Her Majesty’s Advocate v. J.G. [2019] HCJ 71

Application under Section 275 of the Criminal Procedure (Scotland) Act 1995:- The accused was indicted to the High Court in relation to 5 charges including three charges of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The complainer in each of the charges was the accused’s former partner, KL. On 5 September 2019, at a continued preliminary hearing at Glasgow High Court, submissions were made in relation to an application under section 275 of the Criminal Procedure (Scotland) Act 1995 which sought to admit certain evidence including of consensual sado-masochistic sexual conduct engaged in by the complainer with other individuals over a number of years, including a male DB. The court considered the background of the case and, in particular, the procedural background and the steps taken on behalf of the accused to make certain investigations to enable a section 275 application to be drafted and lodged. It was noted by the continued preliminary hearing judge that the application came before the court six months after the Preliminary Hearing and two weeks before the second trial diet and failed to adhere to the time limits referred to in section 275B of the 1995 Act which requires that such an application should be lodged 7 days prior to the preliminary hearing unless special cause is shown. Here the court considered all of the circumstances of the late application and made a number of criticisms of both the defence and the Crown in relation to their respective positions. It was submitted, on behalf of both the Crown and the defence, that in the particular circumstances, and given the further enquiries that had been carried out, special cause had been shown for the merits of the application to be considered. The court with some reluctance and erring on the side of caution concluded that special cause had been shown and went on to consider the merits of the application. The court provided a full exposition of the law as it applies to such applications. The court reiterated that it is necessary for the court to determine first of all whether the evidence proposed to be adduced is admissible at common law and, only if it does meet the test for relevancy, go on to consider the cumulative test set out in section 275(1). It was submitted on behalf of the accused that the evidence sought to be admitted was relevant and should be allowed. Aspects of the application were not opposed by the Crown. Here the court examined the merits of the application. The court noted that both the Crown and the defence made reference to relevancy in their submissions, however, neither addressed the terms of section 275 subsection (1)(a) or (c). Here the court refused the part of the application relating to evidence of the complainer’s sexual behaviour with other unnamed individuals over a number of years prior to her relationship with the accused and the posting of images of that conduct on the internet, as being irrelevant. The court went on to consider the other aspects of the application. The court granted the application in restricted terms allowing the third sentence of part 1 of paragraph (i) of the application which states:- “On 12th January 2017 she stayed the night at the parties' house at ... and had consensual sexual intercourse with the Applicant.” The majority of the application was refused with aspects of it considered collateral and irrelevant at common law, others aspects considered unnecessary and aspects where the test contained in section 275 was not met.