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M.M. v. Her Majesty Advocate [2004] ScotHC 60 (11 October 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

Appeal No: XC836/03

OPINION OF THE LORD JUSTICE CLERK

APPEAL

M M

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Appellant: Bovey QC, M D Moir; Drummond Miller, WS

Respondent: Murphy QC, AD; Crown Agent

11 October 2004

Introduction
[1] This is an appeal against a decision of Lord Macfadyen dated 20 June 2003 to refuse a devolution minute lodged by the appellant raising certain human rights issues in connection with the indictment presently laid against him.

[2] The appellant has been indicted in the High Court on the following charges:

"(1) on 31 December 2000 at [locus] you did assault [first complainer] ... and did seize her by the body and handle her breasts and thereafter seize her by the head and neck and attempt to place your private member in her mouth;

(2) on 30 June 2001 in a motor vehicle then travelling between [locus] and [locus], you did assault [first complainer] ... and did handle her breasts;

(3) on 1 July 2001 at [locus] you did assault [first complainer] ... and did seize her by the neck and attempt to kiss her on the mouth and thereafter seize her by the body, kiss her on the mouth, seize her by the hand and place her hand on your private member; and

(4) on 17 August 2001 at [locus] you did assault [second complainer] ... and did handle her breasts and did place your private member in her mouth and thereafter place your hands over her mouth, lie on top of her and did rape her."

[3] The appellant has raised the devolution issue on the ground that the provisions of sections 274 and 275, as amended, of the Criminal Procedure (Scotland) Act 1995 are inconsistent with his right to a fair trial in terms of article 6 of the European Convention on Human Rights (the Convention) and are accordingly invalid.

The devolution issue
[4] The devolution issue arises from the amendment of the original wording of sections 274 and 275 by sections 7 and 8 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (the 2002 Act), which was an Act of the Scottish Parliament. Such an Act is not law to the extent that any of its provisions is outwith the legislative competence of the Parliament (Scotland Act 1998, s. 29(1)). A provision is outwith that competence to the extent, inter alia, that it is incompatible with any of the Convention rights (ibid, s. 29(2)(d)). Any such question is, by definition, a devolution issue (ibid, Sch 6, para 1(a)). The Convention rights are those incorporated into law by the Human Rights Act 1998 (Scotland Act 1998, s. 126(1); Human Rights Act 1998, s. 1(1)(a)).

[5] Article 6 of the Convention provides inter alia as follows -

"1 In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ...

Everyone charged with a criminal offence has the following minimum rights:

...

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

The historical background
[6] The common law rules of evidence in cases of rape, which applied until 1985, entitled the accused to attack the moral character of the complainer (David Allan (1842) 1 Broun 500; James Reid and Ors (1861) 4 Irv 124; Dickie v HM Adv (1897) 24 R (J) 82), and to establish, to a limited extent, that she had previously had intercourse with the accused or had had intercourse with other men (Dickie v HM Adv, supra; Walker and Walker, Evidence, 2nd ed, para 7.7.2).

[7] Numerous jurisdictions have applied rules of this kind on the view that the complainer's previous sexual experience or adverse sexual reputation makes it more likely that she consented to intercourse and makes it less likely that she is a credible witness (cf. Dickie v HM Adv, supra, Lord Justice Clerk Macdonald at p 84; R v Seaboyer, (1991) 83 DLR (4th) 193, McLachlin J at pp 258-259). In recent years the view has emerged that these justifications reflect "twin myths" (cf R v Seaboyer, supra). The policy priorities underlying law reform in this area have generally been to prevent juries from giving undeserved acquittals out of prejudice against the complainer, rather than on an objective view of the evidence, and to protect the complainer from being harassed by questions on intimate matters, in order both to protect her privacy and to prevent victims of such crimes from being deterred from reporting them.

[8] In 1983 the Scottish Law Commission published a report on Evidence in Cases of Rape and Other Sexual Offences (Scot Law Com No 78). It recommended that, in cases of rape and other sexual offences, the court should not as a general rule admit defence questioning or evidence that showed or tended to show that a complainer had at any time been of bad character, associated with prostitutes or engaged in prostitution; and should not admit questioning or evidence that showed or tended to show that the complainer had at any time engaged with any person in sexual behaviour not forming part of the subject-matter of the charge. The Commission also recommended that the court should have a discretion to admit such questioning or evidence on a strictly limited basis. The Commission's proposed prohibition would have extended to questioning or evidence which showed or tended to show that the complainer was "not of good character ... " (ibid, draft Bill, cl 1).

[9] Section 36(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (the 1985 Act) added sections to the Criminal Procedure (Scotland) Act 1975 (the 1975 Act) that for the most part implemented the Commission's recommendations. Those sections became sections 274 and 275 in the 1995 consolidation (Criminal Procedure (Scotland) Act 1995 (the 1995 Act)), which, so far as relevant to this appeal, were as follows:

"274.-(1) In any trial of a person on any charge to which this section applies, subject to section 275 of this Act, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer -

(a) is not of good character in relation to sexual matters;

(b) is a prostitute or an associate of prostitutes; or

forming part of the subject matter of the charge ...

275.-(1) Notwithstanding section 274 of this Act, in any trial of an accused on any charge to which that section applies, where the court is satisfied on an application by the accused -

(a) that the questioning or evidence referred to in subsection (1) of that

section is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or on behalf of the accused;

(b) that the questioning or evidence referred to in paragraph (c) of that

subsection -

(i) is questioning or evidence as to sexual behaviour which took

place on the same occasion as the sexual behaviour forming the subject matter of the charge; or

(ii) is relevant to the defence of incrimination; or

questioning or evidence referred to in that subsection,

the court shall allow the questioning or, as the case may be, admit the evidence.

Where questioning or evidence is or has been allowed or admitted under this section, the court may at any time limit as it thinks fit the extent of that questioning or evidence.

(3) Any application under this section shall be made in the course of the trial but in the absence of the jury, the complainer, any person cited as a witness and the public."

Section 274(1)(a) therefore differed from the proposals of the Commission in one important respect, namely that it confined the restriction to attacks on the character of the complainer "in relation to sexual matters."

The Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

The pre-legislative consultation document - "Redressing the Balance"
[10] On 9 November 2000 the Scottish Executive published a pre-legislative consultation document Redressing the Balance - Cross-examination in Rape and Sexual Offence Trials.

[11] The consultation document proceeded on the view expressed in a research report (Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials (1992), by Dr Beverley Brown, Ms Michele Burman and Dr Lynn Jamieson) that the 1985 amendments were unsatisfactory and inadequate. The important judgment expressed in the report was that, notwithstanding the 1985 legislation, the acquittal rate, particularly in rape cases, remained "extremely high at 78%" (para 6.8). The writers identified three problems, namely that the rules laid down in the former sections 274 and 275 were not being followed in the practice of the courts; that where sexual history or character evidence was being admitted legitimately, the legislation was not achieving its aims; and that there was a need to control subtle character attacks (para 6.9). I shall return to this last point later.

[12] In the discussion of the scope of defence cross-examination and evidence, the consultation document set out "two basic objectives." These were (1) to ensure that evidence of the complainer's sexual history and/or her character should be admitted only when its relevance to the crime libelled had been demonstrated; and (2) to ensure that such evidence would not be admitted if it was likely to cloud the issues unnecessarily or cause undue prejudice and accordingly to distort the judicial process (para 105). The document considered the approach adopted in section 176(2) of the Canadian Criminal Code in response to the decision of the Canadian Supreme Court in R v Seaboyer (supra). That section prohibited the leading of evidence of any sexual activity engaged in by the complainer other than that forming the subject-matter of the charge, except where the court decided, upon a written application, that evidence of specific incidents of sexual activity was relevant to the issue at the trial and had a significant probative value that was not substantially outweighed by the danger of prejudice to the proper administration of justice. The consultation document commented that this approach had much to recommend it (paras 106-112).

[13] The consultation document referred to a specific problem that had been identified in the 1992 research report (supra) and in the periodical literature (cf Prosecuting and Defending Rape: Perspectives from the Bar, Jennifer Temkin, (2000) 27 Journal of Law and Society 219), namely the putting of questions to the complainer on a non-sexual topic for the purpose of hinting obliquely against her sexual character. On this point the consultation document said

"We fully accept that the credibility of the complainer is a central issue and that in many instances it is the central issue. There can be no objection in principle to the complainer's credibility being tested, as with any witness. There is, however, an issue as to what is acceptable in testing credibility. Research has shown that in trials for sexual offences, the defence often resorts to innuendo and subtle character attacks which are intended to create an atmosphere of bad character and 'easy virtue' around the complainer with (presumably) the intention of making her appear generally less credible, but without producing evidence that she has ever behaved dishonestly. We do not think this is a legitimate tactic, but as the law stands at present, it is difficult to prevent." (para 104).

The consultation document saw this as a specific weakness of the existing legislation (para 115).

The Policy Memorandum
[14] In 2001, in the light of the public consultation, the Scottish Ministers published the Bill. According to the Policy Memorandum submitted with it, one of the two major policy objectives of the Bill was "to strengthen the existing provisions restricting the extent to which evidence can be led regarding the sexual history and character of the complainer" (para 2).

"17 The Executive believes that there are a number of deficiencies in these provisions. They are sufficiently elastic not to strongly discourage the use of this type of evidence. Such evidence is rarely relevant. Even where it is relevant, its probative value is frequently weak when compared with its prejudicial effect. This may include invasion of the complainer's privacy and dignity and distortion of the course of the trial by diversion of attention from the issues which require to be determined in arriving at a verdict onto the past behaviour of the complainer. The current provisions rely heavily on individual judges to achieve a proper focus on these matters, without providing clear guidance.

18 Other deficiencies which the Executive believes to exist in the current law are as follows -

The present provisions contain no express requirement that evidence or questioning must be relevant before it is admitted Although as a matter of law irrelevant evidence is not admissible, the existence of statutory tests of admissibility which do not include relevance has sometimes led to a focus on the statutory wording at the expense of relevance.

Any potentially prejudicial effect caused by diverting a jury's attention from the issues it requires to determine in arriving at its verdict does not expressly require to be weighed. Where evidence falls within one of the excepted categories, the court is bound to admit it, regardless of this.

There is no guidance on how the general 'interests of justice' exception is to be interpreted.

The complainer's privacy and dignity are not given any particular status.

Applications to admit evidence or questioning do not require to be in writing and no guidance is given on the content of a decision on admissibility ...

20 The reforms contained in this Bill are designed to prevent the use of irrelevant evidence, and discourage the use of evidence of limited relevance where the primary purpose of such use is to undermine the credibility of the complainer, or divert attention from the issues a jury requires to determine. The intention is to provide a greater degree of focus, requiring the courts to take time to consider in detail whether and how evidence is truly relevant and the extent to which it may divert attention onto issues which are not relevant. A relatively broad degree of judicial discretion remains, but decisions ought clearly to address these matters and should also enable a prompt stop to be put to any evidence or questioning which exceeds the stated limits of admissibility. The Bill also attempts to ensure that both the complainer and the defence are clear at as early a stage as possible what the nature of the defence is, and what this may involve for the complainer.

21 The Bill renders inadmissible any evidence or questioning falling within any of paragraphs (a) to (d) of the new section 274(1). The intention is that (d) will cover use of medical evidence about the complainer which does not relate directly to the alleged sexual offence ...

Restricting the Bill's provisions to evidence of sexual history or sexual character only was a possibility. However, concern was expressed that many subtle character attacks on a complainer, which might have sexual connotations, were not overtly sexual. The Executive believes there is a need to protect complainers from such attacks where their relevance to the issues cannot be clearly demonstrated ...

48. Redressing the Balance invited views on a 'weighing' approach to admissibility of evidence, along the lines of the Canadian Criminal Code and very broadly reflecting what is now contained in the Bill. This was supported by a majority of consultees. The Bill's approach to character evidence which is not explicitly sexual is based on the Consultation Document. Again, a majority of consultees backed this ... "

The Bill proposed the substitution of new sections 274 and 275 in the 1995 Act, which were enacted in due course without amendment.

The consideration by the Scottish Parliament
[15] In the Stage 1 report, the Justice 2 Committee made the following observations on the question of the extension of section 274.

"54. The most extensive evidence, albeit now several years old, comes from research carried out in 1992 by Drs Brown, Burman and Jamieson. The committee heard from Drs Burman and Jamieson their finding that sexual history evidence was introduced in about half of cases: in about 35 per cent of cases using the rules, and in another 15 per cent despite the rules. Their research identified three problems with the current legislation. First, sexual history and sexual character evidence were being introduced without an application. Second, evidence was introduced which went beyond the bounds of the application. Third, non-sexual character evidence was introduced which 'would have a kind of cumulative effect.' They concluded that 'information about bad character is often introduced into a trial in a way that suggests that someone is not a credible witness and is likely to consent to sex' and that 'it was possible for people to use the wording of the law in ways that did not honour its spirit.'

55. It is clear that some of the problems outlined by Drs Burman and Jamieson arise despite the legal protections - evidence being introduced without an application, by whatever means, where an application should have been required. However, the proposed legislation does offer significant additional protections, both in terms of the type of evidence which may be introduced and the process by which applications to introduce evidence are considered.

56. The restriction on non-sexual character evidence is a significant addition that would address Drs Burman and Jamieson's concern about subtle undermining of the complainer's character (and by extension, the probability of their consenting to sex)."

[16] The Committee concluded that the Executive had struck the right balance between the protection of the complainer and the rights of the accused to a fair trial and therefore recommended that the Parliament should agree to the general principles of the Bill (para 81).

[17] At the Stage 1 debate in the Parliament on 21 November 2001 the Deputy Minister for Justice explained the proposed extension of section 274 in the following terms:

"The other major change proposed by the bill is in relation to questioning about the complainer's character and past behaviour. At the moment, applications to introduce sexual history evidence about the complainer can be made orally in the course of the trial with no prior notice. Discussion of those applications may be fairly brief. Sometimes, the evidence slips through without application and before any objection can be made to stop it. Furthermore, there is currently no need to make an application when the evidence is about the complainer's general character or non-sexual behaviour, rather than about sexual activity. Questioning of the complainer as to whether she is an alcoholic, has used drugs, or has suffered mental illness, may be made without any formal application at all, and with little, if any, examination as to whether such questioning is relevant to the issues at trial.

Published research suggests that there are subtle character attacks, using non-sexual evidence to hint at sexual behaviour or to undermine the complainer's credibility, the current law does little or nothing to prevent. That research is not recent, and it may be that that situation is now less common, but the perception is that it happens. The bill must give confidence that it will not" (SP OR, 21 Nov 2001, col 3985).

Sections 274 and 275, as substituted by the 2002 Act
[18] Sections 274 and 275, as substituted by the 2002 Act, are as follows:

"274.-(1) In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer -

(a) is not of good character (whether in relation to sexual matters or

otherwise);

(b) has, at any time, engaged in sexual behaviour not forming part of the

subject matter of the charge;

shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer-

(i) is likely to have consented to those acts; or

(ii) is not a credible or reliable witness; or

(d) has, at any time been subject to any such condition or predisposition as

might found the inference referred to in sub-paragraph (c) above.

(2) In subsection (1) above, 'complainer' means the person against whom the offence referred to in that subsection is alleged to have been committed; and the reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature."

Section 288C applies to rape and numerous other sexual offences.

"275.-(1) The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that-

(a) the evidence or questioning will relate only to a specific occurrence or

occurrences of sexual or other behaviour or to specific facts demonstrating -

(i) the complainer's character; or

(ii) any condition or predisposition to which the complainer is or

has been subject;

(b) that occurrence or those occurrences of behaviour or facts are relevant

to establishing whether the accused is guilty of the offence with which he is charged; and

significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.

(2) In subsection (1) above-

(a) the reference to an occurrence or occurrences of sexual behaviour

includes a reference to undergoing or being made subject to any experience of a sexual nature;

(b) 'the proper administration of justice' includes-

(i) appropriate protection of a complainer's dignity and privacy;

and

(ii) ensuring that the facts and circumstances of which a jury is

made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury's verdict,

and, in that subsection and in sub-paragraph (i) of paragraph (b) above, 'complainer' has the same meaning as in section 274 of this Act.

(3) An application for the purposes of subsection (1) above shall be in writing and shall set out-

(a) the evidence sought to be admitted or elicited;

(b) the nature of any questioning proposed;

relevant;

(d) the reasons why that evidence is considered relevant to those issues;

(e) the inferences which the applicant proposes to submit to the court that

it should draw from that evidence; and

(f) such other information as is of a kind specified for the purposes of this

paragraph in Act of Adjournal.

(4) The party making such an application shall, when making it, send a copy of it-

(a) when that party is the prosecutor, to the accused; and

when that party is the accused, to the prosecutor and any co-accused.

The court may reach a decision under subsection (1) above without considering any evidence; but, when it takes evidence for the purposes of reaching that decision, it shall do so as if determining the admissibility of evidence.
The court shall state its reasons for its decision under subsection (1) above, and may make that decision subject to conditions which may include compliance with directions issued by it.

(7) Where a court admits evidence or allows questioning under subsection (1) above, its decision to do so shall include a statement-

(a) of what items of evidence it is admitting or lines of questioning it is

allowing;

(b) of the reasons for its conclusion that the evidence to be admitted or to

be elicited by the questioning is admissible;

relevant.

(8) A condition under subsection (6) above may consist of a limitation on the extent to which evidence-

(a) to be admitted; or

(b) to be elicited by questioning to be allowed,

may be argued to support a particular inference specified in the condition.

(9) Where evidence is admitted or questioning allowed under this section, the court at any time may-

(a) as it thinks fit; and

(b) notwithstanding the terms of its decision under subsection (1) above or

any condition under subsection (6) above,

limit the extent of evidence to be admitted or questioning to be allowed.

Section 275B(1), added by the 2002 Act, provides that an application for the purposes of section 275(1) shall not, unless on special cause shown, be considered by the court unless made not less than 14 clear days before the trial diet.

The effects of the 2002 Act
[19] The 1985 legislation abridged the scope of the defence to a material extent. The prohibition was restricted to questioning or evidence that related to three aspects of the complainer's sexual history. The court had a discretion to allow questioning or evidence on those matters on two grounds that affected the proper conduct of the defence and on a third that was based on the overall consideration of the interests of justice. The court retained the power to keep the situation under review as the evidential issues developed and could limit the extent of the questioning or evidence as it thought fit. Since the application had to be made during the course of the trial, the defence had the opportunity to react to any new evidential issues that emerged.

[20] In the new section 274, the prohibition now extends to the Crown. It no longer applies only to questioning and evidence relating to the complainer's sexual character and history. It extends to any questioning that bears on the complainer's character generally.

[21] The opening words of section 275 appear at first sight to allow the court to admit any evidence or to allow any questioning of the kind otherwise prohibited by section 274(1); but that is not the case. Whereas the former section 275 made three exceptions to the prohibition, the new section makes only one. It entitles the court to admit questions or evidence of the kind prohibited by section 274(1) only in relation to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating the complainer's character or any condition or predisposition to which the complainer is or has been subject (s 275(1)(a)). The occurrence or occurrences, or the specific facts, to which section 275 refers must be relevant to establishing whether the accused is guilty, and the probative value of the evidence sought must be significant and be likely to outweigh any risk of prejudice to the proper administration of justice arising from its being allowed. In its assessment of the proper administration of justice, the court must take into account inter alia the appropriate protection of the complainer's dignity and privacy (s 275(2)(b)(i)). These preconditions are cumulative.

The scope of this appeal
[22] The parties agree that the 1985 provisions did not offend against article 6. The question is therefore whether the further restrictions imposed by the 2002 Act have that effect.

[23] Counsel for the appellant submitted that the requirements of the present sections 274 and 275 are contrary to article 6 for two main reasons, namely (i) the excessive extent of the prohibition in section 274 and the restricted extent to which the prohibition can be over-ridden by section 275; and (ii) the unfairness of the procedures open to the accused under section 275.

[24] This appeal is therefore narrow in scope. It does not raise the wider issues under section 275 to which Lord Macfadyen has referred in his Opinion (para [41]); nor does it raise what may be important human rights issues relating to the disclosure of any previous relevant conviction of an accused person who has succeeded in an application under section 275 (cf s 275A). Counsel for the appellant did not persist in this last point because the appellant has no convictions.

Conclusions
[25] Although the legislation relates to the sexual offences listed in section 288C of the 1995 Act, in some of which there may be a male complainer or a female accused, its basic purpose is to protect the position of the complainer in a trial for rape. Since that is the context in which the 2002 Act originates (cf Scot Law Com No 78, supra), and since it is the context in which these provisions almost always operate, I shall discuss this case, as counsel have done, in that context. Furthermore, although the restriction applies to both the defence and the Crown, the undoubted purpose of it is to restrict the scope of defence questioning and evidence. I shall therefore discuss this case, again as counsel have done, only in that context.

[26] Before I discuss the general challenge that counsel for the appellant has made to these provisions, I should mention two particular points that he has raised on the interpretation of the sections.

[27] Counsel for the appellant suggested that section 275 was not wide enough to allow the appellant to put it to the second complainer that she and the appellant had lived together before the date of the alleged rape. In my opinion, a prior course of cohabitation by the second complainer with the appellant would not constitute engaging in sexual behaviour not forming part of the subject matter of charge (4) (cf s 274(1)(b). In my view, such cohabitation is outwith the purview of section 274(1); but if there is any doubt on the point, it should be removed if the section is read with section 3 of the Human Rights Act 1998 (cf R v A (No 2), [2002] 1 AC 45, Lord Steyn at paras 32, 45-46).

[28] Counsel for the appellant submitted that the prohibition in section 274 is unnecessarily wide because it applies "in the trial of a person charged with an offence to which section 288C ... applies." He argued that the prohibition therefore extends to the entire libel on which the accused is tried, even if it contains other charges to which section 288C does not apply. In my opinion this submission is unsound. While the subsection refers only to "the trial," it is plain that it means the trial of the accused on the relevant charge.

[29] I therefore turn to the human rights point. The embarrassment and humiliation of a complainer in a rape trial is a genuine social problem. Counsel agree that the protection of the complainer from unfair and intrusive attacks on her sexual history or character and the exclusion of evidence tendered in pursuit of the twin myths to which I have referred are, in general, legitimate legislative aims that recognise the complainer's rights to privacy under article 8 (cf R v A (No 2), [2002] 1 AC 45, L Hope of Craighead at paras. [1], [29]-[33]; SN v Sweden, No. 34209/96, 2 July 2002, unrepd, at para 47).

[30] But the protection of the complainer cannot be seen apart from the basic principles of fairness in Scottish criminal procedure which entitle everyone accused of a crime to defend himself, to confront his accusers and to have a fair opportunity to put his own case. These principles underpin a value that is fundamental to criminal jurisprudence in a free society, namely the protection of the citizen from being wrongly convicted.

[31] The difficult problem of reform in this emotive branch of the law is to reconcile the legislative aims to which I have referred with the basic principles of fairness (SN v Sweden, supra, at para [47]). Although article 6 expresses the right to a fair trial in unqualified terms, what is required for fairness may vary according to context (cf International Transport Roth GmbH v Home Secretary, [2002] 3 WLR 344, Laws LJ at para 84). Individual evidential or procedural rules may be devised to take account of rights and interests other than those of the accused. Such interests include respect for the complainer's rights under article 8 (cf Doorsen v Netherlands, supra, at para 70), and the public interest in the detection and prosecution of crime. The protection of such interests is a clear and proper public objective that justifies a legislature in qualifying to a limited extent the constituent rights comprised within article 6 (Brown v Stott, supra, Lord Bingham of Cornhill at p 60A); but the legislature cannot qualify them to such an extent that the overall fairness of the trial is compromised (Brown v Stott, supra; Rowe and Davis v United Kingdom, supra, at para 61).

[32] In my opinion, the primary aim of the 2002 legislation and the subordinate and specific aim set out in paragraph 36 of the Policy Memorandum (supra), are both legitimate legislative aims. The balancing exercise by which those aims are to be achieved without prejudice to the overall fairness of the trial lies in the first instance within the province of the legislature. The underlying aim of section 274 involves a sensitive social issue that is more appropriate for the consideration of the legislature than that of the courts. In my opinion, the enactment of sections 274 and 275 was within the legitimate area of discretion of the Scottish Parliament. The Parliament had an evidential basis on which to exercise its judgment in the matter, namely the research evidence referred to in the Policy Memorandum, supported by the evidence of two of its authors to the Justice 2 Committee. The underlying policy was fully considered and tested during the legislative process. The policy justification was, in my view, coherent.

[33] But although the legislation is directed to legitimate aims, there remains the question whether the restrictions that it imposes on the defence are greater than are strictly necessary for the achievement of those aims (cf Rowe and Davis v United Kingdom, (2000) 30 EHRR 1, at para 61; Doorson v The Netherlands, (1996) 22 EHRR 330; Brown v Stott, supra).

[34] If section 274 had imposed an absolute prohibition on the questioning or evidence to which it refers, there would have been a violation of article 6 (cp R v Seaboyer, supra, McLachlin J at pp 264-267; Sporrong and Lonnroth v Sweden, (1982) 5 EHRR 35). But in sections 274 and 275 there are safeguards for the accused. The legislation recognises that there may be circumstances in which such questioning or evidence is necessary for the proper conduct of the defence. Instead of prohibiting such questioning or evidence, it places the question of its admissibility under judicial control, recognising that the relevance of evidence on the matters mentioned in section 274(1) will vary according to the circumstances of the case. Section 275 reserves to the discretion of the judge the allowance of such cross-examination and evidence where the circumstances of the case require it in the interests of a fair trial. The exercise of that discretion will depend, in general, on the apparent relevance of the proposed line of cross-examination or evidence, the disadvantage, if any, to which the accused will be put if it is not allowed, and the overall consideration of the interests of justice (eg Cumming v HM Adv, 2003 SCCR 261, at paras [10], [16]).

[35] The decision of the court under section 275 will in every case depend on the nature of the prosecution case and of the proposed questioning or evidence. The probative value of evidence that the complainer had a sexual experience with another man may be much less than that of evidence that she had a sexual relationship with the accused; and there may be strong reasons for the court's allowing reference to a matter affecting the complainer's character that has no conceivable sexual connotations; for example, a previous conviction of the complainer for perjury or for perverting the course of justice, or some mental condition of the complainer that predisposes her to fantasise or to exaggerate.

[36] Section 275, in my view, is a reasonable and flexible response to the problem and a legitimate means of achieving the legislative objective (R v A (No 2), supra, Lord Hope of Craighead at paras 90-96, 99, 102-103). It lies within the discretionary area of the judgment that is confided to the Parliament (R v DPP, ex p Kebilene, [2002] 2 AC 326, at p 381; International Transport Roth GmbH v Home Secretary, supra, Laws LJ at paras 80-87) and in my view meets the requirements of proportionality (De Freitas v Minister of Agriculture, [199] 1 AC 69, Lord Clyde at p 80).

[37] Counsel for the appellant also submitted that the legislation is excessive because section 275 does not entitle the court to admit in evidence all that section 274 excludes. Counsel relied for that submission on section 275(1)(a), which restricts the admissible questioning or evidence to a specific occurrence or to specific occurrences or to specific facts falling within subsection (1)(a)(i) and (ii). In my opinion, it was reasonable for the legislature to make the judgment that if there were to be an attack on the complainer's character, the prejudice to her should be minimised by the exclusion of vague and general allegations. That is, in any event, the approach that the court would normally take to such an attack under the conventional rules of evidence.

[38] I conclude therefore that the effect of the legislation is not disproportionate per se. I therefore turn to the submissions of counsel for the appellant on the separate question as to the fairness of the procedures by which the accused may seek the benefit of section 275.

[39] Counsel for the appellant submitted that the practical consequences of the legislation are unfair in three respects. The first is the burdensome nature of the procedural provisions that, he submitted, operate unfairly on the defence. The indictment must be served within 80 days of full committal, if the accused is in custody. The trial must start within a further 30 days. If the indictment is served on the 80th day, and the trial is fixed for a date that is 30 days later, the defence has, in view of the need to give 14 clear days notice, only 15 days to prepare a section 275 notice. The notice requires the defence to give notice of "the nature of any questioning proposed" (s. 275(3)). If the defence fails to give such notice timeously, the notice can be allowed only if the defence can show special cause (s. 275B(1)).

[40] In my opinion, these provisions are not unfair in this respect. I do not see why the court should assume that if the period for preparation is the minimum that is legally possible, there is necessarily anything unfair about that. If the circumstances of the case are such that that period is unreasonably short, and that the defence is at an unfair disadvantage on that account, section 275B(1) gives the court a discretion in favour of the accused. Furthermore, if the point emerges only in the course of the trial, it may found a plea of special cause for the granting of leave of the court (s 275B(1)).

[41] The appellant has lodged a draft notice in terms of the new section 275(3) setting out the lines of cross-examination of the complainer for which he will seek the approval of the court. In my view, the draft notice is unnecessarily specific in listing the questions that counsel proposes to put to the complainer. The relevant requirement is that the defence should give notice of the "nature" of the questioning proposed. In my view, the notice is sufficient if it gives reasonable specification of the matters set out in section 275(3). I agree with Lord Macfadyen on this point (at para [46]).

[42] The second suggested ground of unfairness is that the new procedure may take the decision on admissibility under section 275 out of the hands of the trial judge. Notice of intention to cross-examine on a specified matter must be made by way of written application on 14 days notice. The question is then decided at a preliminary diet. The judge who makes the decision at that hearing may not be the judge who will preside at the trial. Counsel for the appellant suggested that this is unfair because the judge does not have access to the precognitions of the Crown or the defence, and must make the decision blind. He must attempt to predict what course the evidence in the trial will take. Evidential issues should not be resolved in the abstract. They are best resolved in the course of the trial when their significance can be determined in the light of the evidence. Furthermore, when the question has been determined in advance at a preliminary hearing, the defence can have further lines of questioning or evidence allowed only if it can show special cause (s. 275B(1)). On the other hand, during the course of the trial the court itself has the power to restrict the leave that has already been granted at a preliminary hearing (s. 275(9)), and in the making of that decision the question of special cause does not apply.

[43] In my opinion, this submission is unsound. It is reasonable, in my view, that the course of a trial should not be disrupted by a hearing, outwith the presence of the jury, on an application of the kind to which section 275 relates. Such a hearing may involve evidence. A preliminary hearing on the point is a more efficient and expeditious way of having it decided. While it is true that at the preliminary hearing the presiding judge will not have as full and accurate an assessment of the evidential issues as the trial judge will have in due course, the accused is put at no disadvantage in this respect. The judge at the preliminary hearing must give reasons if he grants the defence application (s 275(7)). 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, either by limiting or extending a grant already made (s 275(9)) or by allowing a fresh application on cause shown.

[44] Nor is there anything unreasonable, in my view, in the power of the court further to restrict the scope of a leave that has already been granted. Experience shows that criminal trials seldom run exactly to plan from either side's point of view. The course of the evidence may indicate that a line of questioning, apparently significant on paper, is in the event of little relevance to the true issue.

[45] The third suggested ground of procedural unfairness is that the new provisions create an inequality of arms by allowing the Crown to cross-examine the accused and his witnesses without restriction while the defence is restricted by section 274; and by requiring the defence to give advance notice of the lines of cross-examination and evidence that it proposes to pursue.

[46] I do not accept this submission. Equality of arms is no more than a figure of speech that refers to the basic principle that both sides should have the opportunity to present their cases without unfair restriction and that neither side should be put at a substantial disadvantage (Dombo Beheer BV v The Netherlands, (1993) 18 EHRR 213). Equality of arms cannot mean that both prosecution and defence must be subject to identical rules.

[47] In a sense there is an in-built inequality of arms in the criminal prosecution system since the Crown must give advance notice of the charge that it makes, whereas the accused is not obliged, except where a special defence is necessary, to disclose his line of defence. The Crown, unlike the defence, bears the onus of proof from the outset; must prove all material facts by corroborated evidence, and must prove its case beyond reasonable doubt. In every prosecution the Crown has a duty to intimate to the defence any information in its possession that may assist the defence case or undermine the Crown case (McLeod v HM Adv, 1998 SCCR 77). The defence has no such duty.

[48] Moreover, in every prosecution the defence enjoys a greater opportunity of advance disclosure since the Crown has to intimate its list of witnesses, all of whom are available to the defence for precognition, along with the indictment.

[49] With these considerations in mind, I do not see how the entitlement of the Crown to cross-examine the accused and his witnesses without any restriction, subject only to section 266 of the 1995 Act, and to do so without having to give advance notice to the defence, can be seen to involve any real issue under article 6. During the continual process of reform in criminal law and procedure, the balance of advantage will swing from time to time between prosecution and defence. I cannot see how this legislation so upsets that balance as to compromise the overall fairness of the trial.

[50] I accept that where the defence seeks to attack the complainer's character, the legislation requires it to show its hand on that point. Since the notice must be intimated to the Crown, the Crown has the opportunity to re-precognosce the complainer. It can be said that thus forewarned, the complainer is forearmed. I can see nothing unfair in that.

[51] These sections recognise inter alia the right of the complainer to respect for her privacy (Darroch v The Queen, (2000) 191 DLR (4th) 539). If that right is to be infringed by judicially sanctioned questioning or evidence, it is necessary that the defence should give notice of its proposal so that the Crown can consider on what ground, if any, it should oppose it and so that the court can make an informed decision. The disclosure to the Crown of the proposed line of defence is no novelty. The Crown has a similar opportunity where there is a successful appeal against conviction, or where a diet is deserted pro loco et tempore in the course of a trial, and there is then a second prosecution. Although these are exceptional circumstances, they occur frequently. It has never been suggested that in such cases the accused's rights under article 6 are infringed. If they were, the accused would be immune from being re-prosecuted. In any event, in many cases the complainer will be given notice of the intended line of defence when she is precognosced on the accused's behalf.

[52] In my view, there is no human right to spring a surprise line of questioning on the complainer (Darroch v The Queen, supra, at paras [55]-[56]). If the line of cross-examination is well-founded, it will establish itself to the jury, or at any rate be relevant to the question of reasonable doubt, whether it comes to the notice of the complainer before the trial or during the course of cross-examination.

[53] It may be that in the course of practical experience of these provisions, problems that are presently difficult to foresee will come into sharper focus. But on the arguments that have been presented to us in this somewhat abstract discussion, I can see no reason for holding that the legislation should be invalidated on Convention grounds.

Disposal
[54] I propose that we should refuse the appeal.

M.M. v. Her Majesty Advocate [2004] ScotHC 60 (11 October 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

Appeal No: XC836/03

OPINION OF LORD OSBORNE

APPEAL

M M

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Bovey QC, M D Moir; Drummond Miller, WS
Respondent: Murphy QC, AD; Crown Agent

11 October 2004

[55] I agree with the Opinion of your Lordship in the Chair and have nothing further to add.

M.M. v. Her Majesty Advocate [2004] ScotHC 60 (11 October 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

Appeal No: XC836/03

OPINION OF LORD JOHNSTON

APPEAL

M M

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Bovey QC, M D Moir; Drummond Miller, WS

Respondent: Murphy QC, AD; Crown Agent

11 October 2004

[56] I have had the opportunity to read the Opinion of your Lordship in the chair in draft and I am in complete agreement with what your Lordship proposes. I would just like to add a few general observations on what I consider to be a very important and developing area despite the history.

[57] In that respect I grateful adopt from your Lordship's Opinion the history of the legislation and its relevance to the case.

[58] At the end of the day, however, I consider that the matter is substantially focused by De Freitas v. Minister of Agriculture 1999 1 AC 69, particularly per Lord Clyde at page 80. This, of course, has to be reviewed against the background that the relevant section is a reasonable and flexible response to the problem it focuses and represents a legitimate means of achieving a legislative objective lying within the discretionary area of judgment bestowed on Parliament ( R. v. A (No. 2) 2002 1 AC 45 and R. v. D.P.P. ex parte Kebilene 2002 2 A.C. 326).

[59] As focused by your Lordship in the chair, it seems to me that it is necessary to identify the aim of the legislation and determine its legitimacy in the context of the two propositions to which I have referred and the final assessment must be whether or not the legislation, once construed, goes further than what is necessary to achieve that legitimate aim. It then becomes disproportionate.

[60] The blanket ban imposed by section 274 is an innovation in as much as it goes beyond the previous legislation, not least when it strays into areas of credibility. It has to be recognised that in any case involving a sexual offence, particularly rape, the issue of credibility will inevitably arise by one means or another in the course of a trial whether, against the background of a denial of the crime having occurred, or the defence of consent. If, however, the aim is to avoid what has been described as subtle and unwarranted attacks on the character and sexual history of the complainer, such as has been identified by the various researchers referred to by your Lordship in the chair, it cannot be denied that that is a legitimate aim provided it does not seriously fetter the accused's right to a fair trial and a legitimate defence.

[61] Turning to section 275 it is immediately self-evident that, the blanket ban having been imposed by the previous section, if the effect of this section was to take that ban away by allowing unlimited questioning, the legitimate aim of the legislation would be destroyed. It therefore follows that the scope of the relief that is offered by this section must be less than removing the entire ban. The wording is very unhappily expressed and it undoubtedly is only invading the ban from the previous section to a limited extent. However, it does seem likely that that extent will achieve the aim and does not fetter the defence so as to render it disproportionate. In these circumstances I do not consider that the legislation in section 275 contravenes the Convention in so far as it permits questioning within its framework. A far more serious question arises in relation to the power, if not duty, of the Crown to reveal previous convictions if the provisions of section 275 are operated by an accused. However, since, in the present case, we are informed that the accused has no criminal record this point does not arise for decision at this time. I would, however, wish expressly to reserve my opinion on this question.

[62] I would like to make one further observation. The issue of whether or not a fair trial is prejudiced by the legislation is better decided after a trial than before it. Whatever, therefore, may be the impact of the legislation in terms of the Convention it will always be open to an accused person on being convicted to argue an appeal that the line he was forced to take, or not as the case may be, in relation to section 275 was prejudicial to his defence. To that extent there is a long-stop buffer against an injustice being perpetrated.

[63] I would refuse the appeal.