Scottish High Court of Justiciary Decisons

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Cite as: 2007 SCCR 451, 2007 SLT 1170, [2007] HCJ 11, 2008 SCL 160, 2007 GWD 33-561, [2007] ScotHC HCJ_11

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HIGH COURT OF JUSTICIARY

[2007] HCJ 11

OPINION BY LORD HODGE

in the cause

HER MAJESTY'S ADVOCATE

against

STEPHEN RONALD

________________

AD: McSporran

Defence: Burns QC and Campbell, Advocate

27 April 2007

[1] This is an application under section 275 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") in a case in which the applicant is charged with having raped a woman, whom I will refer to as the complainer, in Edinburgh in December 2005. Several paragraphs of the application were not in dispute and several were not struck at by section 274 of the 1995 Act. I refer to them at the conclusion of this opinion.

[2] The contentious paragraphs in the application were the following. First, the defence sought to lead evidence from police and medical witnesses of two apparently inconsistent complaints which the complainer made on 1 and 5 June 2005 about having suffered sexual abuse when she was in her early teens at a school in 1992 or 1993 (paragraph 1(viii) of the application). Secondly, the defence sought to lead evidence of an occasion in Edinburgh in September 2002 when the complainer alleged rape against an associate whom she had visited when she left a hospital, where she was undergoing psychiatric assessment, after misleading the staff by saying that she was going for a walk in the grounds of the hospital. The defence had statements from the police and from the person accused of the rape which contradicted the complainer's account in material ways (paragraph 1(ix) of the application).

[3] Thirdly, the defence sought to lead evidence that the complainer has suffered and suffers from a borderline personality disorder and alcohol dependency syndrome (paragraphs 1(xi)-(xiii) of the application). The application described the disorder as manifesting itself in, among other things, instability in inter-personal relationships, repeated violent and abusive relationships, marked impulsivity, a history of alcohol and drug abuse and also a history of previous similar allegations of sexual offences. It asserted that the complainer was diagnosed as suffering from the disorder in January 2004 and in June 2005. In relation to the syndrome, the application asserted that the complainer had developed a tolerance for up to three hundred units of alcohol per week which caused persistent or recurrent physical and psychological problems. Her use of benzodiazepines exacerbated the effects of alcohol and had the potential to induce a degree of disinhibition.

Submissions

[4] Mr Burns QC submitted that the complainer's borderline personality disorder and dependence of drugs and alcohol affected the credibility and reliability of her accounts of past events. The earlier allegations of sexual offences were symptoms of her disorders. Mr Burns explained that in support of this diagnosis he proposed to lead the evidence of Dr Ryan and Dr Hameed, who were psychiatrists who had cared for the complainer, and also Dr Wylie, who was a consultant psychiatrist who had examined the complainer's medical records and who offered an expert opinion on the effect of her condition on her reliability. The defence had recovered the complainer's medical records and had obtained police statements in relation to the earlier allegations. Mr Burns proposed to lead the evidence of the person whom the complainer accused of having raped her in September 2002 and who denied the allegation, as well as police witnesses in relation to that allegation. He referred me to entries in the medical records which supported his submissions.

[5] Mr Burns also referred me to various authorities which I discuss below. He submitted that the evidence that he proposed to adduce satisfied the tests laid down in section 275 of the 1995 Act. Subject to the deletion of paragraph 1(x) and also the related reference to family sexual abuse in lines 2 to 4 of paragraph 2(vii) of the application, he moved the court to grant the application.

[6] The Advocate Depute confirmed that the principal areas of contention were the paragraphs to which Mr Burns had referred. He had two bases of opposition. First, he submitted that evidence in relation to allegations of sexual offences at the school in the early 1990s and in Edinburgh in September 2002 was inadmissible at common law as relating to collateral issues. Secondly, he submitted that the evidence which the defence sought to adduce failed to meet the section 275 tests. He submitted that Dr Wylie's assessment of the complainer's mental condition did not purport to diagnose her at the date of the alleged offence and was therefore speculative. Separately, he submitted that Dr Wylie's report did not go far enough to be admitted in evidence under section 275(1)(a) as it did not demonstrate a predisposition to which the complainer was subject. Unless Dr Wylie were to assert that the complainer had a recognised medical condition which amounted to a predisposition to fantasise or to be untruthful, his evidence did not meet the standard required by that sub-section. In any event, even if, contrary to his submission, the tests in section 275(1)(a) and (b) were met, the probative value of evidence about the earlier sexual incidents was outweighed by the risk of prejudice to the proper administration of justice as the court would fail appropriately to protect the complainer's dignity and privacy if it allowed evidence delving into those past events. Thus, he submitted, the application failed the test in section 275(1)(c).

Discussion

[7] From the authorities to which I was referred, and the cases to which they in turn referred, I consider that the following propositions can be derived.

[8] First, when considering a section 275 application it is necessary at the outset to consider whether the evidence proposed to be adduced is admissible at common law. If the evidence is not admissible at common law, for example because it concerns a collateral issue, there is no question of section 275 rendering it admissible. That provision was designed to restrict evidence relating to a complainer's general character and past sexual history and not to remove common law prohibitions (Moir v HM Advocate [2007] HCJAC 20).

[9] Secondly, the general rule at common law that evidence of character is inadmissible as a collateral issue is based on grounds of relevancy and expediency. It is considered inexpedient to allow evidence of the existence of the collateral fact, because, while it is not wholly irrelevant, it has only an indirect bearing on the matter which is before the jury, and the leading of the evidence would both take up a great amount of court time and risk confusing the jury by distracting them from the issue to be tried (Walkers on Evidence (2^nd ed) paragraph 7.1.1; A v B (1895) 22 R 402, Lord President Robertson at 404). The court therefore has a judgement to make which may involve questions of degree.

[10] Thirdly, section 275(1) of the 1995 Act sets out three tests which are cumulative. See MM v HM Advocate 2004 SCCR 658, Lord MacFadyen at paragraphs [39] and [40]; Moir v HM Advocate [2007] HCJAC 20, Lord Johnston at paragraph [23]. The first test is that the evidence must relate only to a specific occurrence or occurrences of behaviour (sexual or otherwise) or to specific facts which demonstrate the complainer's character or any condition or predisposition to which the complainer is or has been subject. I consider below the meaning of predisposition in this context. The second test to be met is that the occurrence or occurrences are relevant to establishing whether the accused person is guilty of the offence with which he is charged. If those two tests are met the court must then consider the third test which is that the probative value of the evidence is significant and is likely to outweigh any risk of prejudice to the proper administration of justice from its being led.

[11] Section 275(2)(b) provides that in this context the proper administration of justice includes two considerations, namely (a) appropriate protection of a complainer's dignity and privacy and (b) ensuring that facts and circumstances of which a jury is made aware are relevant to the issue which is to be put before the jury and commensurate to the importance of that issue to the jury's verdict.

The first issue: the common law

[12] I turn first to the common law and the question whether the evidence is to be excluded as relating to a collateral issue. In relation to the two prior allegations of sexual abuse, at the school in the early 1990s and in Edinburgh in September 2002, I consider that it would be inexpedient for the parties to take up court time in dealing with, and for the jury to have to consider, detailed evidence and questioning as to whether or not on those prior occasions the complainer was or was not raped. Not only would the examination of that issue, which is not central to the defence, greatly expand the length of the trial but also it might distract the jury from the principal issues in the case. However, that does not mean that the incidents are irrelevant for all purposes and that all evidence relating to them should properly be excluded.

[13] It appears that the complainer's allegations of an incident or incidents at the school played a role in the diagnosis by Dr Hameed of borderline personality disorder in June 2005. I was referred to medical records which revealed that the complainer gave doctors an account of the alleged sexual abuse and the recent police investigation which had contributed to her anxiety in 2005. Mr Burns wished to adduce evidence of the accounts which the complainer gave to the police and to the doctors within a few days of each other in June 2005. He submitted that they amounted to radically different versions of the same incident and called into question her credibility. He explained that the defence had written to the alleged assailant from the school to see if he would give a statement but conceded that his instructing solicitors had not yet received a response.

[14] The sexual incident in Edinburgh in September 2002 did not feature in the diagnoses by Dr Ryan or Dr Hameed and there was no information that suggested that the complainer had informed them of it. But Dr Alan Wylie, whom the defence seek to call as an expert witness, refers in his report to that incident which occurred when she absented herself from hospital during an in-patient assessment which had come about after a passer-by had brought her to hospital in a distressed state and with suicidal ideation. The incident was recorded in her medical records in 2002. Dr Wylie's opinion that the complainer suffers from a borderline personality disorder is based on his examination of the medical records. He explains that an emotionally unstable personality disorder includes a marked tendency to act impulsively without consideration of the consequences, a lack of self-control and outbursts of anger which are easily precipitated when impulsive acts are criticised or thwarted by others. Among examples of such impulsive behaviour Dr Wylie cites the complainer's absenting herself from hospital in September 2002, alleging rape and involving the police before being returned to hospital.

[15] Dr Wylie opines in his report that suffering from alcohol dependency syndrome and meeting the criteria for a diagnosis of emotionally unstable personality disorder "do not independently or in combination necessarily render an individual incapable of being truthful in all matters and it would not, from the information available to [him] at the present time, in [his] opinion, render statements made by [the complainer] clearly untrue" (my emphasis). However he goes on to consider a variety of factors outwith the diagnostic labels of the syndrome and the disorder and concludes:

"Taking into account the nature of the allegations and the psychiatric issues in this case namely her suffering from an Alcohol Dependency Syndrome and a Borderline Personality Disorder, her previous impulsive behaviours, history of entering into abusive relationships, reported previous history of abuse and allegations of previously being the victim of such assaults, records of her "being evasive" and providing false information, together with her level of intoxication, whether or not this was compounded with regard to the degree of disinhibition experienced by her taking Diazepam or not, I am of opinion that while the allegations made by [the complainer] cannot be completely disregarded, a degree of caution should be exercised in accepting at face value the allegations made by [the complainer], the veracity of which could potentially be called into question."

[16] The Advocate Depute submitted that this conclusion did no more than tell the jury to do what any jury must do, namely consider a complainer's evidence with care. It did not, he submitted, make relevant evidence of earlier incidents which were properly to be treated as collateral issues. Nor did it meet the test for admission under section 275, a point which I will consider below. While I do not interpret Dr Wylie's conclusion as being as lame as the interpretation suggested by the Crown, the defence proposal to lead his evidence raises a question of the admissibility of such expert evidence on credibility and reliability at common law.

[17] It is not easy to identify in the authorities the boundaries of what is admissible and what is properly regarded as a collateral issue. This is in part because issues of expediency are involved as well as principles. I can express only a view that is sufficient for deciding this case as I have not been addressed on all of the relevant authorities. In my opinion it is competent at common law to lead the evidence which the defence seek to lead from Dr Wylie in relation to the complainer's psychiatric condition and its effect on her credibility and reliability generally. But it is not admissible to lead his evidence on the credibility and reliability of the particular allegations which she has made in this case.

[18] I interpret Dr Wylie as saying that the syndrome and the disorder are relevant matters in assessing credibility and reliability but that they are not of themselves determinative. He emphasises not so much the meeting of the criteria for those diagnoses but the particular manifestations of the complainer's mental problems, some of which fell within the criteria and others did not. In particular I note that he lists as criteria for the disorder, among other things, a tendency to act impulsively and a liability to become involved in intense and unstable relationships which may cause repeated emotional crisis. These manifestations of disorder as well as the other factors which he lists in his conclusion inform his judgement. He appears to me to be drawing on his professional experience of dealing with disordered patients to call into question the credibility and reliability of allegations of a sexual nature which the complainer might make. I am not satisfied however that it would be admissible to lead his views as to the credibility or reliability of the particular allegations which the complainer made in this case as distinct from questioning him on the manifestations of disorder and factors which would cause him as a professional psychiatrist to be reluctant to accept sexual allegations that she might make (see paragraphs 20 to 22 below).

[19] In reaching the view that (subject to the qualification that I have just expressed) Dr Wylie's evidence is competent at common law, I have had regard to the following authorities. Starting at a general level, Dickson on Evidence (3^rd ed) at paragraph 397 speaks of the competency of opinion evidence where the issue involves scientific or other knowledge such as the rules of a trade with which people of ordinary intelligence are not likely to be familiar. Walkers on Evidence (2^nd ed) at paragraphs 1.6.2 and 16.3.1 state a general rule that evidence of facts affecting the credibility of a witness himself or herself is generally inadmissible unless the facts are also relevant to the questions at issue. But expert evidence may be permitted where a matter of personality has been identified which is particularly relevant to proof or defence of an issue in the case and which is outwith the normal experience of the court.

[20] Thus in AJE v HM Advocate 2002 JC 215 the court accepted that expert evidence would have been admissible on the reliability of answers which children complainers gave at interview in the light of the allegedly flawed interviewing techniques which were employed. In Campbell v HM Advocate 2004 SCCR 220 the court held that it was competent to lead expert evidence of scientific tests to demonstrate the likelihood that several people would be able to recall a specific statement verbatim and in identical terms as this could have had a significant bearing on the credibility of police witnesses in that case. But in that case the court also held that it was not competent to ask questions on the reliability of the police officers' evidence about alleged statements by the accused as that was not a matter for expert opinion. See paragraphs [51] and [54].

[21] Turning more specifically to expert psychiatric or psychological evidence which has a bearing on the credibility or reliability of a witness, in HM Advocate v Grimmond 2001 SCCR 708 Lord Osborne upheld an objection taken by the defence against the Crown's seeking to lead the evidence of a clinical psychologist who had experience of child abuse and whose report concluded that the complainers' statements were credible and reliable. He founded on Walkers on Evidence (above) paragraph 1.6.2 on the basis that the evidence concerned a collateral issue, but he suggested that psychiatric evidence might be admissible if it were established that a witness suffered some form of mental illness which might affect the quality of his evidence. In Green v HM Advocate 1983 SCCR 42, in an appeal on the basis of fresh evidence, the court accepted that psychiatric evidence, that a complainer had a tendency to fantasise, had an inordinate interest in sex and was prone to make unwarranted accusations of rape, was relevant to the complainer's credibility and the central issue of consent.

[22] In McBrearty v HM Advocate 2004 SCCR 337 the court upheld the principle that the assessment of the truthfulness of a witness's evidence was a matter for the jury and not for expert evidence, but, significantly for present purposes, stated (at paragraph 49) that expert evidence of an objective medical condition that affected a complainer's ability to give truthful and reliable evidence was admissible. See also HM Advocate v A 1995 SLT 975.

[23] I conclude therefore that it would not be expedient or in the interests of justice to exclude all of the evidence of the earlier two incidents and the evidence of Dr Wylie on the ground that they concerned collateral issues. The extent to which evidence relating to those matters may be adduced or elicited will however be determined by applying the tests laid down in section 275 of the 1995 Act.

The second issue: section 275

[24] I turn then to the three cumulative tests that have to be met under section 275 for the evidence to be admitted.

[25] In relation to the first test, the issue in this case is not whether there is evidence of specific occurrences or facts in contrast to general and inspecific allegations. The issue is whether the evidence which the defence seek to lead demonstrates a predisposition within the meaning of section 275(1)(a). The Advocate Depute submitted that Dr Wylie's report did not vouch a predisposition in that sense. He referred me to Moir v HM Advocate [2007] HCJA 20 in which Lord Johnston (at paragraph 24) spoke of "predisposition" in the section as being "a recognised medical condition identified by relevant medical evidence, and not some vague notion of tendency or similar leanings in the conduct or actions of the complainer however based". Lord Johnston referred in this context to Mackay v HM Advocate 2004 SCCR 478. In that case the court held that evidence from schoolteachers that a complainer had a tendency to tell elaborate lies and could not be relied on did not fall within section 275(1)(a) as it was not concerned with specific occurrences or facts. But the court recognised the competency of expert evidence that a witness had a medical, psychiatric or psychological condition which could account for the witness giving an untrue account.