• Specialist Criminal lawyers
  • Serious Crime
  • Flighting your corner
  • Speak directly to a specialist Criminal Lawyer 24/7
  • Kilcoyne and Company
  • Road Traffic


Man Refused Appeal At The High Court Against Trial Judge’s Decision To Review Evidence Of Admissibility In Sexual Offences Trial

The appellant, JW, was charged with 19 sexual offences against six different complainers. The appellant challenged the trial judge’s decision to review orders to permit certain evidence to be led by him. 

The appeal was made under section 275(9) of the Criminal Procedure (Scotland) Act 1995. At trial the judge revoked previous orders which allowed certain evidence to be led. The charges against him included 10 charged of rape, charges of lewd, indecent, and libidinous practices and behaviour that took place between 1976-1997. 

The appellant sought to lead evidence alleging that he had consensual sexual intercourse with for over the complainers over a 2–14-year time period. However, this was denied by three of the complainers. A preliminary hearing took place in June 2019 and the judge allowed applications under the 1995 Act to lead this evidence on the basis that it was relevant in terms of the reliability and credibility of the complainers. This was not opposed by the Crown at the time. A motion was submitted by the Crown at a later date to review the grant of the applications on the first day of the trial. The Crown submitted that the applications should be disallowed due to the decisions made in recent case law namely, CH v HM Advocate (2020). 

At trial the judge determined that the terms of section 275(9) allowed for reconsideration in terms of the circumstances of the application as the law had been restated. It was considered that averments were irrelevant to the complainers’ credibility and the evidence would not meet the threshold of the statutory tests for relevance, specificity and probative value. 

It was submitted on behalf of the appellant that it was inappropriate to limit the extent of the evidence. It was argued that the facts of the case and the law had not changed. Further to this, section 275 has to be considered in the context of the normal rules of evidence and procedure, alongside the availability of an unlimited right of appeal. It was also submitted that there had not been a fundamental change to the law since the original application was granted in 2019. It was accepted that the application would have been refused if it had been considered for the first time at the date of the trial. However, an accused person was entitled to a level of certainty in advance of the trial date in regards to evidence which may and may not be admissible.

Lady Dorrian in delivering the opinion of the court 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.”

Further to this she said: “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 respect of this case she continued: “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.”

As a result, the appeal was refused.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

defence lawyers legal aid
John Kilcoyne and company specialist criminal lawyers undertake both legal aid and private work. For initial diagnostic interview with legal aid you will need a benefit letter, bank statement or a wage slip for legal aid purposes.
crime specialists
  • police stations
  • Police Station Representation
    Criminal Law Testimonials
  • To make an appointment with a specialist criminal lawyer.
    Call Us on 0141 423 1400
    or click below
    book appoinment

  • Follow Us



    facebook twitter google plus

Latest Posts