Rape accused’s appeal to allow questioning of complainer to support special defence of consent refused

The Criminal Appeal Court upheld the preliminary hearing judge’s ruling that the probative value which the evidence sought to be admitted or elicited “did not outweigh any risk to the administration of justice”.

The Lord Justice Clerk, Lady Dorrian, sitting with Lady Smith and Lord Bracadale, heard that the accused, who was facing trial on an indictment containing one charge of with rape alleged to have been committed in June 2011 at an address in Lybster, had lodged a special defence of consent.

An application was presented on his behalf under section 275 of the Criminal Procedure (Scotland) Act 1995, to allow evidence or questioning regarding the credibility of the complainer, which it was said would show that she falsely claimed to work colleagues that she was pregnant with the accused’s child, that she had been to the doctor and falsely claimed to have had a positive pregnancy test, that she was considering a termination and that she claimed to have a miscarriage.

The application asserted that the false nature of the claims would be established by comparison of her medical records with the evidence of her work colleagues, and that the evidence was relevant to the “proper assessment” of the credibility of the complainer, demonstrating that she “persistently told lies” about matters directly connected with and flowing from her sexual encounter with the accused.

But the Crown opposed the application, submitting that the evidential basis for the allegations was slim, and that exploration of the issue would require detailed examination of the complainer’s medical records “at the expense of her privacy and dignity”.

The preliminary hearing judge proceeded on the basis that the behaviour may be relevant to the credibility of the complainer, in the broadest sense, and thus to whether the accused was guilty of the offence with which he was charged, on which basis he was satisfied that section 275(1)(b) was established.

However, noting that under section 275(2)(b)(i) the proper administration of justice includes the appropriate protection of the complainer’s dignity and privacy, the preliminary hearing judge concluded that any probative value which the evidence might have did not outweigh any risk to the administration of justice.

The appellant challenged that decision, but the appeal judges ruled that the preliminary hearing judge was “correct” to refuse the application.

Delivering the opinion of the court, the Lord Justice Clerk said: “The preliminary hearing judge, who was unfortunately not given the benefit of reference to authority, was content to proceed on the basis that the requirements of section 275(1)(b) were met. We do not think that is the case.

“It is not every matter which by any conceivable margin may bear on credibility which is relevant for this purpose. Evidence which is remote or collateral is not relevant to establishing whether the accused was guilty of the offence with which he is charged.

“A clear distinction must be made between that which is admissible and material evidence, and that which is collateral.

“The only significance of the evidence would be to support an argument that having lied about having a positive pregnancy test, and associated matters, the complainer’s credibility in relation to her assertion that intercourse with the appellant was not consensual was suspect, and that she was lying about the course of events.”

The judges further held that the evidence would not be admissible at common law.

“However,” Lady Dorrian added: “even proceeding, as the procedural hearing judge did, on the basis that it would be admissible, we consider that the procedural hearing judge was correct in deciding that in the circumstances it would be of such little evidential value that it could not be said that the probative value of it would outweigh the risk to the administration of justice from its admission.

“There is a great deal of speculation in the matter; there is a significant dispute as to the nature and extent of the evidence; a considerable amount of time is likely to be taken up with examining the medical records and other matters which are incidental to the issues in the trial. All that would be at the expense of the privacy and dignity of the complainer.

“In deciding as he did the procedural hearing judge was acting within the bounds of his discretion, and…this court should be slow to interfere with such a decision. We decline to do so, being satisfied that the conclusion which he reached was one within a reasonable exercise of his judgment in the circumstances.”