"(1) on numerous occasions between 1 January 2003 and 31 July 2004, both dates inclusive, at the house at 475 Methilhaven Road, Buckhaven, and the park area between Sandwell Street and Methilhaven Road, Buckhaven, all Fife, you ... did use lewd, indecent and libidinous practices and behaviour towards [child A] ... and did kiss him, handle his naked private member under clothing, remove his trousers and underwear, lie on top of him and masturbate yourself to the emission of semen onto said [child's] buttocks;

(2) on numerous occasions between 1 January 2003 and 31 July 2004, both dates inclusive, at the house at 475 Methilhaven Road, and at the park area between Sandwell Street and Methilhaven Road, Buckhaven, all Fife you ... did use lewd, indecent and libidinous practices and behaviour towards [child B] ... and kiss him, handle his naked private member under clothing, remove his trousers and underwear, place your own naked private member against the said [child's] naked buttocks;

(3) on numerous occasions between 1 January 2003 and 31 July 2004, both dates inclusive, at the house at 475 Methilhaven Road, and the park area between Sandwell Street and Methilhaven Road, (Buckhaven), all Fife, you ... did use lewd, indecent and libidinous practices and behaviour towards [child C] ... and did kiss him, handle his naked private member under clothing, remove the said [child's] trousers and underwear, lie on top of said [child] whilst he was facing downwards, place your own naked private member against the said [child's] naked buttock and did masturbate yourself to the emission of semen onto the said [child's] naked buttocks."

"1. The following evidence is sought to be admitted or elicited:

(a) (i) on 26 November and 28 November 2002, Social Work records

indicate concerns having been raised about the sexualised behaviour of the complainer [child B] in particular towards his sister [child D], and the complainer, [child C].

(ii) on an occasion prior to the accused being charged on 5 August

2004 the complainer [child C] was standing with his trousers down simulating a sexual act. He was pretending to be having sex by thrusting his hips back and forward. This occurred beside the refuse bin area of the houses 475 to 479 Methilhaven Road and was witnessed by [person E].

(iii) on an occasion about April 2005, the complainer, [child A] was

holding the fence at the rear garden of the premises 475 Methilhaven Road. He was simulating a sexual act. He was pretending to have sex with the fence. This was witnessed by [persons E and F].

(iv) during the summer of 2004, prior to the accused being charged,

at the rear garden of 479 Methilhaven Road, the said [children B and A] were kissing each other. This occurred beside a shed and was witnessed by [person F].

(v) during the summer of 2004, prior to the accused being charged,

on two occasions, the said [child A] was lying on top of the said [child B] simulating a sexual act. He was pretending to have sex with him and rubbing his body on top of him. These occurred in the front garden area of the premises at 475 to 479 Methilhaven Road and the grass area in front of those houses at that locus. This was witnessed by the accused and [person G].

(vi) on an occasion in early 2004, the said complainers [child B,

child A, and child C], were behind a shed at Buckhaven Primary School. The said [child B and child A] had their trousers down and the said [child C] was kissing them around the area of their private parts. This was witnessed by the accused.

(vii) on many occasions during the period from September 2002 to

the present, the complainers [child A, child B and child C] have used sexually explicit language in the presence of the witnesses [persons E, G and F and the accused]. This had also been intimated to the Social Work Department anonymously on 6 September 2002.

(b) That since the accused ... was charged on 5 August 2004, the

complainers [child C and child B] have on numerous occasions asked the witness [person E] if the accused ... was coming out to play with them. This has been witnessed by the said [persons E and F].

(c) On more than one occasion, since the accused was charged on

5 August 2004 the complainers [child A and child B] have said to the witness [person E] 'It's lies and we are wanting Barry to get into trouble'. This has been witnessed by the said [persons E and F].

2. The nature of the proposed questioning is as follows: to establish from the complainers that they have behaved and spoken in the manner indicated in paragraph 1. They will specifically be questioned about incidents where they have kissed one another, simulated sexual acts and used sexually explicit language. The said witnesses [persons E, F, G and the accused] ... will be asked to give accounts of these incidents. Evidence from Social Work records will be sought to be elicited.

3. The issues at the trial to which the evidence is considered to be relevant are as follows:

(a) to explain an apparent change in behaviour of the complainers as being

as a result of their own sexually inappropriate actings towards one another and language and not because of any conduct direct (sic) toward them by the accused ... .

(b) ...

(c) to explain the motivation for incriminating the accused. It will be

suggested that the accused was falsely blamed by the complainers for acting in the way libelled to deflect from the complainers' actings towards one another.

(d) to explain the complainers' ability to describe in detail to the police the

sexual acts libelled consistently with the accused's position that he was not responsible for any such actings, giving concerns regarding the sexualised behaviour of [child B] towards his siblings prior to the period of the libel and their subsequent behaviour and use of sexually explicit language to one another.

(e) the credibility of the complainers [child A and child B] in relation to

the allegations in the indictment.

4. The reasons why the evidence is considered to be relevant are as follows:

(a) the allegations made by the complainers against the accused may have

arisen as a result of an apparent change in their behaviour noted by their relatives. It is submitted that this change of behaviour was not to do with anything attributable to the accused ... , but because of the behaviour of the complainers themselves and towards each other.

(b) the accused's explanation for the complainers falsely incriminating

him with these allegations is that they were behaving in a sexually inappropriate way towards one another.

(c) in the absence of evidence of any other inappropriate sexual conduct

involving the complainers, other than the matters alleged, the court might infer that the only explanation for children of this age to have knowledge of such matters, would be if the alleged offences were truly committed by the accused.

(d) the credibility of the complainers [child A and child B] may be

weakened or undermined in relation to the allegations in the indictment, as a result of the evidence of their prior actions and comments in paragraphs 1(b) and (c).

5. The inferences which the applicant proposes to submit to the court that it should draw from the evidence are as follows:

(a) that the accused ... was not responsible for any sexually inappropriate

conduct directed towards the complainers and the complainers were behaving in a sexually inappropriate fashion which they have sought to blame upon the accused ... by making allegations against him.

(b) that the complainers were able to give a detailed account of sexual

conduct towards them not because of any actings by the accused ... but because of actings between themselves.

(c) the complainers are not telling the truth regarding the allegations

against the accused on the indictment, as evidenced by their subsequent actions and comments."

"In the present case I have come to the conclusion that I should grant the panel's application only to the extent conceded by the Crown, with whose concessions I respectfully agree. I therefore refuse the whole of paragraph 1(a) of the minute. I do so because the individual matters sought there fail to meet the requirements of section 275(1)(a), (b) and (c). More particularly:

(i) disallowed as not being related to 'a specific occurrence or occurrences

of sexual or other behaviour' in terms of section 275(1)(a);

(ii) disallowed as not being

(a) sufficiently specific in terms of time in terms of section

275(1)(a),

(b) relevant to the question of whether the panel is guilty of the

crimes with which he is charged in terms of section 275(1)(b) and (c) of significant probative value likely to outweigh any risk of prejudice to the proper administration of justice in terms of section 275(1)(c). So it fails all the three requirements of section 275(1).

(iii) to (vii) These are all sufficiently specific in terms of date, place and

description but not sufficiently relevant to establishing whether the panel is guilty of the crimes with which he is charged, nor of such probative value as to be likely to outweigh any risk of prejudice to the proper administration of justice. Accordingly these parts fail the requirements of sub-paragraphs (b) and (c) of section 275(1).

My reasons for finding parts of paragraph (a) of the application not sufficiently relevant to the guilt of the accused are as follows:

·        in some cases the behaviour described is markedly different from anything with which the accused is charged (parts (iii), (iv), (vi) and (vii) fall into that category);

·        in all cases they are instances of behaviour by the children among themselves and not involving the panel or anyone else; and

·        I agree with the procurator fiscal depute that sexual knowledge could have other sources, such as she suggested (the media and the playground), so it is not the case that having experienced the matters complained of is the only way in which they could have gained knowledge of these things. Love v H.M.A. 1995 S.C.C.R. 501 is distinguishable on that ground.

My reasons for finding that the probative value is not likely to outweigh any risk of prejudice are as follows:

·        the probative value of the evidence is limited, in my view, precisely because it lacks relevance to the guilt of the panel for the reasons I have just given; and

·        risk of prejudice arises in that the asking of such questions carries a significant risk of causing embarrassment to the complainers and might make it more difficult for them to give their evidence at the trial.

Para. (b) allowed. This was conceded by Crown and I respectfully agree with that concession.

Para. (c) allowed. This also was conceded by Crown but subject to a qualification. Again I agree with the concession and, although I am not sure that the qualification is necessary, for the avoidance of doubt I make it clear that the evidence to be adduced is to be restricted to evidence that the complainers [child C and child B], have told [person E] that they had told lies and wanted the accused to get into trouble with specific reference to the crimes with which the panel is charged. In other words it does not permit more general evidence of the said complainers being liars or having told lies in relation to any other matter. The reasons for which I have allowed the application to the foresaid extent are that the matters sought to be adduced relate to the credibility and reliability of the complainers [children C and B] in the context of a case in which credibility and reliability are plainly going to be critical. Furthermore the suggestions that they had

(a) asked on numerous occasions whether the panel was coming out to

play with them and

(b) lied in relation to these matters, do not carry with them the same

degree of risk to the administration of justice as I have identified in relation to the matters covered in paragraph 1(a) of the application."

"1. The sheriff erred in refusing to admit evidence and allowing questioning of the complainers as referred to in paragraph 1(a) of an amended application made to the sheriff in terms of section 275(1) of the Criminal Procedure (Scotland) Act 1995.

2. The aforesaid evidence and questioning related to specific occurrences of behaviour; said behaviour was relevant to establishing whether the appellant was guilty of the offence with which he was charged.

3. The value of the evidence sought to be admitted or elicited is significant and outweighs any risk of prejudice to the proper administration of justice.

4. As a result of the sheriff's failure to allow the evidence and questioning as referred to in paragraph 1(a) of the said Minute there has been a miscarriage of justice."

Submissions for the appellant

Submissions for the Crown

The decision

"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 ... ".

We have reached the conclusion that the solicitor advocate for the appellant, in his submissions in relation to that aspect of the case, indulged in what was essentially an exercise of speculation. We consider that, given the attempt to satisfy the terms of the subsection that was mounted before the sheriff, he was quite entitled not to be satisfied concerning the requisite matters. In the second place, turning to the provisions of section 275(1)(c), which provides that the court must be satisfied that

"the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited",

the discretionary nature of the exercise which the sheriff had to conduct becomes prominent. In Wright v H.M. Advocate it was decided that the issue for the appeal court in a case such as this was not whether the appeal court might have decided that matter differently at first instance, but whether it was shown that the discretion available to the first instance judge had been wrongly exercised. We have not been persuaded that the reasons given by the sheriff for his decision here demonstrate that that was the case. In all these circumstances, we reject the grounds of appeal advanced on the appellant's behalf. The appeal is refused.