J.L. v. Her Majesty’s Advocate [2020] HCJAC 45

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted in relation to various sexual offences perpetrated against A between 2009 and 2014 including inter alia charges of lewd and libidinous behaviour and three charges of rape. The appellant lodged a special defence of incrimination in relation to those charges in which he blamed B who was previously indicted and convicted of various sexual offences also perpetrated against A. The Crown lodged a minute objecting to the leading of any evidence in relation to the incrimination it being contended it fell within section 274(1) of the Criminal Procedure (Scotland) Act 1995 in that it related to “sexual behaviour not forming part of the subject matter of the charge.” It had been argued before the Preliminary Hearing judge on behalf of the appellant that the conduct did form part of the subject matter of the charge and the evidence could be led without a section 275 application. The Preliminary Hearing judge sustained the objection to the admissibility of the evidence and the appellant appealed against that decision. It was submitted on behalf of the appellant that as the charges relating to the incriminee overlapped in time and one locus with the charges relating to the appellant then the evidence sought to be led in support of the incrimination was “that the complainer engaged in behaviour forming part of the subject matter of the charge.” It was submitted that the evidence related to specific incidents and there was no intention to go beyond the boundaries of the charge. It was submitted that the evidence was admissible at common law in that it was relevant to the issue of who committed the offences libelled and no application was required when the evidence sought to be led related to an incriminee. Here the court considered that a section 275 application was required to lead the evidence referred to and the court refused the appeal. The court stated that the fact that the incriminee abused A did not necessarily mean that the only person to abuse her was the incriminee. The court made clear that in relation to the issue of the subject matter of the charge that was the criminal conduct alleged to have been perpetrated by the appellant and any sexual behaviour involving someone else was not sexual behaviour forming part of the subject matter of the charge. As such, the court made clear that a section 275 application would be required and the evidence sought to be led would be under the control of the court which would assess whether the statutory tests under that section had been met.