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High Court Refuses Appeal Against Decision To Review Evidence Admissibility In Sexual Offences Trial

The High Court of Justiciary has refused an appeal by a man charged with 19 sexual offences against six different complainers challenging a trial judge’s decision to review orders allowing certain evidence to be led by him. 

The trial judge revoked previous order which allowed certain evidence to be led. As a result, the appellant, JW, made the appeal under section 275(9) of the Criminal Procedure (Scotland) Act 1995. The charges included 10 charges of rape as well as charges of lewd, indecent, and libidinous practices. 

The appellant sought evidence to be elicited alleging that he had engaged in consensual sexual intercourse with four of the complainers over a 2–14-year time period. Three of the complainers denied the allegations, which were relevant to the issue of consent to the charges which they related. In addition, it demonstrated that the complainers were well disposed towards the appellant during the stated periods of the charges.

In June 2019, a preliminary hearing judge allowed applications under the 1995 Act to lead this evidence. The decision was made based on the grounds that it was relevant to the credibility and reliability of the complainers. At the time, the Crown did not oppose the motion. Later, the Crown submitted a motion to review the grant of the applications The Crown submitted that due to a recent court decision (CH v HM Advocate (2020)) the application ought to be disallowed. 

The trial judge took into consideration that section 275(9) permitted the reconsideration of the applications in circumstances where the law had been authoritatively restated. It was determined that in light of the new authorities the evidence would not now pass the statutory tests for relevance, specificity, and probative value.

Counsel for the appellant submitted that it was not appropriate to put a limitation upon the extent of the evidence to be allowed. It was argued that the fact or the case has not changed, neither had the law. Counsel argued that section 275 ought to be considered based on the standard rules of evidence and procedure. 

It was further submitted that there had been no fundamental change to the law since the application was first granted. It was accepted that the application would have been refused had it been considered for the first time at the date of the trial. However, the position was that  in advance of a trial an accused person was entitled to have certainty regarding the evidence which may or may not be permitted. 

In delivering the opinion of the court, Lady Dorrian in discussing section 275 stated: “As the court pointed out in Moir v HMA (2005), in the light of the evidence led, the trial judge will always have the final say as to the admission or exclusion of questioning or evidence under section 275, by limiting a grant already made (sec 275(9)) or by allowing a fresh application.”

She continued: “The submission that the power should be exercised only on a change of circumstances, such as a change in the underlying facts or law, does not gain support from the plain terms of the section, which not only allows the court to exercise the power ‘as it thinks fit’, but enables it to do so ‘notwithstanding the terms of its decision under subsection (1) above’ or any condition attached to the grant.”

She stated: “Whilst not a restatement of the law, there is no doubt that these cases, in particular the full bench decision of CH, have led, within the profession in particular, to an enhanced, if belated, appreciation of the full significance of the legislation and how it should operate, and on the part of the Crown to a more discriminating approach to whether applications should be opposed. This is in our view sufficient reason to justify the motion being made by the Crown, notwithstanding the earlier failure to oppose the application or appeal the decision.”

In relation to the evidence in this case she added: “The applications are in the vaguest of terms, and do not meet the statutory requirements. They do not meet the requirements of reflecting only specific occurrences of behaviour. To seek to use the material as the appellant wishes would require a consideration of specifics and details which would wholly derail the trial and take the jury’s focus from the true issues in the case.”

On this basis, the appeal was refused.

 

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