High Court refuses application to introduce evidence of subsequent child contact litigation by man accused of rape

The appellant, MP, argued that his application ought to have been refused as unnecessary on the basis that the proposed evidence to be led was admissible at common law, and would allow a jury to reach relevant inferences concerning the complainer’s state of mind.

The appeal was considered by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Pentland. Duff, advocate, appeared for the appellant and A Prentice QC for the Crown.

Irrelevant and collateral

The appellant had lodged a special defence of consent in respect of the third charge of rape, which was libelled to have occurred on 23 December 2006. In an application under section 275 of the Criminal Procedure (Scotland) Act 1995, the appellant sought to introduce evidence concerning, among other things, the behaviour of the complainer afterwards, including a proposition that she had laughed when he was unable to find his socks following intercourse.

A child was born as a result of the encounter, which eventually led to litigation concerning contact and maintenance between the appellant and complainer. Following a sist in the contact action in January 2019, the complainer made an allegation of rape to the police. The appellant sought to introduce evidence concerning the litigation as part of his section 275 application on the basis that it would allow a jury to consider whether they found the complainer to be credible and reliable given the lengthy gap between the conduct and the allegation and the relevant dates involved.

It was considered by the preliminary hearing judge that the account of what happened afterwards was irrelevant to the question of consent at the time of intercourse. The judge also rejected several paragraphs of the application dealing with events after the birth of the child, which she considered to be irrelevant and collateral.

Counsel for the appellant submitted that the evidence concerning the events surrounding the litigation was admissible at common law. In respect of the post-encounter conduct of the complainer, the proposed evidence would allow a jury to be invited reasonably to infer that this was indicative of her state of mind during the preceding sexual intercourse. The court was invited to find that the application ought to have been refused as unnecessary and the evidence permitted to be led.

In response, the Crown submitted that the present appeal was not one “against a decision at a preliminary hearing”, as the appellant did not seek to reverse the decision but rather to adjust its reasoning. In any event, the preliminary hearing judge was entitled to take the view that the evidence sought to be led was inadmissible at common law and to refuse the paragraphs. Whilst the appellant was perfectly entitled to lead evidence of the 12-year delay in the making of the allegation, he would not be allowed to speculate about the reasons for that.

Fishing expedition

The opinion of the court was delivered by Lady Dorrian. Describing the basis for the appeal as “bizarre”, she noted: “The preliminary hearing judge in her report advises the court that the extraordinary approach taken in this application, and appeal, of setting out a whole series of paragraphs and then asserting that an application in respect of them is not necessary, is increasingly being taken in section 275 applications. It seems that a practice has developed to include proposed questions or evidence for which counsel maintains an application is unnecessary but upon which the court is nevertheless asked to make a ruling.”

She continued: “Where counsel consider that an application to the court is not necessary, then the making of an application stating this is absurd. If counsel consider that such an application is not necessary then they should not be making an application, taking up valuable court time on issues which are redundant. To the extent that an application under section 275 asserts on its face that it is unnecessary, or where counsel so submits, it is per se an incompetent application and should be refused on that ground.”

Endorsing the judge’s reasons for refusing the application, Lady Dorrian added: “There is no link between the two separate facts referred to in this submission – the making of the allegation and the family history - save in the imagination of counsel. There is no evidential basis for suggesting that the history in relation to the child has anything to do with the making of the allegation. There is no evidence to demonstrate a link, and the whole purpose of including this material is to enable counsel to go on a fishing expedition at trial.”

She concluded: “The issue of consent requires to be examined at the time of the act in question, not subsequent to it. Moreover, as the Advocate Depute submitted it is well understood that individuals may react to trauma in various and different ways. The preliminary judge was correct to refuse this paragraph as an example of detail of something said to have happened which would not assist the jury in their task, and thus irrelevant.”

The appeal was therefore refused.