L.L. v. Her Majesty’s Advocate [2018] HCJAC 35

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant has been indicted to the High Court in relation to two charges relating to the alleged rape and sexual assault of the complainer contrary to sections 1 and 3 of the Sexual Offences (Scotland) Act 2009. At the Preliminary Hearing counsel on the appellant’s behalf pleaded not guilty to both charges and confirmed that a defence statement and a special defence of consent had been lodged. A ‘section 275’ application was also lodged on behalf of the appellant to lead evidence at the trial that:- “the accused and the complainer knew each other because they had been friends before the incident. Furthermore, following a night out in October 2015 they engaged in consensual sexual intercourse within the address that the accused was living in at the time”. It was contended that the evidence sought to be adduced was relevant as:- “The accused maintains that the complainer willingly came back to his flat after a night out ... and that any sexual contact that took place within his flat was with her consent. The fact that the accused and the complainer were friends who previously engaged in consensual sexual activity of a similar nature within the accused’s address, lends support to the accused’s defence and allows the jury to properly consider the full extent of their relationship.” At the Preliminary Hearing counsel for the appellant submitted that evidence of what occurred in October 2015 would give the jury “the full picture”. The Crown did not oppose the application at the Preliminary Hearing it being submitted by the Crown that the previous occasion might be relevant. The Preliminary Hearing judge refused the application as she was of the view that a complainer consenting to sexual intercourse on an occasion in October 2015 was irrelevant in relation to whether there was consent, or reasonable belief as to consent, to intercourse in July 2016. The appellant appealed to the High Court under section 74 of the Criminal Procedure (Scotland) Act 1995. It was submitted on behalf of the appellant that the evidence was admissible at common law it being relevant. It was further submitted leading evidence of the previous sexual encounter was prohibited by the terms of section 274(1)(b) but it should be admitted in that it met the criteria of section 275(1) as:- (1) it related to a specific occurrence of sexual behaviour (section 275(1)(a)); (2) it was relevant as to whether the appellant was guilty of the offence with which he had been charged (section 275(1)(b)); and (3) its probative value outweighed the risk of prejudice to the proper administration of justice (section 275(1)(c)). On behalf of the respondent the Crown now opposed the application notwithstanding the position adopted by the Crown at the Preliminary Hearing. It was submitted on behalf of the respondent that the Preliminary Hearing judge was correct to refuse the application as the evidence sought to be adduced was irrelevant to the issues at trial. Here the court refused the appeal. The court stated that whether or not the complainer consented to sexual intercourse on an occasion months before the current allegation was irrelevant to the critical issue of whether the complainer consented on that later occasion. The court recognised that there may be occasions when previous acts of intercourse might be relevant to the issue of whether the complainer consented on a subsequent occasion, or to the issue of whether an accused reasonably believed that the complainer was consenting, however, it would be necessary for there to be present particular circumstances to demonstrate the connection between those unrelated events. The court also made a number of observations in relation to older authorities which reflected an outdated view on society in general and the law of rape in particular. The court, having considered that the evidence sought to be adduced was inadmissible at common law as it was irrelevant, nevertheless considered section 275 and took the view that section 275(1)(b) was not met as it was not satisfied that proof of the occurrence was relevant to establishing whether the appellant was guilty of the offence with which he was charged. In addition, in relation to section 275(1)(c) the court was of the view that the evidence was an inappropriate intrusion into the complainer’s dignity and privacy.