Husband accused of sexual coercion fails in bid to question wife about alleged affairs

The accused had intended to attack the complainer’s credibility and a sheriff had ruled that the evidence should be led, but the Criminal Appeal Court allowed an appeal by the Crown against the sheriff’s decision.

The then Lord Justice Clerk, Lord Carloway, sitting with Lady Dorrian and Lord Bracadale, heard that the respondent “CJW” appeared at a First Diet at Dundee Sheriff Court in October 2015 charged with, among other things, coercing his then wife to engage in sexual intercourse with “EA”, contrary to section 4 of the Sexual Offences (Scotland) Act 2009.

The respondent lodged a defence statement, stating that the complainer had “willingly engaged” in sex with EA, and also lodged a notice of intention to attack the complainer’s character.

He submitted an application under section 275 of the Criminal Procedure (Scotland) Act 1995, which stated that during their 14-year marriage his wife had “affairs with a number of other men before beginning an affair with said ”.

This evidence was said to be “highly relevant to the issue of the credibility” of the complainer in that it amounted to a “direct contradiction of the allegation”.

The intention of the respondent was to ask questions about two alleged affairs, other than that said to have taken place with EA, during the course of their marriage.

It was submitted that the court could draw an inference that the complainer had a “propensity to have extra-marital affairs”, which was “directly relevant” to the charge, and that the evidence would “increase the probability” that the respondent’s position in relation to the complainer’s affair with EA was correct.

The sheriff did not consider that the questioning amounted to a “fishing expedition” or that the evidence was “collateral”, taking the view that the evidence was of “significant probative value” and that there would be “no unjustifiable invasion of the complainer’s privacy or affront to her dignity”.

Although the affairs were removed in time from the charges, they were “specific allegations” and behaviour of a “similar nature” to that which the respondent alleged the complainer had engaged in with EA.

The sheriff said the evidence of other affairs: “may establish the complainer’s predisposition to having extra-marital affairs which may support the respondent’s position on charge 1 and may also affect her credibility and reliability. Such a predisposition is relevant to establishing whether the respondent is guilty under charge 1, or whether these are the actions of a man who is no longer able to tolerate the complainer’s extra-marital relations”.

However, the Crown appealed on the basis that the evidence of two previous affairs was “inadmissible at common law”, being “collateral” to the matters in issue.

Section 275 did not render admissible evidence which was not admissible at common law and the application in relation to the affairs “lacked specification and did not meet the statutory tests”, it was argued.

In response, the respondent maintained that, in the context of a marriage in “terminal decline”, the evidence about the two prior affairs was “competent” at common law.

Allowing the appeal, the judges noted that in the 2013 case of CJM v HM Advocate (No. 2), the court attempted to make it clear that sections 274 and 275 were “not intended to permit evidence which was not admissible at common law”.

Delivering the opinion of the court, the Lord Justice Clerk said: “The common law position is itself clear. Evidence of either good or bad character is, in general, inadmissible because it is collateral to the issues as defined in the libel. The rule exists for reasons of convenience and expediency.

“The issue, in relation to admissibility at common law, is not of whether a particular judge considers it to be fair or in the interests of justice to allow certain evidence to be led, but one which involves the application of the rules of evidence.

“These exist for pragmatic reasons in connection with the administration of justice, including the protection of witnesses, notably complainers, who cannot be expected to anticipate and defend themselves against personal attack.

“The allegation that a person has had two affairs, unrelated to the particular charge, over a period of 14 years, has no relevance to or bearing on the charge libelled; that being the alleged coercion of the complainer to have intercourse with a named individual over the period of a year.

“The allegations which are made in the section 275 application are inspecific, with no information on the name of the third party, and very little in relation to time or place. In these circumstances, it is evident that this evidence would not be permitted at common law and it cannot be permitted on an application under section 275 of the 1995 Act.”

Even if the evidence were admissible at common law, the judges observed that it would be struck at by section 274(1)(a) and (b), and it would then be a question of whether, as a matter of discretion, the court ought to admit it on the basis that the court is satisfied that the evidence will relate “only to a specific occurrence or occurrences of sexual” behaviour, that the occurrence or occurrences are relevant to the offence and that the probative value is significant and “likely to outweigh any risk of prejudice to the proper administration of justice”, including the appropriate protection of the complainer’s dignity and privacy.

Lord Carloway added: “In this case, the matters sought to be adduced in evidence would not fall to be admitted under the exceptions provided by section 275. In particular, the evidence does not relate to specific occurrence or occurrences.

“It does not have significant probative value. Even if it did, that value would not outweigh the risk of prejudice to the proper administration of justice, including the dignity and privacy of the complainer.”