Scottish High Court of Justiciary Decisons

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Cite as: 2007 SLT 452, 2007 SCCR 159, 2007 JC 131, 2007 GWD 12-243, [2007] ScotHC HCJAC_20, [2007] HCJAC 20

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Eassie

Lord Marnoch

[2007] HCJAC20

Appeal No: XC230/05

OPINION OF LORD JOHNSTON

APPEAL AGAINST CONVICTION

MITCHELL JOHN DAVID MOIR

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Bovey, QC, Moir; Steel, Eldridge Stewart, Cupar

Alt: Murphy, AD; Gill, Crown Agent

13 March 2007

[1] The appellant was convicted after trial of three of the four charges that he faced with some amendments and deletion. They are in the following terms:

"(1) on 31 December 2000 at 29 Main Street, Springfield, Cupar, Fife, you did assault DN, c/o Fife Constabulary, Cupar 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;

....

(3) on 1 July 2001 at 29 Main Street, Springfield, Cupar, Fife you did assault DN, c/o Fife Constabulary, Cupar 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 face, seize her by the hand and place her hand on your private member;

and

(4) on 17 August 2001 at 29 Main Street, Springfield, Cupar, Fife you did assault GL, c/o Fife Constabulary, Cupar and did handle her breasts and did place your private member in her mouth."

[2] The appeal turns essentially upon the terms of the amended sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.

[3 ] The relevant provisions of this legislation ("the legislation") are as follows.

"S.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;

(c) has, at any time (other than shortly before, or at the same time as or 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.

S.275-(1) The Court may, on application made to it, admit such evidence or allow such questions 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, and

(b) that occurrence or those occurrences or behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and

(c) 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 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 or, 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 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

......................."

[4 ] The case has had a complicated procedural history.

[5 ] After originally being served with an indictment, thereafter the appellant presented a minute seeking to raise a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 which was concerned with the compatibility of the legislation with the European Convention on Human Rights relating particularly to the issue of a fair trial. That issue was determined by Lord Macfadyen in an Opinion issued on 20 June 2003. That decision was appealed to this Court by the appellant which was determined by this Court in Opinions issued on 11 October 2004 (HMA v MM 2004 SCCR 158). The substantial Opinion was delivered by the Lord Justice Clerk with which the concurring judges, including myself agreed. The devolution issue was resolved in favour of the Crown to the extent that the Court held that the legislation was not incompatible with the Convention and in particular Article 6 and the matter was remitted for trial.

[6 ] Thereafter the appellant made an application to the Court of First Instance under the legislation, enumerating a number of factual issues which the appellant wished to put, or at least to be given the opportunity to put to the complainers in cross-examination. Lord Wheatley heard this application and granted it to some extent but refused a number of the enumerated items.

[7 ] The relevant part of Lord Wheatley's Report is as follows:

"The second paragraph in the application which was refused is paragraph 1(m). This refers to the second complainer indulging in sexual fantasies which she held out to her friends and classmates as being true. I consider that these were wholly collateral issues and I was not clear what relevance such allegations had to the present complaints. In any event, such evidence is clearly struck at by the terms of section 274(a) and again I concluded that I had a discretion to reject this part of the application. Nothing in the submissions for the appellant suggested that the exceptions provided by section 275(a) and (b) should apply.

The third paragraph in the application which was rejected was paragraph 1(n) which alleges that in general terms this complainer is a habitual liar. This again is clearly struck at by paragraph 274(a), and my note of the hearing tends to suggest that this may have been accepted by counsel for the appellant. Paragraph 1(o) requires no comment.

Paragraph 1(s), (t), (u) and (v) are all concerned with allegations that the first complainer had had an abortion when she was 14 years of age. I considered that clearly these allegations were struck at by section 274(b) of the Act, and there were no grounds for holding that there should be any exception to the general rule.

Paragraph 1(w) refers to an argument following discussion about the alleged abortion described in the previous paragraphs and refers to a further allegation against the appellant of a sexual nature. Again, this averment is in my view clearly struck at by the terms of the section.

In paragraph 1(y) the material contained therein was admitted in terms of the application under deletion of a reference to the fact that this complainer had been randomly making sexual advances upon various men at the village hall. Again these are the kind of averments which I understand the purpose of the section is to exclude from evidence, and no reasons were evident as to why the normal rules should not apply.

Paragraph 1(d) was concerned with an allegation that one of the complainers had asked the Procurator Fiscal Depute at Cupar to withdraw the charges but was told it was too late. I considered this was irrelevant and speculative, and could also potentially refer to other matters which were inappropriate generally and in terms of the section.

Paragraph 1(ff) alleges that the second complainer indulges in sexual fantasies. Again it is my understanding that the purpose of the Act is to exclude questioning of this nature and that these particular averments were struck at by section 274(a) of the Act, and I could find no reason for departing from the normal rule.

Paragraph 1(gg) was concerned with an allegation that the second complainer had told a Crown witness that she had been pregnant and that this was not true. Similarly, this allegation is in my view clearly struck at by section 274(a) and (b), and nothing was suggested which persuaded me that I should exceptionally allow this evidence to be considered..

In short I concluded that the averments in the application which I excluded were all of a nature that section 274 of the Act was specifically designed to exclude and nothing in the submissions I heard led me to believe that I should exercise any discretion I had in any other way."

[8 ] Thereafter the issue went to trial and was, however, required for evidential reasons arising during its course to be deserted pro loco et tempore. A further trial took place again before Lady Dorrian leading to the convictions which are now appealed.

[9 ] The issues considered by Lord Wheatley in relation to the section 274 and 5 application were to some extent reconsidered by Lady Dorrian at both the beginning and in the course of the second trial. In particular, she overruled the decision of Lord Wheatley in relation to application 1(a). She also received an application to reconsider other paragraphs which had been refused by Lord Wheatley. In that respect she stated as follows:

"Mr Moir made a subsequent application for me to re-consider other paragraphs which had been refused by Lord Wheatley, in the first place paragraphs (m) and (n). He did so on the basis of his understanding of what had happened when this case went to the Judicial Committee of the Privy Council on an appeal against a decision at a Preliminary Diet on a Devolution Issue relating to the compatibility of Sections 274, 275 and 275(B) of the Criminal Procedure (Scotland) Act 1995 with the European Convention on Human Rights Article 6. The original decision and that of the Appeal Court was that the sections were compatible with the Convention. A Note to the Report in 2004 SCCR 658 at page 695 tells us that the Judicial Committee refused leave to appeal, accepting the view that whether the legislation produced a fair trial was better decided after trial and that the appropriate course was to allow the Crown to proceed to trial and the appellant to raise the question of compatibility, if there was a conviction and the issue was still relevant. Mr Moir's view was that he had to raise these issues in the trial to give this Court an opportunity to right what might be seen as an unfairness. It was in these circumstances that he was renewing his application in relation to paragraphs (m) and (n). It should be noted that there was nothing in the evidence so far given by the complainer which had in any way touched on the matters which counsel sought to address in paragraphs (m) and (n). No further material beyond that which was available to Lord Wheatley had been raised and it did not seem to me that there was cause shown for the purposes of Section 275(B) for me to consider afresh an application in respect of these paragraphs. In any event, I took the view that the sort of matters referred to in this paragraph were precisely the sort of evidence which the legislation seeks to prevent. I could not see, in the way in which the matter was presented to me, that there was a probative value to this evidence which would outweigh any risk of prejudice to the proper administration of justice, and in particular, the appropriate protection of a complainer's dignity and privacy. Accordingly I refused the motion.

Later still Mr Moir made a further application in respect of paragraphs S, T, U, V, W and Y of the original application. Again these matters had not been covered in evidence in any way. The only other matter put before me was that information had been received by counsel since the start of the trial indicating that there was a bitter dispute between the witness Norman and the brother of the appellant regarding access to their child. I did not consider that there was any special cause shown to entitle me to consider fresh applications and refused the motion."

[10 ] The relevant parts of the application so far as to be considered by this Court are as follows.

[11 ] (m) That the said GL indulges in sexual fantasies which she held out to her friends and fellow classmates as being true experience which she has had. The said GL has reported having sex with 15 men in one night. She is reported having multiple sexual encounters with men via the internet. That she is reported having her clitoris pierced. That she is reported having sex with different men each weekend she was at Perth. She has told friends she was bi-sexual. That she had oral sex with a man in a public toilet Perth. None of these accounts are true.

[12 ] (n) That in general terms she is an habitual liar to her friends and classmates.

[13 ] (c) Who did she tell what happened to her? When did she tell them? What did she tell them had happened to her?"

[14 ] With regard to the witness N the issue of whether she stated to have had an abortion was raised, being excluded by the relevant judge and more importantly the following.

[15 ] "(dd) That the Crown Witness DN has asked procurator fiscal depute at Cupar to withdraw the charges but was told it was 'too late'".

[16 ] Before turning to deal with specific submissions of counsel I consider it is necessary to address some matters of general importance.

[17 ] Firstly, as reflected in the Policy Memorandum submitted by the Scottish Ministers when the amending Bill relating to the legislation was presented, the aim of the legislation was to restrict lines of questioning that might otherwise be open to an accused person in relation to sexual offences cases in respect of the evidence of the complainer. There was a generally held view that victims of sexual crime were subjected to unnecessary and at times irrelevant questioning which could be embarrassing or worse. The policy of the legislation was effectively to prohibit any form of questioning relating to character or other conduct but allowing limited exceptions to that general prohibition in terms of section 275 if its terms were met. It was not disputed in this case that the application being made was designed to operate under section 275(1). The ultimate question for this Court after trial is, firstly, whether the lower Court properly operated that position in the context of this case and secondly, whether or not overall the appellant had had a fair trial.

[18 ] In that latter respect it has to be emphasised and permanently borne in mind in this case that no further attack was made by counsel on the general question of compatibility between the legislation and the Convention. The issue before this Court which was focussed on two approaches albeit somewhat overlapping, both the particular and the general, was whether in this case the appellant received a fair trial.

[19 ] Secondly, the legislation is unhappily drafted and raises a number of questions of interpretation relevant to this case.

[20 ] While the definitions of "character" and "sexual behaviour" in section 274 are perhaps easy to identify, a much bigger problem arises in relation to the phrase "engaged in such behaviour".

[21 ] The word "behaviour" is all embracing and is habile to cover both any form of conduct but also the making or issuing of statements.

[22 ] Since the aim of the legislation is clear its intention being focussed in the Policy Memorandum, I consider that it is necessary to impose a wide interpretation of the word "behaviour" and of the subsection as a whole which effectively means that it embraces any form of conduct including statements emanating from the complainer in the context of the case in the most general terms. It has to be noted that in the previous legislation questioning was limited to matters of a sexual nature and it is plain that the Scottish Parliament intended to go further than that in this context. There does not seem to me to be any limit that can be imposed on that other than the widest possible terms. This interpretation also has to be applied to the word "behaviour" in section 275(1)(a).

[23 ] That section in itself is not easy to interpret. In this respect I agree with the interpretation put upon the section by Lord Macfadyen in his Opinion at paragraphs 39 and 40 to the effect that the three subsections of section 275(1) are cumulative and the three qualifying elements of subsection 251(a) are: (1) sexual behaviour; (2) other behaviour; and (3) specific facts demonstrating the complainer's character or any condition or predisposition to which the complainer is or has been subject. The subsection thereafter contains two other subsections requiring, first, all the relevant behaviour is relevant to establishing whether the accused was guilty of the offence in question and secondly that the probative value of that evidence sought to be admitted is likely to outweigh any risk of prejudice to the proper administration of justice. It must follow that any application in terms of seeking to admit questioning must pass all three of these hurdles if it is to be allowed to prevail. It is to be noted in passing that Lady Dorrian in her consideration of the matter went straight to subsection (c) and there may be a question as to whether that is the appropriate approach, albeit it may be that she assumed subsections (a) and (b) were already satisfied.

[24 ] A further difficulty arises by reference to the use of the word "predisposition". After some hesitation and after considering the Policy Memorandum and in particular paragraph 21 thereof, I consider the legislation intended to develop the use of that word to a recognised medical condition identified by relevant expert evidence, and not just to some vague notion of tendency or similar leanings in the conduct or actions of the complainer however based.

[25 ] The third and equally important consideration is to look at the legislation in the context of the existing common law at the time of its enactment and this is best found in Walkers on Evidence, 2^nd Edition. Firstly, generally at paragraph 7.1.1.

"Generally speaking evidence of character and evidence regarding an issue which is collateral to the main issue is inadmissible. A "collateral" issue is one which runs parallel to a fact in issue but evidence of it is generally inadmissible on grounds of relevance, because the existence of the collateral fact does not have a reasonable direct bearing upon a fact in issue and thus does not render more or less probable the existence of that fact, and it is inexpedient to allow an enquiry to be confused and protracted by enquiries into other matters.

'Courts of law are not bound to admit the ascertainment of every disputed fact which may contribute, however slightly or indirectly, towards the solution of the issue to be tried. Regard must be had to the limitations which time and human liability to confusion impose upon the conduct of all trials. Experience shows that it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand.' (per Lord President Robertson in A v B 22 G 402)".

Secondly, more specifically the editors at paragraph 7.7.1 and onwards state as follows:

"The accused may, if notice has been given, attack the character of the injured person's credibility as a witness if relevant to the crime charged. In cases of murder or assault the accused may prove that the injured person was of a violent or quarrelsome disposition, but not the commission of specific acts of violence unless, exceptionally, these are directly relevant to the crime charged. It has been held that the victim may be cross-examined, apparently without notice, as to his insobriety at the time of the assault, and that evidence may be led for the defence regarding it. The prosecutor is entitled to ask a witness whether the victim was quarrelsome or inoffensive. In an appeal against conviction for rape, the court accepted that reliable evidence that the victim had previously made false accusations of sexual assaults upon her, which evidence had been unavailable at trial, was highly relevant to the issue of the victim's credibility and the accused's defence of consent. The prosecutor may lead evidence that the victim was of good character.

7.7.2 At common law in cases of rape or of similar assaults upon women, the accused could attack the woman's character for chastity, and could lead evidence that at the time she was reputedly of bad moral character, and that she had previously had intercourse with the accused. The accused could not lead evidence to prove specific acts of intercourse with other men, unless, possibly, these were so closely connected with the alleged rape as to form part of the res gestae. Since 1985 in cases involving a range of crimes of a sexual nature or indecent nature, now specified in the Criminal Procedure (Scotland) Act 1995, s 274(2), evidence that the complainer is not of good character in relation to sexual matters, is a prostitute or an associate of prostitutes or has at any time engaged with any person in sexual behaviour not forming part of the subject-matter of the charge is not admissible either as evidence in chief or by cross-examination except on application to the court which may in its discretion grant or refuse the application and having granted it may limit the extent of the evidence to be presented. Criteria justifying the grant of such an application are set out in section 275, namely: the evidence is to explain or rebut other evidence in the case; the evidence concerns sexual behaviour on the same occasion as the incident libelled or is relevant to a defence of incrimination; or it would be contrary to the interests of justice to exclude the evidence. Evidence of a prior sexual relationship with the accused will not necessarily be admissible, depending upon the time elapsed between the ending of that relationship and the incident libelled. Evidence of the victim's sexual conduct after the date of the crime is generally inadmissible."