High Court allows application for leading of sexual conduct evidence in rape trial submitted three days before preliminary hearing

About this case:

• Citation:
  [2023] HCJAC 15
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Appellant Edward Doran was indicted to a preliminary hearing on 4 July 2022 but only lodged his section 275 application three days beforehand rather than the statutory seven clear days. The section 275 application, and the subsequent appeal, were not opposed by the Crown, which sought to determine where the interests of justice lay in this case.

The note of appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Woolman and Lord Pentland. Renucci KC appeared for the appellant and Edwards KC for the Crown.

Might be relevant

The appellant had been charged with administering a substance to the complainer to enable him to engage in sexual activity, contrary to section 11 of the Sexual Offences (Scotland) Act 2009, and with assault and rape contrary to sections 1 and 2 of that Act, libelled to have taken place while the complainer was asleep and intoxicated with drugs.

On 1 July 2022, the appellant sought permission to lead evidence that, immediately after the sexual intercourse that formed the basis of the rape charge, he had performed oral sex on the complainer at her request. This evidence was said to have a bearing on her credibility and reliability, it being the appellant’s position that the complainer had voluntarily consumed drugs and was awake throughout the incident and capable of giving consent.

At the preliminary hearing, the judge refused to consider the section 275 application as it had not been submitted in time. The “special cause” said to justify consideration of the application was that defence counsel had made a mistake about trial dates and diarised the PH for 8 July, although that would still have made the application late. The judge accepted that the evidence, had it been led, might be relevant, but noted that the appellant was not prevented from putting forward a special defence of consent.

The appellant submitted that the PH judge erred in holding that an administrative error made by counsel, who like others practising at the criminal bar was under pressure to deal with the volume of the backlog of cases caused by the pandemic, did not amount to special cause. The PH judge also failed to take into account the Crown’s lack of opposition and the prejudice which would ensue to the appellant were the application to be refused.

No prejudice to Crown

Lord Carloway, delivering the opinion of the court, said of the seven-day requirement: “It is important, as a generality, that applications comply with the time limits in section 275B. The PH, and occasionally the trial, judges are responsible for ensuring that compliance. The use of the words ‘special cause’ is a familiar one. It does not mean that there has to be an enhanced level of ‘cause’. It means that the cause must be particular to the case, not one which applies in all, or most cases.”

He continued: “In this context, the purpose of the time limit should be considered; that is the prevention of disruption to the criminal process, the need to ascertain the complainer’s attitude to the evidence and the requirement to provide the complainer with advance notice of what she might be asked at trial. The attitude of the Crown is a factor to which regard must be had, although it is not determinative.”

Addressing the facts of the case at hand, Lord Carloway said: “The speciality in this case was the error in identifying the correct date for the PH and hence the due date for lodging the application. Cause is shown because it is in the interests of justice to allow the appellant to introduce the evidence, which the PH judge correctly regarded as relevant. There is no prejudice to either the Crown or the complainer. There would have been no enquiries necessary beyond that involving the complainer. The evidence relates only to a specific occurrence of sexual behaviour and that occurrence is relevant to whether the appellant is guilty of the offence charged.”

He concluded: “The probative value of this evidence is significant. It will outweigh any risk of prejudice to the proper administration of justice, including the protection of the complainer’s dignity and privacy. The evidence concerns activity at the time of the alleged rape. Disabling the appellant from giving evidence about what happened during the course of the crime alleged would place him in a difficult position so far as presenting his defence is concerned. The court does not consider that allowing this evidence would deflect the jury’s attention from the main issues to be resolved at trial.”

The appeal was therefore allowed, and the section 275 application was permitted to be received late.