High Court judge refuses application by alleged sex offender seeking to lead evidence of relationship prior to marriage

About this case:

• Citation:
  [2024] HCJ 3
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Fairley

Applicant MJ appeared on an indictment of 15 charges of alleged sexual offending to which section 288C of the Criminal Procedure (Scotland) Act 1995 applied. The application related to the alleged conduct in charge 11, which the complainer had indicated may have been based on conduct occurring prior to their marriage.

The application was heard by Lord Fairley. Lenehan KC appeared for the applicant and Mackay, advocate depute, appeared for the Crown.

Passing comment

Paragraph 1a of the application sought permission to admit evidence relating to the period of the libel in charge 11 immediately preceding the marriage of the accused and the complainer. The charge contained allegations said to have occurred on two occasions during a time ambit of almost six years. While the charge referred to the complainer as the applicant’s wife, the complainer had stated in precognition that some or all of the behaviour libelled may have occurred prior to their marriage.

In his applicant, the applicant sought to lead evidence that he and the complainer were in a sexual relationship prior to their marriage. He did not explain why that evidence would engage the provisions of section 274 of the 1995 Act imposing restrictions on evidence relating to sexual offences. However, the court noted a chapter of the Preliminary Hearing Bench Book which suggested that practitioners would be advised to seek permission to lead any evidence that a relationship was intimate or sexual in nature.

It was posited that this advice was 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 behaviour not forming part of the subject matter of the charge. The Bench Book also recorded support for this from a “passing” comment in AW v HMA (2022) and a comment by the lord justice clerk in Moir v HMA (2005).

Strained interpretation

In his decision, Lord Fairley observed: “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.”

He added: “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).”

Noting that these same considerations applied to the present case, Lord Fairley said: “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. 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.”

He went on to say: “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 an inappropriate evidential vacuum.”

Lord Fairley concluded: “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.”

The application was therefore refused.