Child sex offender refused permission to ask complainer about sexual history fails in appeal against conviction

The Appeal Court of the High Court of Justiciary ruled that had the appellant wished to question the complainer on her medical records he ought to have lodged a written application in advance of the trial, but it any event it was unlikely that permission would have been granted as the evidence would have had “limited probative value”.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that the appellant Angus Francis was convicted of two charges of unlawful sexual intercourse with the same child, “LG”, who he claimed in his defence statement that he reasonably believed had reached the age of 16.

Cross-examination

The line taken in cross-examination was that, although there had been a single incident of sexual behaviour involving the appellant and the complainer when she was under 16, which could have related to charge (3), the conduct in charge (4), which covered almost a year of repeated sexual intercourse, was denied completely.

The Procurator Fiscal Depute (PFD) considered that this was inconsistent with the defence statement, by which he had understood that intercourse was not challenged and that the only issue was the appellant’s belief regarding the complainer’s age.

In his examination-in-chief the PFD had not referred to the medical records, but his intention was to use the medical records in re-examination.

The appellant objected to this on the basis that the matters to be covered did not arise out of cross and if the PFD was allowed to re-examine on the medical records, the appellant would not have the opportunity to cross-examine the complainer.

There were certain entries which the appellant would have liked to refer to, including one suggesting that the complainer had had several previous sexual partners.

In response to a question from the bench about how questions could be asked about these entries in the absence of an application under section 275 application of the Criminal Procedure (Scotland) Act 1995, the appellant said that an application could be made orally.

Medical records

The sheriff ultimately determined that the PFD was entitled to re-examine under reference to the medical records.

The PFD asked the complainer if her sexual relationship with the appellant had been limited to a single isolated incident when she had been 14, to which she answered that it had been ongoing from the age of 14 until after she was 16.

The complainer was asked if, between her 15th and 16th birthday – being the period covered by charge (4) – she had had a sexual relationship with anyone else, but her evidence was that she had not.

The PFD then asked about certain entries in the records relating to potential problems arising from sexual intercourse, but he did not ask her about two further entries which reference to the complainer having reported having “several partners”.

At the end of re-examination, the appellant sought leave to re-cross on the specific entries referring to other sexual partners, arguing that the defence would be prejudiced if the complainer was not asked whether she had previously had intercourse with other individuals and whether her visits to the GP were attributable to them, but the sheriff refused to allow further questioning.

‘Skewed picture’

At the appeal hearing, it was submitted that the sheriff had “erred” in repelling a defence objection to re-examination, which was “compounded” by his refusing the resultant defence extemporary (sic) section 275 application for permission to further cross-examine the complainer.

As a consequence, the jury had been given a “skewed picture” and were left with the “erroneous impression” that the complainer had only ever reported that she had been in a relationship with the appellant.

It was argued that the refusal to allow the appellant to cross-examine the complainer further had “prevented the appellant from having his defence fully ventilated”, but the appeal was refused.

Delivering the opinion of the court, the Lord Justice General said: “The Crown had adduced evidence from the complainer, not only about the single act of intercourse in charge (3), but also of a prolonged sexual relationship thereafter. The existence of the latter was challenged in cross, although on the face of the defence statement it was only the appellant’s belief about the complainer’s age which was to be an issue.

“The challenge having been made, it was open to the Crown to re-examine on the basis of a continuing sexual relationship with the appellant and to put medical entries demonstrating that to the complainer. The Crown could have done that in examination-in-chief. The question is whether, whatever the stage of examination, the appellant ought to have been allowed to cross-examine on the basis that there were entries referring to continuing sexual activity with another man or men.

“Such a course of action is prohibited by section 274(1)(b) of the Criminal Procedure (Scotland) Act 1995. It could only be permitted under section 275, following the grant of a written application (s 274(3)). There was never any such application covering these matters or any motion to allow a written application to be received late on special cause (s 275B(1)). Even if such a motion had been made, it would inevitably have been refused.

“The appellant was aware that the Crown intended to lead evidence of a continuing sexual relationship during 2012 and 2013. If the appellant had wished to cross on the basis that any such relationship was with another man or men, he would have to have lodged an application under section 275 in advance of trial. No cause was shown for not having done so. Furthermore, any evidence from the complainer that she had had other sexual partners would have had very limited probative value and it is unlikely that any such application would have succeeded.”