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MP AGAINST HER MAJESTY'S ADVOCATE [2021] ScotHC HCJAC_48 (30 November 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_48.html
Cite as:
[2021] ScotHC HCJAC_48,
2022 SLT 194,
[2021] HCJAC 48,
2022 SCCR 1,
2021 GWD 40-527
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 48
HCA/2020/000301/XC
Lord Justice Clerk
Lord Turnbull
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
Appeal under Section 74
by
MP
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Duff; Paterson Bell
Respondent: A Prentice, QC, AD; Crown Agent
9 February 2021
[1]
The appellant has been charged with three offences against the complainer, of which
charge 3 is a charge of rape on 23 December 2006. A special defence of consent has been
lodged. A child was born as a result of this encounter.
[2]
The appeal relates to the decision at a preliminary hearing to refuse as irrelevant
paragraph 1(7) of the appellant's section 275 application, and to refuse paragraphs 1(44) to
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1(48) as irrelevant and collateral. Paragraphs 1(1) to 1(6), and 1(9) to 1(11) of the application
were allowed, as was paragraph 1(8) to the extent only that as a result of sexual intercourse
between the complainer and appellant on the date of the event libelled, a child was born.
Paragraphs 1(12) to (43) were also refused, as irrelevant and collateral, but are not the subject
of appeal.
[3]
Paragraphs 1(1) to (6) related to the circumstances in which the appellant went to the
complainer's home, a discussion there between them about contraception prior to their
having sexual intercourse and about their undressing each other before the sexual encounter
proceeded. The evidence sought to be elicited in terms of paragraph 1(7) was in the
following terms:
"after sexual intercourse, he searched for his clothes in the dark and she was
laughing when he could not find his socks."
It was asserted that paragraphs 1(1) to (7), if heard by the jury, would allow the jury to
consider whether they can be satisfied beyond a reasonable doubt that the complainer did
not consent to the sexual activity that night.
[4]
The preliminary hearing judge considered that paragraphs 1(1) to (6) could properly
be allowed, as being relevant to the defence of consent, but refused paragraph 1(7), on the
basis that what happened after intercourse was irrelevant to the question of consent at the
time of intercourse.
[5]
As the preliminary hearing judge explains in her report, paragraphs 1(12) to (48) of
the application dealt with evidence about events after the birth of the child, in a high degree
of detail, including issues of maintenance; contact; agreement about, and cessation of, the
latter, and litigation thereanent; the appellant's marriage and birth of a child thereof; the
further cessation of contact and resultant litigation. The preliminary hearing judge
3
considered that these paragraphs raised material which was irrelevant and collateral and
refused them. Paragraphs 1(44) to (48) were as follows:
"(44) on 9 January 2019, a motion was enrolled to recall the sist and intimated to
the complainer's solicitor.
(45)
on 12 January 2019, the complainer tried to contact the applicant by telephone
repeatedly using different phone numbers to call him.
(46)
on 13 January 2019, the complainer contacted the police.
(47)
on 14 January 2019, the complainer provided a statement to the police in
which she accused the applicant of rape.
(48)
the complainer did not make that allegation at any point during the court
action relating to contact or during the involvement of solicitors in relation to
contact."
[6]
All of the paragraphs in the application were said to be relevant to the same issue at
trial, namely "the credibility and reliability of the complainer in relation to her allegation of
rape against the applicant". The sole inference to be drawn from all paragraphs was said to
be that the complainer was not truthful in her allegation of rape.
[7]
The complainer did not make her allegation of rape to the police until 13 January
2019, shortly after intimation of a motion to recall a sist in the contact action. The
application asserted that allowing the jury to hear evidence about the history of contact
between the complainer and appellant over the years in relation to the child would allow
them to consider whether they found the complainer "credible and reliable in her allegation
of rape when it came to be made in these circumstances."
[8]
Counsel advised the preliminary hearing judge that she did not have any evidential
basis for the assertion that the complainer made a false allegation of rape because she was
angry about the motion to recall the sist in the civil action, but wished to lead the evidence
showing the dates involved and ask the complainer why she did not make the allegation
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until the week when the motion was enrolled. The preliminary hearing judge considered
that the detail asserted in paragraphs 1(12) to (48) indicated that the defence intended to lead
evidence about the course of the relationship between the appellant and his child and the
complainer's attitude thereto, which were irrelevant and collateral matters which would be
apt to distract from the question before the court of consent at the date of the libel. In her
report, recognising that the defence would be entitled to ask the complainer when she made
the complaint of rape, the preliminary hearing judge now considers that she should have
refused paragraph 1(47) as unnecessary rather than as irrelevant.
Submissions for the appellant
[9]
In support of the appeal it was maintained that none of the evidence referred to in
paragraphs 1(44) to (48) engaged section 274, and regarding these the application ought to
have been refused as unnecessary. The evidence to be elicited related to the circumstances
in which the complainer reported the allegation. Such evidence was admissible at common
law and would require a direction under section 288DA(2) in due course. The evidence
would enable the jury to hear not only that there was a delay in making the allegation but
also the circumstances leading up to and in which the allegation came to be made to the
police. A section 275 application was not required and the application should have been
refused as unnecessary.
[10]
Paragraph 1(7) was relevant at common law and bore on the central issue of consent.
It was relevant to show that immediately after the sexual intercourse which was the subject
of the charge, the complainer was in a jocular good mood. A jury could be invited
reasonably to infer that this was indicative of her state of mind during the immediately
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preceding sexual intercourse. This fell within the exception in section 274(1)(c). The
preliminary hearing judge ought to have refused the paragraph as unnecessary.
Submissions for the Crown
[11]
The Crown challenged the competency of the appeal, on the basis that the appellant
did not seek to overturn the decisions made but to adjust the reasons given in the court
minute. It was not argued that the preliminary hearing judge had been wrong to refuse the
application. This was not an appeal against a "decision... at a preliminary hearing"
(section 74) and should be refused on that basis. In any event, the preliminary hearing judge
was entitled to take the view that the evidence sought to be led was inadmissible at common
law and to refuse the paragraphs.
[12]
The principal issue for the jury in this case, is whether the complainer consented.
Whether she laughed (which she denies), and if so, why she did and what that may have
meant, are not immediately verifiable issues, and investigation of them would risk
distracting a jury from the main issue. It is well documented that individuals may react to
trauma in various and different ways. If this paragraph were allowed the Crown may seek
to lead expert evidence to rebut the inference the appellant will invite a jury to draw and
explain the wide spectrum of responses to trauma.
[13]
The appellant would be perfectly entitled to lead evidence of the fact that there was a
12 year delay in the making of the allegation, and to ask the complainer why that was, but
would not be allowed to speculate about the reasons for that. Apart from paragraph 1(47),
however, the history between the parties was complex, detailed and likely to distract a jury
from the issue under their consideration.
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Analysis and decision
[14]
The arguments advanced in this appeal do not criticise the decision to refuse the
application, but question the reasons given. It was submitted that the preliminary hearing
judged erred in refusing paragraphs 1(7) and (44) to (48) as she did, and that she should
have refused them as "being unnecessary". This somewhat bizarre basis for appeal reflects
the equally extraordinary terms of the section 274 application itself which had averred that
paragraphs 21, 24, 29, 36, 40 and 41 were considered to be unnecessary but were included
"for context"; and that paragraphs 28 and 44 were considered unnecessary, and capable of
agreement but were also included "for context". It is now contended that paragraphs 45-48
were also unnecessary, although that was not the basis of the original application.
[15]
The preliminary hearing judge in her report advises the court that the extraordinary
approach taken in this application, and appeal, of setting out a whole series of paragraphs
and then asserting that an application in respect of them is not necessary, is increasingly
being taken in section 275 applications. It seems that a practice has developed to include
proposed questions or evidence for which counsel maintains an application is unnecessary
but upon which the court is nevertheless asked to make a ruling. In effect, in seeking to have
the court refuse the paragraphs in an application as "unnecessary", applicants are seeking to
convert a ruling under section 275 into a general ruling on admissibility for which the
procedure was not designed.
[16]
Where counsel consider that an application to the court is not necessary, then the
making of an application stating this is absurd. If counsel consider that such an application
is not necessary then they should not be making an application, taking up valuable court
time on issues which are redundant. To the extent that an application under section 275
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asserts on its face that it is unnecessary, or where counsel so submits, it is per se an
incompetent application and should be refused on that ground.
[17]
The heart of the problem here is that the applicant is seeking to introduce evidence
which has no relevance at all to the proceedings, for example paragraphs 1(44) to (46), and
(47), and to create relevance by means of impermissible speculation. That this is what the
present application seeks to do can be seen in the submission that this evidence "would
enable the jury to hear not only that there was a delay in making the allegation but also the
circumstances leading up to and in which the allegation came to be made to the police".
There is no link between the two separate facts referred to in this submission the making of
the allegation and the family history - save in the imagination of counsel. There is no
evidential basis for suggesting that the history in relation to the child has anything to do
with the making of the allegation. There is no evidence to demonstrate a link, and the whole
purpose of including this material is to enable counsel to go on a fishing expedition at trial.
[18]
The preliminary hearing judge was entirely correct to refuse these applications, since
the underlying basis upon which the evidence was said to be relevant was wholly without
foundation.
[19]
So far as paragraph 1(7) is concerned, it is clear from the paragraph that the
underlying purpose of seeking to introduce this evidence is to suggest that if the complainer
appeared "jocular" at the time, she must have consented to sex immediately before that, or
at least that the jury should consider that this creates a reasonable doubt as to the matter.
The issue of consent requires to be examined at the time of the act in question, not
subsequent to it. Moreover, as the Advocate Depute submitted it is well understood that
individuals may react to trauma in various and different ways. Again the preliminary judge
8
was correct to refuse this paragraph as an example of detail of something said to have
happened which would not assist the jury in their task, and thus irrelevant.
[20]
The decision of a court that an application or a paragraph within an application
made in good faith is, after due and appropriate consideration of submissions concerning
the nature of the evidence and issues expected to arise at trial, not required has often been
expressed, as a sort of convenient shorthand, in terms suggesting that the application is
unnecessary. In the majority of cases what is meant is that the evidence in question does not
fall foul of any of the prohibitions in section 274. In the interests of clarity of decision-
making, this wording, or similar according to the circumstances might be preferable to the
vague term "unnecessary". A section 275 application therefore has a distinct and precise
statutory purpose, and the decision should reflect that.
