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Cite as: [2018] HCJAC 35, 2018 GWD 23-282, 2018 SCCR 189, [2018] ScotHC HCJAC_35, 2018 JC 182, 2020 SLT 634

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lady Paton

Lord Brodie

OPINION OF THE COURT

[2018] HCJAC 35

HCA/2018/000170/XC

delivered by LORD BRODIE

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

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Findlater; Faculty Services Limited

Respondent: Farquharson AD; Crown Agent

15 June 2018

Introduction

[1] This is an appeal in terms of section 74(1) of the Criminal Procedure (Scotland) Act

1995 (“the Act”) against the decision of the judge at a preliminary hearing on 28 March 2018

to refuse an application under section 275 of the Act.

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[2] The appellant has been indicted to stand trial in the High Court in respect of two

charges:

“(001) on [a date in July 2016] at [an address] you LL did assault [the complainer] lie

in a bed with her, kiss her on the neck, put your arms around her, touch her on the

vagina and on the breast, lift her dress, remove her underwear, restrain her,

penetrate her vagina with your penis and you did thus rape her to her injury:

CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009.

(002) on [same date as in charge 001] at [the same address as in charge 001] you LL

did sexually assault [the complainer] attempt to kiss her and kiss her: CONTRARY to

Section 1 of the Sexual Offences (Scotland) Act 2009.”

[3] At the preliminary hearing on 28 March 2018 the appellant pleaded not guilty to both

charges. His counsel confirmed that a defence statement and a special defence of consent

had been lodged. The defence statement contains the following information:

“a. The nature of the accused’s defence including any particular defences on

which the accused intends to rely:

The accused denies the acts of criminality alleged in the charges on the indictment.

The accused maintains that any sexual contact that occurred between him and the

complainer on the occasion libelled was with her consent and in the reasonable belief

that she was consenting.

b. Any matters of fact on which the accused takes issue with the prosecution

and the reason for doing so:

Any facts that may be inconsistent with the position of the accused as outlined

above.”

The special defence is in these terms:

“JONES for the accused LL indicates (sic) that the accused pleads not guilty to the

charges on the indictment and specially and without prejudice to said pleas intimates

that in respect of both charges on the indictment any sexual contact that occurred

between him and the complainer [name specified] on the occasion libelled was with

the consent of [the complainer] and in the reasonable belief that she was consenting”.

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The legislation

[4] Sections 274 and 275 of the Act provide, inter alia, as follows:

274 Restrictions on evidence relating to sexual offences

(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—

…

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

subject matter of the charge;

…

(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.

275 Exception to restrictions under section 274

(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 …

(b) that occurrence or those occurrences … 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—

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(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.

…

(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.

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…

The application

[5] At the preliminary hearing counsel for the appellant made an application under

section 275 of the Act in order that evidence might be admitted at trial that:

“the accused and the complainer knew each other because they had been friends

before the incident. Furthermore, following a night out in October 2015 they

engaged in consensual sexual intercourse within the address that the accused was

living in at the time”

[6] In the written application under section 275 it is stated that the complainer had

described the occasion of intercourse in October 2015 in two police statements. The

appellant had been asked about it in his police interview. The reasons why the evidence is

considered relevant are stated in the written application as being:

“The accused maintains that the complainer willingly came back to his flat after a

night out ... and that any sexual contact that took place within his flat was with her

consent. The fact that the accused and the complainer were friends who previously

engaged in consensual sexual activity of a similar nature within the accused’s

address, lends support to the accused’s defence and allows the jury to properly

consider the full extent of their relationship.”

[7] The preliminary hearing judge reports that she asked the appellant’s counsel why

consent given on a date in October 2015 to sexual intercourse at that time was relevant to

whether or not consent was given in July 2016 or to whether there was a reasonable belief

that consent had been given in July 2016. Counsel was unable to explain beyond arguing

that if evidence of what occurred in October 2015 was admitted the jury would have “the

full picture”. Counsel accepted that the indictment included an averment that the appellant

had restrained the complainer, in other words that it was alleged that a degree of force had

been used. However, counsel indicated that there was nothing that she wished to add

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beyond a submission that the previous occasion was, in itself, relevant to the appellant’s

reasonable belief.

[8] The Crown did not oppose the application when it was made at the preliminary

hearing. The preliminary hearing judge reports that the advocate depute submitted that the

previous occasion might be relevant. She noted that the locus was similar. She did not add

anything further to the submission made by counsel for the appellant.

[9] The preliminary hearing judge reports that she did not consider that any justification

had been put forward for leading the evidence specified in the written application. In

concluding that the requirements of section 275(1)(a) had not been met it appears that the

preliminary hearing judge overlooked the implicit comma in that section (HMA v DS (PC)

2007 SC (PC) 1). However, she also concluded that the evidence was prohibited by section

274 (1)(b) and therefore could only be led if the requirements of section 275 were met, which

they were not. The evidence was not relevant to establish whether the appellant was guilty

of the offence with which he had been charged. Consenting to intercourse on an occasion in

October 2015 shed no light on whether there was consent to intercourse or reasonable belief

that there was consent to intercourse in July 2016. Accordingly, in her opinion, the

requirements of section 275(1)(b) were not met. However, should she be wrong about that

she did not find the probative value of such evidence to be likely to outweigh any risk to the

proper administration of justice arising from it being admitted. At best its probative value

was weak. Its value did not outweigh the need to give appropriate protection to the

complainer’s dignity and privacy. The Crown was offering to prove that a degree of force

had been used. The judge had not been told of any circumstances which had led to a

reasonable, albeit mistaken, belief on the part of the appellant.

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Submissions to this court

The appellant

[10] Under reference to the terms of the Note of Appeal, Mr Findlater for the appellant

submitted that the preliminary hearing judge had erred in refusing the application. The

starting point was to consider whether evidence of a previous consensual sexual encounter

between the appellant and the complainer would be admissible as relevant at common law.

If it was not that was an end to the matter. What is meant by “relevant” was set out by the

Lord Justice Clerk (Carloway) in M v HM Advocate (No 2) 2013 SLT 380, 2013 SCCR 215 at

para 28. Evidence is relevant when it either bears directly on a fact in issue (i.e. the libel) or

does so indirectly because it relates to a fact which makes the fact in issue more or less

probable. Evidence of the previous sexual encounter between the appellant and the

complainer was relevant. It bore on the central issue of the appellant’s reasonable belief,

why he believed that “consent was in place” on the occasion which was the subject of the

charge, and it also bore on the complainer’s consent. Leading evidence of the previous

sexual encounter was prohibited by the terms of section 274 (1) (b) but it should be admitted

in that it met the criteria of section 275(1): it related to a specific occurrence of sexual

behaviour (section 275(1)(a)); it was relevant to whether the appellant was guilty of the

offence with which he had been charged (section 275(1) (b)); and its probative value, which

was significant, outweighed the extremely limited risk of prejudice to the proper

administration of justice (section 275(1)(c)). In relation to the final criterion Mr Findlater

noted that the complainer had, during her police interviews, volunteered the information

that she and the appellant had had a previous sexual encounter. Accordingly leading the

evidence would amount to only a limited infringement of her privacy.

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The respondent

[11] The advocate depute confirmed that the Crown opposed the appeal notwithstanding

the position it had taken at the preliminary hearing. The application should have been

opposed then. As would appear from the complainer’s statements, there were some

similarities in circumstances as between the encounter in October 2015 and the incident in

July 2016 which gave rise to the charges but, more significantly, there were dissimilarities.

There was no real ongoing friendship between the parties in July 2016. The complainer had

gone to the appellant’s flat only because, unexpectedly, she required somewhere to sleep

that night and it had been on the basis that she would be sleeping in one room and the

appellant in another.

[12] The advocate depute submitted that the preliminary hearing judge had been right to

refuse the application. The evidence that the appellant sought to adduce, that the parties

had had consensual sexual intercourse in October 2015, was simply irrelevant to what were

the issues in the forthcoming trial: whether the complainer had given her free agreement to

sexual intercourse with the appellant in July 2016 and whether the appellant then had had a

reasonable belief that the complainer had given such agreement.

Decision

[13] As Mr Findlater recognised, the starting point for a decision on whether the evidence

which the appellant wished to adduce is admissible, is the general principle that evidence is

only admissible if it is “relevant” (see M v HM Advocate (No 2), Lord Justice Clerk

(Carloway) at para [28]). The word appears on no less than five occasions in the portion of

section 275 of the Act which is quoted above but what we are concerned with, both generally

and when it comes to construction of the Act, is a very familiar, albeit on occasion somewhat

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elusive, concept of the common law. As Lord Carloway explained in M, evidence is relevant

when it either bears directly on a fact which is put in issue by the libel or does so indirectly

because it relates to a fact which makes a fact in issue more or less probable. Determination

of whether a fact is relevant depends very much upon its context and the degree of

connection between what is sought to be proved, or disproved, and the facts libelled. It is a

matter of applying logic and experience to the circumstances of the particular case.

However, logic and experience (at least in the sense of everyday experience, as opposed to

professional forensic experience) does not take one the whole distance. Again, as was

explained by Lord Carloway, the question is one of degree; as it was put by Lord President

Cooper in Bark v Scott 1954 SC 72 at 75: “the determining factor being whether the matters

… are, in a reasonable sense, pertinent and relevant and whether they have a reasonably

direct bearing on the subject under investigation.” Thus, not every fact that has some

conceivable connection, however distant, with the facts in issue is a relevant matter for

enquiry. To an extent weight, or as section 275 of the Act has it, probative value, goes to this

question of degree. Davidson in Evidence, at para 2.08 observes that a court will exclude

from consideration facts which are too remotely connected to the issue before it. He

illustrates that by quotation from the judgment of a New Zealand judge, Fisher J, in R v

Wilson [1991] 2 NZLR 707 at 710: “…lack of relevance can be used to exclude evidence not

because it has absolutely no bearing upon the likelihood or unlikelihood of a fact in issue

but because the connection is considered to be too remote.”

[14] In applying logic and experience to the circumstances of the particular case a court

which is determining the admissibility of an item of evidence will have regard to the

particular circumstances of the case, as they are alleged to be, and its own world-view, in

other words its understanding about the usual connections between things; what is often

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referred to as common sense. Turning to the present case and applying logic and experience

we cannot accept that the fact that the complainer had consensual sexual intercourse with

the appellant in October 2015 is relevant, in the sense discussed, to the facts in issue:

whether the complainer consented to having sexual intercourse with him in July 2016 or

whether the appellant reasonably believed that she was consenting. On this we completely

agree with the preliminary hearing judge. We simply do not see why the fact that there was

free agreement and reasonable belief as to that agreement on one occasion, makes it more or

less likely, as a matter of generality, that there was free agreement and reasonable belief as

to that agreement on another occasion many months later. What we would suppose it

would be intended to suggest to the jury is that if there was free agreement on the first

occasion it might be inferred that there was free agreement on the second occasion. But why

is that so? Very significantly, when counsel was asked to identify the basis for such an

inference, first before the preliminary hearing judge and then before this court, counsel was

unable to do so. That is not to say that there may never be cases where a previous act of

intercourse might not be relevant to the issue as to whether the complainer consented on a

subsequent occasion or to the issue of whether an accused reasonably believed that the

complainer was consenting. However, in such a case particular circumstances would have to

be averred to demonstrate what was said to be the connection between what we would see

as, prima facie, unrelated events. Here there are no such averments. This is not the case in

which to consider what is required by way of a defence statement in terms of section 70A of

the Act. We confine ourselves to the observation that the written application which has

been lodged in the present case is entirely uninformative as to the particulars of the

appellant’s position. A form of special defence of consent has been lodged but it is equally

guarded as to the appellant’s version of events. In intimating that “any sexual contact that

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occurred between him and the complainer” was with the consent of the complainer, the

appellant does not appear to concede that the parties did indeed have intercourse. He may

have been more candid in his police interview but as far as the court is concerned, it is left in

ignorance as to why it said, in the particular circumstances of this case, that the events of

October 2015 shed any pertinent light on the events of July 2016.

[15] The position taken in the appellant’s written application, in the Note of Appeal, and

in submissions on the appellant’s behalf, is that, irrespective of the particular circumstances,

it must always be the case that evidence of a previous consensual sexual encounter is

relevant to resolution of the issues that will arise in a trial on an indictment libelling a charge

of rape. We do not accept that position. We have to acknowledge however that there is

authority that might be seen as supporting it.

[16] In Moir v HM Advocate 2005 1 JC 102 at para [6] the Lord Justice Clerk (Gill) said this:

“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;

James Reid; Dickie v HM Advocate) 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 Advocate; Walker and Walker, para 7.7.2).”

At this point in his Opinion Lord Gill was only concerned to provide a brief sketch of the

historical background. He was to throw doubt on the intellectual respectability of the

common law rules in the immediately following paragraph. We shall return to that

paragraph but we would first make some observations on the authorities cited at para [6] of

Lord Gill’s opinion. One of these is Walker and Walker The Law of Evidence in Scotland, in its

second edition, published in 2000 (the text of the passage in question remains unchanged in

the fourth edition of 2015 - we have placed in parenthesis the citations which appear as

footnotes in the original):

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“7.7.2 At common law in cases of rape or similar assaults against 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 (Dickie v HMA (1897)

24 R (J) 82), that she associated with prostitutes, but not that her friends were

otherwise of bad character (Webster (1847) Ark 269) and that she had previously had

intercourse with the accused (McMillan (1847) Ark 209; Dickson Evidence (3rd edit)

para 7)”

While all the propositions in this passage reflect what is to be found in the nineteenth

century cases, neither McMillan nor the paragraph cited in Dickson vouch the proposition

that at common law it was admissible to lead evidence that the complainer (the “principal

witness” in nineteenth century usage) had previously had intercourse with the accused. For

that proposition the most recent support comes from what was said by the members of the

court in Dickie, an application for suspension of a sentence pronounced by the sheriff

following a conviction on indictment for indecent assault. The issue in Dickie was whether

the sheriff had been correct in refusing to admit evidence that the complainer had had carnal

connection with a man other than the accused, but the Lord Justice-Clerk (Macdonald) took

the opportunity to state the extent to which it was permissible to attack the character of a

woman who claims that she has been indecently attacked, while Lord Adam reviewed the

cases and Lord Low concurred with both his colleagues.

[17] The Lord Justice-Clerk begins his opinion in Dickie with a paragraph which to the

modern reader would appear to be entirely unexceptionable:

“The right to attack the character of a witness, and to bring evidence in support of

the attack, is one which has always been carefully kept within very limited bounds.

There are two reasons why this should be so. First, it is the duty of a Court to protect

witnesses from attacks which they cannot be prepared to meet, and which they can

claim no right to meet by leading evidence to rebut them; and, second, such

enquiries, if entered upon, would necessarily interfere with the conduct of judicial

proceedings by introducing collateral issues, which would be most inconvenient and

embarrassing, and might often protract proceedings and obscure the true issue

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which was being tried. Accordingly, in the ordinary case, while it is competent to

ask a witness whether he has been convicted of a crime, the fact cannot be vouched

except by an extract conviction, it is not competent to enter upon an enquiry into his

general antecedents, and to try to prove that he has committed a crime. It is only

competent to inquire into matters directly connected with the subject of the trial then

proceeding.”

His next paragraph is more problematic:

“In the case of injuries to women, some specialties have been introduced for obvious

reasons. Where a woman maintains that she has been indecently attacked, it is

competent, upon notice being given, to attack her character for chastity, and to put

questions to her involving the accusation of unchastity. And in such cases it has

been held competent for the accused to prove that the witness voluntarily yielded to

his embraces a short time before the alleged criminal attack. That such proof should

be allowed is only consistent with the clearest grounds of justice, for, in considering

the question whether an attempt at intercourse be criminal, and to what extent

criminal, it is plainly a relevant matter of enquiry on what terms the parties were

immediately before the time of the alleged crime. Further, it seems a relevant subject

of enquiry whether the woman was at the time a person of reputed bad moral

character, as bearing upon her credibility when alleging that she has been subjected

to criminal violence by one desiring to have intercourse with her. Such evidence

may seriously affect the inferences to be drawn from her conduct at the time.”

Although no authority was cited at the preliminary hearing in this case, counsel who then

appeared at the preliminary hearing would be entitled to point to this paragraph in Dickie

and say that her submission that by leading evidence of the previous sexual encounter

between the appellant and the complainer the jury would be provided with “the full

picture”, was no more than a reflection of Lord Justice Clerk Macdonald’s view that it was

plainly a relevant matter of enquiry to determine “on what terms the parties were

immediately before the time of the alleged crime.”

[18] However, while the Lord Justice Clerk goes on to affirm (at 84) that “it is competent

to prove a general bad repute at the time of the offence, or to prove that the woman said to

have been attacked had yielded her person recently to the same man” he does not explain

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why. In context “general bad repute” means a local reputation for being unchaste. To a

modern eye the supposed relevance of that (which is vouched by a number of the nineteenth

century cases) is especially puzzling, particularly when it is understood that reputation

means just that: what people think about the woman in question, and one turns to

Lord Adam’s opinion to find it beginning (at 84):

“There is no doubt that it is not a relevant defence to a charge of rape that the person

alleged to be injured was unchaste, however bad her character may be in that

respect. Neither, as I understand, is it competent to lead evidence to impeach her

general character as regards credibility. But cases such as this are exceptional in this

respect, that although unchastity is not a relevant defence to the charge, yet

nevertheless it is competent, upon due notice given to the prosecutor, to lead

evidence to impeach the chastity of the person alleged to be injured”.

On the relevance of previous sexual intercourse with the accused Lord Adam provides this

explanation (at 87):

“In that case, however, it appears to me that the evidence is relevant to the question

of consent or non-consent, because it is more or less probable that a woman who had

been already intimate with a man would not offer a very strenuous resistance to his

having again connection with her, while there is no presumption or probability that a

woman who may have allowed a particular man to have connection with her, would

allow another man, it may be a perfect stranger, to have connection with her.”

[19] Lord Adam’s reference to presumption or probability and Lord Justice Clerk

Macdonald’s reference to the inferences that the jury might draw from an account of the

complainer’s conduct are reminders that although their discussions are about the

competence of leading evidence of a particular sort, what is in issue are not legal rules in the

sense of points of jurisprudential principle but, rather, the practical utility of items of

information in determining discrete matters of fact. What is thought to be useful in

determining facts will depend on the world-view of the fact-finder and, as part of that

world-view, his expectation of how other people generally behave. Lord Adam thought that

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evidence of previous sexual relations between the parties was useful information when

determining whether the woman consented on a subsequent occasion because in his view it

is more or less probable that a woman who had been already intimate with a man would not

offer a very strenuous resistance to his having again connection with her. That may well

reflect a general late nineteenth century view (or at least a late nineteenth century judge’s

view) about how people might be expected to behave. We do not see it as a reliable guide as

to how people might be expected to behave in the early twenty-first century.

Understandings have changed. This is the point which Lord Gill makes in Moir, in the

paragraph immediately following his summary of the common law position:

“[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 Advocate, Lord Justice Clerk Macdonald, p 84; R v Seaboyer

[(1991) 83 DLR (4th) 193], McLachlin J, pp 258, 259). In recent years the view has

emerged that these justifications reflect ‘twin myths’ (cf R v Seaboyer). 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.”

[20] Another reason why the authorities cited in Walker and Walker at para 7.7.2 are

unreliable guides as to what is relevant evidence where the charge is one of rape relates to

modern developments in the law of rape. The law is now on a statutory footing, the central

issue under the Sexual Offences (Scotland) Act 2009 being whether the complainer had

given free agreement to the sexual conduct libelled. The common law had also been

redefined in Lord Advocate’s Reference No 1 of 2001 2002 SLT 466. Prior to that decision the

crime of rape was constituted by the carnal knowledge of a female by a male person

obtained by overcoming her will; the requisite carnal knowledge had to be achieved by

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force: Gordon, The Criminal Law of Scotland (3rd edit., 2001) para 33.1. In the ordinary case, it

was not sufficient that the woman did not consent to intercourse; it had to be shown that the

woman’s resistance had been overcome by violence such that the reasonable woman would

not have been able to resist: Gordon supra para 33.09. According to Hume (Commentaries

vol I p302) “resistance must, therefore, be continued to the last; so that it is by main force

only and terror that the violation is accomplished.” This consideration is a probable

explanation of why Lord Adam justified the relevance of a previous act or acts of intercourse

as being that it was more or less probable that a woman who had been already intimate with

a man would not offer “a very strenuous resistance to his having again connection with her”.

However, whether or not we are correct in our supposition as to why Lord Adam chose the

wording that he did, it does not follow that what might be relevant to raise a doubt as to

whether a complainer had in fact continued resistance “to the last” is relevant to the very

different question posed by the modern law either at common law or in terms of the Sexual

Offences (Scotland) Act 2009.

[21] Our initial view, that evidence of a consensual encounter in October 2015, was

irrelevant to determining what may have happened in July 2016 was reinforced as we

listened to the advocate depute’s submissions. As can be seen from the opening paragraph

of his opinion in Dickie, Lord Justice Clerk Macdonald was very much alive to the

undesirability of digressions into collateral issues. Where there is such a digression, rather

than concentrating on the event which is the subject of the charge on the indictment, judge

and jury are led into a consideration of another event or events. It may be that

Lord Macdonald considered a previous instance of sexual intercourse as something fairly

straightforward, requiring little by way of elaboration, readily capable of being admitted or

denied and therefore unlikely to “protract proceedings and obscure the true issue which was

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being tried”. If so, we cannot agree. A sexual encounter is, or may be, quite a complex

social interaction, the occurrence and quality of which is potentially dependent on a large

number of factors. In the present case we would understand that it is anticipated that the

complainer would accept that she had consensual intercourse with the appellant some nine

months prior to being subjected to what she alleges was an act of non-consensual

intercourse in July 2016. The occurrence of the earlier act is therefore not likely to be

disputed. However, we understood from the advocate depute that it is the Crown’s position

that the surrounding circumstances of the two events were very different and that were the

Crown to be faced with having to counter the effect of evidence of the earlier encounter it

would be obliged to explore these differences. We accept that. The result of such a process

would be just what Lord Justice Clerk Macdonald would, in the ordinary case, wish to

avoid, a prolongation of proceedings and an obscuring of the real issues. Rather than

concentrating on the issues of free agreement and reasonable belief on the occasion specified

in the indictment when the complainer alleges she did not freely agree, the jury would be

diverted into a consideration of the similarities and dissimilarities as between that occasion

and another occasion which is not specified in the indictment when the complainer accepts

that she did freely agree.

[22] On the view we take of the relevance of the evidence which the appellant proposes

to lead it is strictly unnecessary to consider the terms of section 275 but were we to do so,

while we would be satisfied that the evidence would relate only to a specific occurrence and

therefore meet the section 275(1)(a) criterion, we could not be satisfied that proof of this

occurrence was relevant to establishing whether the appellant was guilty of the offence with

which he is charged. The section 275(1)(b) criterion would not therefore be met. Were the

view to be taken that in the context of section 275(1) “relevant” should be given an

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expansive definition so as to include anything that might conceivably be seen to be relevant,

then we would conclude that the probative value of the evidence was slight in relation to the

central issues: the free agreement of the complainer and the reasonable belief of the

appellant having regard to the steps he took to ascertain whether there was consent.

Moreover, we would see the proposal to lead this evidence as an inappropriate intrusion

into the complainer’s dignity and privacy. We would therefore conclude that the section

275(1)(c) criterion would not be met

[23] The appeal is refused.