entirely correct” to refuse to allow the evidence.

Delivering the opinion of the court, the Lord Justice Clerk said: “In our view it is apparent even from the brief terms of paras 1,2, and 6 as noted above that they raise collateral issues… In the present case to allow the evidence would move the focus from the evidence relating to the charges against the appellant onto alleged behaviour on the part of B which is not clearly specified, is disputed, and would involve derailing the trial on a side issue. It is precisely the kind of evidence which is excluded for reasons of convenience and expediency. 

“The further one explored the nature of the allegations, and the way in which the matter was to be presented, the more apparent it became that the material in question was collateral. The ‘joint minute’ for example, illustrating some of the material which the appellant would wish to rely on, contained many examples of material which is very clearly collateral. 

“The agreement was essentially that various agencies in discussion assessed those allegations and either considered them unfounded or expressed concerns thereanent: this is virtually a classic description of collateral evidence, namely that other people considered matters, looked at the facts and made their own separate assessments.”

The court considered that the interlocutor relied on provided “no assistance”.

Lady Dorrian continued: “In the first place, the interlocutor is ambiguous as to what it actually is. Separate grounds were lodged in respect of each child. The interlocutor purports to be a finding in relation to the grounds relating to C, not A, yet makes a supervision order in respect of A. From this material, it is impossible to determine what the findings relating to A actually were. 

“It is abundantly clear that this too is a very clear, classic, case of collateral material. Indeed, it is because material such as this is collateral that collateral material is not admissible.

“Although we were not referred to any authorities on the matter, it is well understood that, prior convictions aside, a determination in one case, is generally not admissible as evidence in another, even between two civil cases. Thus, even had the interlocutor been capable of bearing any inference of the kind referred to for the appellant, there is a much more fundamental objection to its admissibility. The sheriff was thus in our view entirely correct to refuse to allow the evidence to be admitted.”

In relation to paragraphs 4 and 5, the judges observed that it was not open to the court to “abrogate responsibility” simply because the Crown did not oppose an application.

“Whether the Crown does or does not oppose the application cannot be determinative of whether the evidence should be allowed,” the Lord Justice Clerk said, adding: “The legislation is quite clear that evidence of the kind referred to in section 274 is not admissible. If it is to be admitted it can only be because the court has properly and carefully considered the matter and has been satisfied that all three aspects of the test in section 275(1), which are cumulative, have been met.”

The court concluded: “For the reasons given above, we consider the sheriff was correct in refusing to allow paragraphs 1, 2 and 6. However, the sheriff’s failure to provide a judicial determination in respect of paragraphs 4 and 5 is a matter of which the court can take notice ex proprie motu. 

“Doing so, and making our own determination, we consider, for the reasons already given, that the evidence is not admissible and that these paragraphs also should not have been admitted. We will therefore refuse the appeal, and in doing so refuse the section 275 application in its entirety.”