Appeal on leading evidence of complainer’s previous sexual conduct refused

The Appeal Court of the High Court of Justiciary has refused an appeal challenging the decision of a preliminary hearing judge not to allow the defence counsel of a person accused of sexual assault to ask questions designed to elicit evidence of the complainer’s previous behaviour.

The appellant, SJ, was due to appear at trial on three charges. The first was for sexual assault, the second for rape, and the third for perverting the course of justice by disposing of his mobile phone to prevent the police from gaining access to information in it.

The appeal was heard by Lord Malcolm, Lord Turnbull, and Lord Pentland, all three of whom gave opinions.

Previous conduct

At the time of the alleged offences, the appellant and the complainer were ex-partners. The original application, made under Section 275 of the Criminal Procedure (Scotland) Act 1995, sought to elicit evidence that the accused and the complainer were together on New Year’s Day 2019, during which time they were kissing and cuddling and engaged in sexual intercourse. It also sought to elicit evidence that on the day of the alleged offences, 12 January 2019, the complainer and the accused had consensually kissed and touched each other, and that shortly after the alleged offence the complainer had sexual intercourse with another party in the same place. Prior to the appeal hearing, this proposition was changed to having taken place a few days before the incidents.

In a statement provided to the police after the alleged incidents, the complainer stated that she had not previously had any sexual relationship with the appellant, and she did not tell them about her previous time with the accused. The application argued that it was relevant to the jury’s assessment of the complainer’s credibility or reliability that she had previously misled the police about the nature of her previous involvement with the appellant.

It was also stated in the application that the complainer told the Procurator Fiscal at precognition she stated that prior to the alleged rape she had not had consensual intercourse since 30 December 2018. It was also contended that she had lied to the forensic medical examiner about not having intercourse apart from the incident from 3 to 13 January 2019. The application concluded that the evidence would allow the court to draw inferences that the complainer was not a credible or reliable witness, that she consented to the incidents described in the first two charges, and that there was reasonable doubt about the Crown case.

The preliminary hearing judge rejected the application insofar as those matters were concerned, although a third paragraph of the application was accepted. In relation to the points about the complainer’s earlier conduct, the judge took the view that this was a collateral matter of no relevance to consent in the current charges. She also concluded that the proposed questions about other sexual conduct the same day and lying to the FME about it were not relevant to the question of whether she had consented to sexual intercourse with the appellant.

In her appeal submissions, senior counsel for the appellant accepted that evidence of sexual contact between the appellant and the complainer on 1 January would not be relevant in determining whether consent was present during the events described in the charges. Nevertheless, she submitted that it was important for the jury to have a proper understanding of the build-up to the events and to appreciate that the complainer and the appellant were not just two people who knew each other along with others. She submitted that evidence of the circumstances of what transpired on 1 January was relevant to explaining the extent to which they knew each other, since that went beyond what the Crown wished to show. This fuller picture would, it was submitted, assist the jury in working out what to make of the complainer’s evidence.

Collateral matter

In his opinion, with which Lord Pentland agreed, Lord Turnbull addressed the submissions on previous sexual conduct between the appellant and the complainer, saying: “In my opinion, in order to seek to admit the evidence identified […], the appellant required to engage in an artificial attempt to construct a distinction between, leading evidence of a prior sexual encounter for the purpose of casting doubt on the complainer’s evidence as to absence of consent, and, leading evidence of a prior sexual encounter for the purpose of a proper appreciation of how well the two knew each other. In the absence of any articulated reason for establishing the latter in this fashion there is no valid distinction.”

He continued: “I am not persuaded that evidence of what took place between the accused and the complainer during a drunken New Year encounter, some 11 days prior to the date of the alleged offence, is capable of passing the common law test of relevance. I do not see how such an event could provide evidence of the ‘true nature’ of the relationship between the parties. Of course, the accused may wish to suggest that the complainer was not as intoxicated on that occasion as she claims. To my mind this would simply compound the problem.”

Lord Pentland added further observations to Lord Turnbull’s opinion, saying: “The submission advanced on the appellant’s behalf that without the evidence of the matters now referred to in [the appellant’s submissions on appeal] the jury would somehow be left with an incomplete picture of the relationship between the parties in the lead up to the events libelled does not address the question of the relevance of the evidence sought to be led. To say that these alleged facts add colour or context or form the background to the circumstantial case against the appellant merely begs the question. Despite being given every opportunity to do so, senior counsel for the appellant was ultimately unable to specify in what way the ‘missing’ evidence was relevant to the real issues in the case. Her justification for introducing the evidence was in the final analysis vague and unsatisfactory.”

For those reasons, both Lord Turnbull and Lord Pentland refused the appeal. However, Lord Malcolm, who also refused the appeal in respect of the submissions on the complainer’s sexual activity with other persons, stated that, although he would not dissent from the proposed outcome, he would be inclined to accept the section of the application concerning the appellant and the complainer’s previous relationship, as amended on appeal.

His reasoning was as follows: “As I understand the submissions for the appellant, it is not being contended that any proof of consensual sexual behaviour in the past would lead to the inference that the events in question were similarly by agreement. […] If that was suggested, it could be corrected by an appropriate direction from the trial judge: a direction which would no doubt be given even absent that suggestion by the defence. Rather the desire is to refer, in a now limited manner, to the events at and after the Hogmanay party which senior counsel considers will be necessary to correct what would otherwise be a misleading impression as to the parties’ relationship; what was happening in the intervening week; and to rebut the anticipated evidence as to the complainer’s state of mind when the appellant visited her house.”

He continued: “All or any of this may ultimately be aimed at the issue of consent, but, in my view that fact alone does not trigger a refusal on the grounds of irrelevancy at common law or under [the 1995 Act].”

He concluded: “For myself I would be inclined to allow paragraph 1(a) of the application as amended, but with an express instruction to the trial judge to keep the exercise under careful review during the trial as provided for in [the 1995 Act]. However, I appreciate that a different view could reasonably be taken on the basis that the probative value of a one-off episode the previous weekend is outweighed by the potential prejudicial effect of the proposed line of questioning and evidence. It seems plain that your Lordships would take this view, and rather than dissent in respect of the proposed outcome, I will rest on the above explanation as to why I consider that the case should be addressed and determined under and in terms of [the Act].”