Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 111

HCA/2015/3428/XC

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

HER MAJESTY’S ADVOCATE

Appellant;

against

CJW

Respondent:

Appellant: McSporran AD; the Crown Agent

Respondent: Fyffe, Solicitor Advocate; Bruce Short, Dundee

18 December 2015

[1]        On 27 October 2015, at Dundee Sheriff Court, the respondent appeared at a First Diet charged with, amongst other things, coercing his then wife to engage in sexual activity and sexual intercourse with EA, contrary to section 4 of the Sexual Offences (Scotland) Act 2009.  The respondent lodged a defence statement, stating that the complainer had willingly engaged in sexual activity with EA.  He also lodged a Notice of Intention to attack the complainer’s character.  This prompted the sheriff to enquire whether an application under section 275 of the Criminal Procedure (Scotland) Act 1995 might be in contemplation.  She continued the First Diet to 3 November for the late lodging of such an application.  It was made available only on that date. 

[2]        The 275 application states that, during the marriage between the respondent and the complainer, the complainer had “affairs with a number of other men before beginning an affair with said [EA]”.  This evidence is said to be “highly relevant to the issue of the credibility” of the complainer in that it amounts to a “direct contradiction of the allegation”.  An inference could be drawn regarding the complainer’s credibility. 

[3]        On questioning from the sheriff, it became clear that it was the intention of the respondent to ask questions about two alleged affairs, other than that said to have taken place with EA, during the course of a 14 year marriage.  It was submitted that the court could draw an inference that the complainer had a “propensity” to have extra-marital affairs, which was directly relevant to the charge.  Evidence of other affairs would increase the probability that the respondent’s position in relation to the complainer’s affair with EA was correct. 

[4]        The sheriff was satisfied that evidence of other affairs:

“may establish the complainer’s predisposition to having extra-marital affairs which may support the respondent’s position on charge 1 and may also affect her credibility and reliability.  Such a predisposition is relevant to establishing whether the respondent is guilty under charge 1, or whether these are the actions of a man who is no longer able to tolerate the complainer’s extra-marital relations”. 

The sheriff did not consider that the questioning amounted to a fishing expedition or one which lacked specification once it became clear that the respondent proposed to ask specifically only about two other affairs.  The sheriff took the view that the evidence was of significant probative value.  There would be no unjustifiable invasion of the complainer’s privacy or affront to her dignity.  The sheriff did not consider that the evidence was collateral.  Although the affairs were removed in time from the charges, they were specific allegations and behaviour of a similar nature to that which the respondent alleged the complainer had engaged in with EA. 

[5]        The Crown appealed on the basis that the evidence of two previous affairs was inadmissible at common law, being collateral to the matters in issue.  It was suggested at the hearing that the question was one of the relevance of the evidence, rather than its being collateral.  Section 275 did not render admissible evidence which was not admissible at common law.  The application in relation to the affairs lacked specification and did not meet the statutory tests. 

[6]        In response the respondent maintained that, looking at the overall context of a marriage in a state of terminal decline, the evidence about the two prior affairs was competent at common law.  It established a pattern in the relationship, of which the complainer’s sexual infidelity played a part.  On further probing in relation to precisely what circumstances were intended to be proved, it was said that the extent of this involved alleged admissions by the complainer that she had had an affair with an unknown male in 2002 and another, again with an unknown male, in 2013.  There was no other evidence of any such affairs.

[7]        In CJM v HM Advocate (No. 2) 2013 SCCR 219, the court attempted to make it clear that sections 274 and 275 were not intended to permit evidence which was not admissible at common law.  The common law position is itself clear.  Evidence of either good or bad character is, in general, inadmissible because it is collateral to the issues as defined in the libel.  The rule exists for reasons of convenience and expediency (ibid paras [29] and [31]).  The issue, in relation to admissibility at common law, is not of whether a particular judge considers it to be fair or in the interests of justice to allow certain evidence to be led, but one which involves the application of the rules of evidence.  These exist for pragmatic reasons in connection with the administration of justice, including the protection of witnesses, notably complainers, who cannot be expected to anticipate and defend themselves against personal attack.  The allegation that a person has had two affairs, unrelated to the particular charge, over a period of 14 years, has no relevance to or bearing on the charge libelled; that being the alleged coercion of the complainer to have intercourse with a named individual over the period of a year.  The allegations which are made in the section 275 application are inspecific, with no information on the name of the third party, and very little in relation to time or place.  In these circumstances, it is evident that this evidence would not be permitted at common law and it cannot be permitted on an application under section 275 of the 1995 Act. 

[8]        Even if the evidence were admissible at common law, it would be struck at by section 274(1)(a) and (b).  It would then be a question of whether, as a matter of discretion, the court ought to admit it on the basis that the court is satisfied that the evidence will relate “only to a specific occurrence or occurrences of sexual” behaviour, that the occurrence or occurrences are relevant to the offence and that the probative value is significant and “likely to outweigh any risk of prejudice to the proper administration of justice”, including the appropriate protection of the complainer’s dignity and privacy.  In this case, the matters sought to be adduced in evidence would not fall to be admitted under the exceptions provided by section 275.  In particular, the evidence does not relate to specific occurrence or occurrences.  It does not have significant probative value.  Even if it did, that value would not outweigh the risk of prejudice to the proper administration of justice, including the dignity and privacy of the complainer.

[9]        The appeal is accordingly allowed.  The application, in so far as it relates to affairs other than with EA, is refused.