High Court refuses appeal against trial judge’s decision to review evidence admissibility in sexual offences trial

The appellant, JW, made the appeal under section 275(9) of the Criminal Procedure (Scotland) Act 1995 after the trial judge effectively revoked previous orders allowing certain evidence to be led. The charges he faced included 10 charges of rape as well as charges of lewd, indecent, and libidinous practices and behaviour that took place between 1976 and 1997.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Pentland. The appellant was represented by McSporran QC and the Crown by A Prentice QC.

Relevance and specificity

The evidence the appellant sought to be elicited was evidence alleging that he had had consensual sexual intercourse with four of the complainers over various periods of time ranging from 2 to 14 years. Three of the complainers denied these allegations, which were said to be relevant to the issue of consent in relation to the charges to which they related as well as demonstrating that the complainers were well disposed towards the appellant during the stated periods of the charges.

In June 2019, a preliminary hearing judge allowed applications under the 1995 Act to lead this evidence on the grounds that it was relevant to the credibility and reliability of each complainer. At the time, the Crown did not oppose the leading of the evidence, however it later submitted a motion to review the grant of the applications on the first day of the trial. It was submitted that the applications ought to be disallowed in light of recent court decisions including CH v HM Advocate (2020).

The trial judge considered that the terms of section 275(9) permitted the reconsideration of the applications in circumstances where the law had been authoritatively restated. It was considered that the averments were not relevant to the consideration of the complainers’ credibility, and that the evidence would not now pass the statutory tests for relevance, specificity, and probative value.

Counsel for the appellant submitted that it was not appropriate in this case to limit the extent of the evidence to be allowed. Neither the factual underpinning of the case nor the law had changed, and section 275 had to be interpreted in the context of the normal rules of evidence and procedure, and the availability of an unlimited right of appeal.

It was further submitted that the law had not fundamentally changed since the granting of the original applications in 2019. While it was accepted that the application would have been refused had it been considered for the first time at the date of the trial, an accused person was entitled to have certainty in advance of his trial as to the evidence which may, and may not, be admitted.

Enhanced appreciation

Delivering the opinion of the court, Lady Dorrian said of the scope of section 275: “As the court pointed out in Moir v HMA (2005), in the light of the evidence led, the trial judge will always have the final say as to the admission or exclusion of questioning or evidence under section 275, by limiting a grant already made (sec 275(9)) or by allowing a fresh application.”

She continued: “The submission that the power should be exercised only on a change of circumstances, such as a change in the underlying facts or law, does not gain support from the plain terms of the section, which not only allows the court to exercise the power ‘as it thinks fit’, but enables it to do so ‘notwithstanding the terms of its decision under subsection (1) above’ or any condition attached to the grant.”

Addressing the effect of recent court decisions on the legislation, she said: “Whilst not a restatement of the law, there is no doubt that these cases, in particular the full bench decision of CH, have led, within the profession in particular, to an enhanced, if belated, appreciation of the full significance of the legislation and how it should operate, and on the part of the Crown to a more discriminating approach to whether applications should be opposed. This is in our view sufficient reason to justify the motion being made by the Crown, notwithstanding the earlier failure to oppose the application or appeal the decision.”

On the specific evidence sought to be introduced in this case, she added: “The applications are in the vaguest of terms, and do not meet the statutory requirements. They do not meet the requirements of reflecting only specific occurrences of behaviour. To seek to use the material as the appellant wishes would require a consideration of specifics and details which would wholly derail the trial and take the jury’s focus from the true issues in the case.”

For these reasons, the appeal was refused.