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URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_45.html
Cite as: [2020] HCJAC 45, [2020] ScotHC HCJAC_45, 2020 GWD 37-479, 2021 SLT 1443, 2021 JC 83

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Menzies

Lord Turnbull

[2020] HCJAC 45

HCA/2020/000269/XC

STATEMENT OF REASONS

Issued by LADY DORRIAN, the LORD JUSTICE CLERK

In an appeal under Section 74 of the Criminal Procedure (Scotland) Act 1995

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Ogg (sol adv); J C Hughes, Solicitors, Rutherglen

Respondent: Farquharson, QC, AD; Crown Agent

14 October 2020

Introduction

[1] The appellant is charged inter alia with a series of sexual offences against A between

December 2009 and 2014. These include charges of lewd and libidinous conduct and three

charges of rape. In respect of these charges, the appellant has lodged a special defence of

incrimination of B, who was separately indicted for, and convicted of, sexual offences

against A. No section 275 application was lodged by the defence. The Crown lodged a

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minute objecting to the leading of any evidence on the incrimination, including cross-

examination of A, as this, relating to “sexual behaviour not forming part of the subject

matter of the charge” was prohibited by section 274(1) of the Criminal Procedure (Scotland)

Act 1995. The defence argued that the conduct did form part of the subject matter of the

charge and so the evidence would be competent without an application. The preliminary

hearing judge rejected that argument, which is repeated in this appeal. The Crown oppose

the appeal, repeating the arguments which were successful at first instance and relying on

the opinion of the preliminary hearing judge.

[2] The charges against the incriminee overlapped in time, and in respect of one locus,

the charges against the appellant. It was submitted that the evidence sought to be led in

furtherance of the incrimination was “that the complainer engaged in behaviour forming

part of the subject matter of the charge”, namely the sexual acts specified in the charges,

which if they occurred, were committed not by the accused but by another person. It was

not intended to go beyond the boundaries of the charge. The evidence thus relates to

specific incidents. It was admissible at common law. It related to whether the offence was

committed and who committed it. The evidential basis for the questioning was specified as

consisting of (i) an undated statement said to be made to the appellant by A that the

incriminee had raped her; (ii) a police statement dated 19 February stating that the

incriminee was abusing her; (iii) the overlap between the charges against A and those

against the incriminee; and (iv) evidence from family members that the incriminee stayed

over on occasions in the family home. The evidence was said to be relevant to whether the

offences occurred and who committed them. Since it was part of the subject matter of the

charge no application was required. Having regard to the policy of the legislation, and the

exception for matters forming part of the charge, no application was required where the

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evidence related to an incrimination. Further details of the submissions will be apparent

from the decision below.

Analysis and decision

[3] We reject the submission that a section 275 application would not be needed in the

circumstances of the present case. We would observe as a preliminary that the overlap in

the charges is not significant. Three of the offences committed by the incriminee took place

at the one address, specified only in charge 4 against the appellant, which also avers conduct

at another address. The fourth took place in entirely different circumstances, outside. The

overlap in time is only with charge 4. Of the four charges against the incriminee, only

charge one relates to conduct on more than one occasion. The charges against the appellant

all specify various occasions over lengthy periods of t ime. It was submitted that evidence in

respect of an incrimination was not, as a generality, collateral. That may be so in cases,

where there is a clear evidential basis for the incrimination. The evidence referred to in the

submissions for the appellan t may well be capable of suggesting that the incriminee abused

A. But that is not the question in these proceedings, taking proper account of the

incrimination. The fact that the incriminee abused A is not in doubt, standing his

conviction. It does not follow that the incriminee was the only person to abuse her and that

the appellant did not do so. The statements made by A suggest the contrary.

[4] Turning to the main substance of the argument, the subject matter of the charge is

criminal behaviour alleged to have been committed by the accused. Sexual behaviour

involving someone other than the accused is not sexual behaviour forming part of the

subject matter of the charge. The Preliminary hearing judge was therefore correct to

recognise:

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“… … the principle that any charge of sexual offending involves the libelling by the

Crown of two critical facts for proof at trial, namely: (i) the occurrence of the

unlawful sexual act in question; and (ii) the identity of the person who made the

complainer subject to that unlawful act. The standard forms of charge in terms of

section 64 of the 1995 Act also require a degree of specification of the time and place

of the alleged offence. A charge of sexual assault does not, therefore, exist in the

abstract. It relates to a particular act, at a particular time and place, by a particular

person. That suggests that the proper construction of the words “the subject matter

of the charge” in section 274(1)(b) encompasses not only the particular sexual act at a

specified time and place but also the identity of its alleged perpetrator.”

[5] If the defence is that these specific acts, on these specific dates, and at these specific

loci, were committed not by him but by an incriminee, then that is evidence which is not part

of the subject matter of the charge.

[6] The matter is in our view clear on the simple wording of the section. If there were

any doubt, however, it would be dispelled by examining the legislative history of the

provisions, as the preliminary hearing judge noted at paragraph 16 of his report, and as the

Advocate Depute submitted. The predecessor legislation contained the prohibition that “the

court shall not admit, or allow questioning designed to elicit, evidence which shows or tends

to show that the complainer … (c) has at any time engaged with any person in sexual

behaviour not forming part of the subject matter of the charge” (section 274, and formerly in

section 141A of the Criminal Procedure (Scotland) Act 1975). This was subject to the

exceptions, which included that the court could permit such evidence when “the

questioning or evidence referred to in paragraph (c)” was “relevant to the defence of

incrimination”. Accordingly, even at that stage, it was recognised that evidence of the kind

sought to be led in the present case was evidence which came within the terms of the

prohibition, and could only be allowed if the court could be satisfied that the evidence was

relevant to the defence of incrimination. We do not accept the submission that the removal

of the words “with any person” supports the defence argument. The revisions to the

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legislation which resulted in the current provisions were designed to strengthen rather than

weaken their effect.

[7] The context in which the issue arises, and the practical effect of the appellant’s

argument must also be considered. If correct, the defence would be entitled to put to a

complainer any questions about sexual activity with the incriminee so long as these were

within the boundaries of the acts asserted in the charge. However, as can be seen by the

short description of the differences between those acts committed by the incriminee and

those said to have been committed by the accused, it would in reality be artificial to restrict

the questioning in this way. In fairness to the witness, the incriminee and the wider public

interest, the Crown would not unnaturally wish to explore these differences, thus expanding

the scope of the subject matter to include clearly collateral matters, even if the original

questions put by the defence did not have such a character, which will often be open to

question. All of this would only be apparent at trial, with the spectre of lengthy objections

having to be determined at that stage, and late applications having to be made by the Crown

during the trial proceedings. Leaving aside the issue of admissibility, with which we are not

primarily concerned, the resulting free-for–all would result in chaos, and risk seriously

undermining the purpose of the legislation. The only reasonable and practical way to

address the issues which might arise is to construe the legislation as we have done, requiring

a section 275 application to be made. One can conceive of circumstances where such an

application might be granted; but the overall matter would remain under the control of the

court. The result is not that the appellant is deprived of leading the evidence or asking the

questions, but simply that he would have to satisfy the court that the tests appropriate to the

granting of a section 275 application have been met. Without such control there would be a

significant risk of the jury being distracted by collateral matters or of a complainer’s privacy

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and dignity being unduly intruded upon. It is entirely within keeping with the scheme of

the legislation that the type of questioning envisaged should be allowed only if it can be

shown to serve a relevant and legitimate purpose.