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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 2
HCA/2020/000254/XC
Lord Malcolm
Lord Turnbull
Lord Pentland
OPINION OF LORD MALCOLM
in
Appeal
by
XY
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: K Johnston, sol adv; Martin Johnston and Socha
Respondent: A Prentice, QC, sol adv AD; Crown Agent
12 January 2021
[1]
I am grateful to Lord Pentland for setting out the background and the circumstances
of this appeal. However I regret I am unable to adhere to the view of your Lordships that it
should be refused.
[2]
The appeal raises a stark issue not addressed in the many recent cases concerning
applications under section 275 of the Criminal Procedure (Scotland) Act 1995. It can be
expressed as follows if an accused person accepts that sexual activity as described in an
2
indictment occurred but at a later date when the complainer was of age, is such a line of
defence to be allowed?
[3]
The point can be illustrated by a hypothetical example. Mr A is charged with having
had unlawful sex with a child. This is said to have occurred in 1983 when the complainer
was 15 years of age. Mr A's position is that he did have sex with the complainer but in 1984
when she could consent. When this scenario was put to the advocate depute he submitted
that any questioning or evidence in support of this defence would be inadmissible at
common law as being irrelevant or as raising a collateral issue.
[4]
It is true that the circumstances of this case are more complicated than the
hypothesis. For example charge 2 is one of rape, though it can be noted that before the
preliminary hearing judge the Crown indicated that in the light of the complainer's account
it is likely that it will be relying on the alternative verdict of unlawful intercourse with a
child. And there are some parts of the libel which are denied outright hence the
amendment to the application to insert the necessary specification . It follows that the timing
point applies to only some of the specific allegations made by this complainer, albeit the
most serious. Furthermore there are other charges involving different complainers which are
not the subject of this application. Nevertheless none of the specific facts of this case detract
from the crisp issue raised by Ms Johnston's submissions. She contends that the appellant
should be allowed to present the defence case on the particular allegations in full. She will
not be able to indicate that sexual intercourse did not occur. If the application is refused the
defence will not be able to suggest it happened at a later date. The complainer will be able
to speak to it happening, the accused will not. It could be put to the complainer that it did
not happen when she says, but this invites the question well when does he say it occurred?
If the complainer gives supportive detail which is consistent with the event, for example as
3
to personal private details, or in respect of specific locations, he will not be able to give an
explanation consistent with his innocence, The questioning of the complainer will be
artificially restricted in a manner likely to threaten the fairness of the proceedings. The same
would apply if the appellant gives evidence.
[5]
Given both parties accounts as relayed to the court, this application does not concern
two or more unrelated events. There is a dispute as to when certain events took place.
Unlike many of the recent cases, it is not a matter of whether something happening before or
after the date of a libel casts light on the events that day. The application does not involve
the defence trying to establish a connection between two or more occurrences. It is of course
true that sexual activity when someone is of age does not exclude such behaviour at an
earlier period, but the touchstone is whether the proposed line has a reasonably direct
bearing on a fact in issue at the trial. Where the date of an alleged offence is critical to
criminality, evidence directed at that issue is admissible.
[6]
To return to the hypothesis mentioned earlier, I would be concerned if the response
of the advocate depute is an accurate reflection of the law. I am of the view that Mr A
should be allowed to present his defence as stated. However the refusal of this appeal
suggests that I am mistaken.
4
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 2
HCA/2020/000254/XC
Lord Malcolm
Lord Turnbull
Lord Pentland
OPINION OF LORD TURNBULL
in
APPEAL UNDER SECTION 74
by
XY
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: K Johnston, sol adv; Martin Johnston and Socha
Respondent: A Prentice, QC, sol adv AD; Crown Agent
12 January 2021
[7]
I am also grateful to Lord Pentland for setting out the background to this appeal and
the circumstances in which it was presented. In my opinion, the argument presented on the
appellant's behalf is misconceived and ought to be rejected. I agree with Lord Pentland that
the preliminary hearing judge was right to refuse the application made on the ground that
the evidence sought to be elicited was irrelevant at common law. Since there is a division of
5
opinion amongst the members of the court I would wish to say a little more about why I
have arrived at my own view.
[8]
In the application which is the subject of this appeal, the appellant seeks authority to
elicit evidence that he and the complainer AA engaged in sexual behaviour, on an
unspecified number of occasions, in a seven month period commencing a year after the last
date in either of the relevant charges, at a time when she was 17 years old. He asserts that
this evidence will address the issue of the complainer's credibility and reliability and will
permit the drawing of two inferences. First, that the complainer is an incredible and
unreliable witness, and, second, that he did not have sex with her when she was under
16 years of age. The complainer denies having any form of sexual relationship with the
appellant when she was 17 and claims to have been in a relationship with a particular
boyfriend at that time, whom she has named.
[9]
On the face of matters the evidence which the appellant seeks to elicit has all of the
hallmarks of collateral and irrelevant evidence. It is argued that it should not be so classed
as it does not seek to address the issue of consent but will address what is said to be the only
issue in dispute, namely when sexual behaviour between the appellant and the complainer
took place.
[10]
It is, I think, helpful to put the appellant's arguments in context. He is 72 years old.
He faces an indictment containing eight charges libelling sexual offences committed against
five different female complainers over a period of around eighteen years in the 1980s and
1990s. The locations at which the offences are said to have taken place include three
different schools.
6
[11]
Charges 1 and 2, concerning the complainer AA, are said to have occurred between
April 1981 and April 1984, when she was aged between 13 and 15 years old and the
appellant was aged between 33 and 36.
[12]
Charges 3 and 4, concerning the complainer CM, are said to have occurred between
November 1986 and November 1991, when she was aged between 13 and 17 years old and
the appellant was aged between 38 and 43.
[13]
Charge 5, concerning the complainer MMcC, was said to have occurred on a single
occasion between December 1988 and December 1989, when she was aged 17 and the
appellant was aged 40 or 41.
[14]
Charges 6 and 7, concerning the complainer LM, are said to have occurred between
August 1989 and August 1993, when she was aged between 13 and 16 years old and the
appellant was aged between 41 and 45.
[15]
Charge 8, concerning the adult complainer JB, is said to have occurred on a single
occasion between October 1997 and October 1999, when the appellant was aged between 49
and 51.
[16]
The charges which the appellant faces range from minor sexual assaults, involving
kissing the complainers in charges 5 and 8, through to significant allegations of indecent
assault involving various forms of touching, removal of clothing, digital penetration and
inducing the complainers to masturbate him to ejaculation in charges 3, 4 and 7. Charges 1
and 2 contain the most serious allegations, involving conduct of various different sorts
constituting lewd, indecent and libidinous practices and behaviour and rape.
[17]
The appellant has tendered pleas of not guilty to all charges. There are no special
defences lodged and his application under section 275 of the 1995 Act only relates to the
7
complainer AA. I infer that the appellant denies any sexual contact of any sort with the
remaining complainers during the periods specified.
The application
[18]
The application made on the appellant's behalf, as amended, seeks to elicit evidence
that specific occurrences of sexual behaviour took place between AA and the appellant,
namely penetration of her vagina by his penis, touching her vagina by him and digital
penetration of her vagina by him in the period of around seven months between 14 April
and 30 November 1985 when she was 17 years old. The appellant denies the other acts of
sexual activity specified in charge 1.
The submissions in support of the application
[19]
In the written submissions lodged on behalf of the appellant in advance of the
hearing it is explained that the purpose of the application is to:
"allow the defence to put to the complainer that the incidents of sex spoken to by her
in her statement... occurred at a later time when she and the appellant were in a
legitimate sexual relationship."
[20]
It is argued that the evidence is not collateral as it is verifiable. In addition, it is
submitted that:
"The jury will simply be asked to consider whether the evidence spoken to by the
complainer occurred when she was 13 to 16 or when she was 17. This is an `either or'
situation, not an `in addition' proposal."
[21]
At a later stage it is explained that:
"The appellant contends, as does the complainer that the sexual activity libelled did
take place, it just didn't take place during the period of the libel."
8
[22]
These propositions were reflected in the oral submissions advanced by Ms Johnston,
which were broadly designed to present the dispute between the complainer and the
appellant as being nothing more than temporal. The central feature of the argument was
that "the issue in dispute at trial will be how old was the complainer at the time".
Analysis
[23]
I do not accept that the submissions advanced on the appellant's behalf properly
identify the relevant issues. Nor do they accurately reflect the dispute between the crown
and the appellant. There is far more in dispute between the complainer and the appellant
than is suggested in the argument presented on his behalf. It is simply incorrect to suggest
that the jury will be asked to consider whether the evidence spoken to by the complainer
occurred when she was 13 to 16 or when she was 17. Not only does the appellant deny that
significant aspects of what the appellant is expected to say are true, he also denies, as I will
come to discuss, the whole underlying basis of the crown case. It is equally incorrect to
suggest that the complainer and the appellant both contend that the sexual activity libelled
did take place. The appellant's position is that the complainer is mistaken or lying when, for
example, claiming that the appellant inserted a banana into her vagina.
[24]
In considering the nature of the evidence which the appellant wishes to elicit it is, as
Lord Pentland has observed, plainly incorrect to state that the evidence is verifiable. In
addition, the three passages taken from the appellant's written submissions, which I have set
out above, serve to illustrate the gloss which is put on the issue which the evidence is said t o
address. The appellant's position is not just that the complainer has got her dates confused,
by a number of years, it is that significant aspects of her account are false.
9
[25]
To properly identify the issues at trial it is, in my opinion, necessary to begin by
identifying the nature of the case brought against the appellant. The case is of a type with
which the court is familiar. It alleges sexual abuse of young girls by a much older man who
was in a position of authority or responsibility. The appellant was AA's athletics coach. In
common with the charges concerning the complainers CM and LS, the charges concerning
AA set out repeated conduct over lengthy periods of time of an apparently escalating
nature. In so far as AA is concerned the sexual intercourse alleged in charge 2 is said to have
begun a full year after the commencement of the various other sexual acts specified in
charge 1. The case against the appellant, whilst having other elements as set out in charges 5
and 8, appears to be in large part a classic case of grooming.
[26]
In addition to denying a number of the aspects of sexual abuse described by AA, it
would appear to follow that the appellant denies grooming her. He certainly denies doing
so by engaging in any form of sexual contact with her when she was between the ages of
13 and 16. It is argued that he was later in a "legitimate relationship" with her during the
course of which they engaged in what he will term consensual sexual intercourse. There is
though no narrative of how this consensual sexual relationship between a 17 year old girl
and her 37 year old athletics coach is said to have come about. It is thus plain that the
eliciting of the evidence identified does not just involve suggesting to the complainer that
she is wrong about her dates.
[27]
The appellant characterises the evidence which he wishes to elicit as setting out his
defence. If the appellant is to give evidence of a defence that he was having intercourse with
a 17 year old, rather than with a 14 or 15 year old, he will have to explain how this came to
happen. On any view that must involve a narrative different from that given by the
complainer, which is of grooming from aged 13 with escalating sexual contact. The
10
appellant will then be subject to cross-examination designed to challenge his account. This
appears to me to demonstrate that it is an illusion to suggest that the issue at trial will be the
complainer's age. The issue at trial ought to be the appellant's conduct towards the
complainer over the three year period specified in charges 1 and 2 during which, as a matter
of undisputed fact, she was aged between 13 and 15 years old.
[28]
To allow a contested examination of what the appellant says he and she engaged in
when she was aged 17 appears to me to be precisely what would fall to be classed as a
collateral issue. In addition to that, such an enquiry would cast no light on the question of
whether the appellant repeatedly massaged the complainer's legs and body, touched her
vagina, shaved her pubic area, took a photograph of her whilst she was naked, showed her
pornographic material and penetrated her vagina with his fingers and a banana, all whilst
she was aged between 13 and 15 years old. Apart from touching her vagina and inserting
his fingers in it, the appellant denies that any of this conduct ever took place at any time.
Nor, in my opinion, would the resolution of a contested dispute about whether the appellant
had sexual intercourse with the complainer when she was aged 17 cast any light at all on the
question of whether he was having sexual intercourse with her when she was aged between
14 and 15.
[29]
In the course of the debate the advocate depute was asked to comment on whether
an accused person would be permitted to lead evidence of having had sexual intercourse
with a complainer when she was 16, rather than when she was 15, if that was the charge
against him. The advocate depute's position was that he would not, as such evidence would
be irrelevant.
[30]
I recognise that if a male and a female, of generally comparable ages, and absent any
complicating features of vulnerability or abuse of power, were to describe a single act of
11
sexual intercourse, taking place in the same circumstances and in the same place, but each
differed by a few months as to the date of the act, then such circumstances might show that
evidence of both accounts could be relevant and admissible. I would prefer to reserve my
opinion until such an issue arises. In my opinion that is not the issue raised in the present
case. For the reasons which I have sought to set out above, and for the reasons given by
Lord Pentland, I consider the present case to be very far indeed from the hypothetical
situation raised with the advocate depute.
12
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 2
HCA/2020/000254/XC
Lord Malcolm
Lord Turnbull
Lord Pentland
OPINION OF LORD PENTLAND
in
APPEAL UNDER SECTION 74
by
XY
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: K Johnston, sol adv; Martin Johnston and Socha
Respondent: A Prentice, QC, sol adv AD; Crown Agent
12 January 2021
Introduction
[31]
This is another appeal raising issues about the application of sections 274 and 275 of
the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). The appellant, who was born
on 12 January 1948, has been indicted in the High Court on eight charges alleging serious
sexual offences committed against a number of children and young persons in the 1980s and
1990s. In all there are five female complainers, each of whom the appellant is alleged to
13
have sexually abused over a period of some 18 years when he was aged between 33 and
51 years old.
[32]
Charges 1 and 2, with which the present appeal is concerned, are in the following
terms:
"(001) on various occasions between 14 April 1981 and 13 April 1984, both dates
inclusive, at (specified addresses) and elsewhere in Scotland to the Prosecutor
unknown, you XY did use lewd, indecent and libidinous practices and behaviour
towards (AA), born 14 April 1968, c/o Police Service of Scotland, Kirkcaldy, a girl
then of or above the age of 12 years and under the age of 16 years, and did
repeatedly massage her legs and body, touch her vagina, shave her pubic area, take a
photograph of her whilst she was naked, show her pornographic material and
penetrate her vagina with your fingers and a banana: CONTRARY to the Sexual
Offences (Scotland) Act 1976, Section 5;
(002) on various occasions between 14 April 1982 and 13 April 1984, both dates
inclusive, at (specified addresses), you XY did assault (AA), born 14 April 1968,
c/o Police Service of Scotland, Kirkcaldy and did penetrate her vagina with your
penis and did thus rape her, to her injury"
It can thus be seen that the offences are alleged to have been committed against AA over a
period during which she was between the age of 13 and the day before her 16th birthday.
The continued preliminary hearing
[33]
At a continued preliminary hearing on 3 August 2020 the appellant made an
application in terms of section 275 of the 1995 Act for permission to ask questions and lead
evidence to show that he was in a consensual sexual relationship with AA between 14 April
1985 and 30 November 1985 when she was 17. The broad basis for the application was that
such evidence was said to be relevant to the reliability and credibility of the complainer's
evidence and to the appellant's defence.
[34]
The reason tendered in the application for the relevance of the evidence sought to be
introduced was the appellant's stance that no sexual conduct occurred between him and the
14
complainer during the time covered by the libel; he accepted, however, that consensual
sexual intercourse did occur when the complainer was 17. This was alleged to be relevant:
(i)
To account for the complainer having sexual knowledge about the appellant
and to allow her to give an honest account of having sex with him. Her
sexual knowledge of him might lend her evidence an impression of
credibility and reliability on the contested subject matter of the charges.
(ii)
It was said to be necessary to put to the complainer that she was in a sexual
relationship with the appellant at a later time from that libelled.
(iii)
It was asserted that in the absence of such questioning the appellant could not
properly defend the allegations against him and would not receive a fair trial
and
(iv)
Finally, it was submitted that the probative value of the evidence for which
permission was sought would be significant and would outweigh the risk of
prejudice to the proper administration of justice.
[35]
The preliminary hearing judge refused the appellant's application. He took the view
that the evidence sought to be elicited was irrelevant under the common law. Accordingly,
the statutory scheme set out in sections 274 and 275 of the 1995 Act was not engaged.
[36]
The judge considered that the appellant would not be prevented in any way from
presenting his defence that the sexual activity alleged in the charges had not taken place. He
could give evidence to that effect.
[37]
The preliminary hearing judge referred to the decisions in Oliver v HM Advocate 2020
JC 119, Thomson v HM Advocate (PH Bench Book paragraph 9.7.3 at page 119) and JW v
HM Advocate 2020 SCCR 174. He observed that the court had repeatedly stressed the
importance of the issue of relevance as a criterion of admissibility in this context. He
15
referred to what had been said by the Lord Justice Clerk (Dorrian) in giving the opinion of
the court in Kerseboom v HM Advocate 2017 JC 47 at paragraph 10:
"...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..."
[38]
He referred also to the well-known statement made by Lord Sands in Moorov v
HM Advocate 1930 JC 68, 87 which had been endorsed in the full bench decision of CJM v
"A certain alleged fact may be relevant insofar that, if established, it might help a fair
mind to come to a certain conclusion. Nevertheless, it may fall to be excluded if its
ascertainment raises a separate issue from that which is being tried. The alleged fact
if put in cross and admitted may be relevant, but nevertheless it may be of a kind
which cannot otherwise be proved, for, if it is disputed it would require to be tried as
carefully as the issue before the court, and the allowance of such collateral inquiries
would make proofs endless."
[39]
The preliminary hearing judge considered it to be of fundamental importance to
keep in view that if the Crown could not persuade the jury that the conduct took place
between the dates specified in the libel then the appellant would be acquitted. He was not
persuaded that the appellant's desire to augment his denial by putting to the complainer,
and potentially giving evidence himself, that he did have sexual relations with her when she
was 17 was relevant at common law. His denial that sexual activity occurred within the
times specified in the libel was a complete defence to the charges. Even if the appellant
could establish that intercourse was occurring when the complainer was 17, this would not
of itself demonstrate that it was not happening when she was 14 and 15. The judge also
considered that a dispute about whether sexual intercourse was happening between the
parties more than a year after the libel would involve "something of a collateral inquiry".
16
The appeal
[40]
When the appeal came before this court we allowed the appellant to amend his
section 275 application by adding the following at the end of paragraph 1:
"That occurrences of sexual behaviour between AA and the applicant, specifically of
penetration of AA's vagina by the accused's penis, touching her vagina by him, and
of digital penetration of her vagina by him, took place as alleged in charges 1 and 2,
at (certain of the addresses referred to in charges 1 and 2) and elsewhere in Scotland
to the prosecutor unknown, not between 14 April 1981 and 13 April 1984, but rather
between 14 April and 30 November 1985".
[41]
In support of the appeal, Ms Johnston submitted that the preliminary hearing judge
had erred in regarding the evidence sought to be led as irrelevant at common law. She
stressed that the purpose of the evidence was to allow the appellant's defence to be fully
presented. The evidence was not collateral because the appellant accepted having had
consensual sexual relations with the complainer, but at a time when she was over 16 and
accordingly no longer underage. If he was not allowed to lead the evidence, the appellant
would only be able to present what Ms Johnston said amounted to merely half of his defence
to the charges. Proof of the dates between which sexual relations took place was of critical
importance in the circumstances of the present case. The jury would never be satisfied that
sexual activity had not taken place when the complainer was between the ages of 13 and 15
if the appellant was not permitted to lead evidence that such activity had occurred at a later
date. This would allow him to explain, for example, how she knew that the appellant had
had a vasectomy. The fact that the complainer, when precognosced by the Crown in
response to the section 275 application, had denied having a consensual sexual relationship
with the appellant when she was 17 added further strength to the application. Her stance
would have the effect of bringing into sharp focus at the trial the issue of when sexual
activity occurred between the complainer and the appellant.
17
[42]
For these reasons Ms Johnston submitted that the evidence was relevant and should
be admitted in terms of sections 274 and 275 because to do so would not undermine the
complainer's dignity and privacy and would be in the interests of justice in ensuring that the
appellant received a fair trial.
[43]
In replying to Ms Johnston, the advocate depute submitted that the preliminary
hearing judge had been well-founded in regarding the evidence sought to be elicited as
irrelevant. The facts at issue in the case were whether the sexual offences alleged in
charges 1 and 2 occurred during the dates libelled when the complainer was between the
ages of 13 and 16. Whether or not she had had consensual sex with the appellant more than
a year after the libel, when she was 17, was irrelevant. Any attempts to elicit evidence of an
alleged consensual sexual relationship between the appellant and the complainer when she
was 17 would risk the jury focusing on whether that relationship took place at that time. It
would be a line of inquiry liable to derail a jury onto side issues. It had no bearing on
whether the complainer was subject to the unlawful sexual acts alleged in charges 1 and 2,
spanning a libel which ended over a year before the alleged consensual sexual relationship
took place. Even if the evidence could be regarded as relevant, any probative value it might
have was wholly outweighed by the risk of prejudice to the proper administration of justice,
specifically the invasion of the complainer's dignity and privacy.
Analysis and decision
[44]
In the recent five judge decision of this court in CH v HMA [2020] HCJAC 43 the
court reiterated that the touchstone for consideration of an application under section 275 is
that the evidence sought to be elicited is admissible at common law (Lord Justice Clerk
(Dorrian) at para [34]). The question of admissibility is not simply a matter of the exercise of
18
a general discretion in the interests of fairness. Evidence must have a reasonably direct
bearing on the subject matter of the prosecution; it follows that collateral evidence is
excluded. The prohibition against the admission of irrelevant and collateral evidence exists
for pragmatic reasons, which promote the fair and efficient administration of justice. The
only exception is where the collateral issue can be established "more or less instantly and
[45]
In her written case and argument Ms Johnston asserted that the evidence sought to
be elicited was verifiable. That is plainly incorrect. The complainer disputes that she was in
a consensual sexual relationship with the appellant when she was 17. If the evidence is
admitted this will inevitably open up a discrete chapter at the trial, focussed on whether the
complainer or the appellant is to be believed on this aspect of the case. Such an inquiry
would clearly be collateral to the question of whether the Crown is able to prove that the
conduct alleged in charges 1 and 2 occurred. That is the real issue in the prosecution. There
would be a serious danger that the attention of the jury would be deflected from the real
issue onto the contentious side issue of what happened or did not happen when the
complainer was 17. In my opinion, the evidence sought to be led about what allegedly
happened consensually when the complainer was 17 has no meaningful (ie relevant)
connection with whether the Crown can establish that the appellant sexually abused the
complainer when she was still a child between the ages of 13 and 16. Such evidence would
cast no light on the real issue. It tells one nothing about whether the appellant abused the
complainer as alleged in charges 1 and 2.
[46]
I am not persuaded that the refusal to admit the evidence will in any way impair the
appellant's ability to present a properly focussed and fair defence to charges 1 and 2. He
will be able to challenge all the evidence, including the complainer's testimony, relied on by
19
the Crown in support of those charges. If he elects to do so, he will be able to testify that no
such conduct occurred. He will be able to explain what he says was the true nature of this
relationship with the complainer at the time of the charges. What he will not, however, be
permitted to do is to divert the focus of the trial onto a disputed side issue about whether or
not the parties had a consensual sexual relationship 4 years after the child sexual abuse is
alleged to have begun and by which time the complainer was no longer a child. I do not
consider that it would be in the interests of justice to allow the trial to be side tracked in this
way.
[47]
The present case does not merely involve deciding whether sexual intercourse or
some other sexual activity took place either (a) before or (b) after the complainer became of
age. The case is more nuanced and complex than that. It is important to recall that the
nature and extent of the sexually abusive conduct alleged in charges 1 and 2 goes
significantly beyond the nature and extent of the consensual sexual activity described in the
appellant's amended application under section 275. It is also important to appreciate that
the Crown alleges that the complainer was the victim of child sexual abuse of a more
extensive and perverted nature than the types of conduct which the appellant says took
place consensually when the complainer was no longer a child. In particular, charge 1
alleges, amongst other types of conduct, that the appellant repeatedly massaged the
complainer's legs and body, shaved her pubic area, took a photograph of her whilst she was
naked, showed her pornographic material and penetrated her vagina with a banana. The
appellant does not contend that any of these things happened during the consensual sexual
activity which he says occurred when the complainer was 17. So the issue is not simply
whether sexual conduct of an undisputed nature happened either when the complainer was
underage or alternatively when she was of age. The case in respect of charges 1 and 2 does
20
not involve a simple binary choice of that type. Properly characterised, the issue arising in
respect of charges 1 and 2 is whether the Crown can prove that the appellant sexually
abused the complainer in the various ways alleged, during the period covered by the libel
when she was a child. There is a good deal more to the case than the question of merely
identifying the time something of an agreed nature took place.
[48]
For these reasons I conclude that the preliminary hearing judge was right to refuse
the section 275 application on the ground that the evidence sought to be elicited was
irrelevant under the common law. It follows that the provisions in sections 274 and 275 are
not engaged. Since preparing an initial draft of this opinion, I have had the advantage of
reading Lord Turnbull's judgment. I fully agree with it. I would move your Lordships to
refuse the appeal.
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