R.N. v. Her Majesty’s Advocate [2020] HCJAC 3

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to the sheriff court on two charges:- (1) on various occasions between 2012-2018 he sexually penetrated the anus of his son, A, and repeatedly placed his fingers in his anus when the child was aged between 2 and 8 years; and (2) on various occasions around the same period libelled in charge 1 he sexually penetrated the vagina of his partner, B (A’s mother), and forcibly inserted his fingers and objects into her vagina without her consent. In advance of the First Diet a section 275 application containing 6 paragraphs was lodged on behalf of the appellant in relation to evidence which was sought to be elicited in respect of B. Only three of the paragraphs were considered by the sheriff (paragraphs 1, 2 and 6), two further paragraphs (paragraphs 4 and 5) were granted of consent and paragraph 3 was not insisted upon. The three paragraphs considered by the sheriff were:- (1) that between September and December 2018 B repeatedly induced and attempted to induce her sons, A and C to make false allegations of sexual abuse against teaching staff at their school; (2) that the interlocutor of 26 March 2019 of the sheriff at Ayr, following a proof at which referral grounds were established, confirmed the foregoing averred facts; and (6) that A has repeatedly made false allegations against specified teaching staff, and, in particular, did so on 11.9.18, 12.9.18, 5.11.18, and 2.5.19, to social workers and/or police, whilst being interviewed about the allegations made against the appellant. The sheriff refused paragraphs 1, 2 and 6 as being collateral matters and inadmissible at common law. The appellant appealed against the sheriff’s decision. The court here considered that the decision of consent before the sheriff in relation to paragraphs 4 and 5 did not amount to the judicial determination as required by section 275 of the 1995 Act and the court wanted addressed by parties in relation to the merits of those paragraphs. Paragraphs 4 and 5 stated:- (4) that between the conclusion of the libel and the present day B had induced A to make false allegations against the applicant“ forming the subject matter of charge 1”; and (5) that between June and August 2018 B attempted to induce her other son, C, to make false allegations of abuse against the applicant. The court here noted that a joint minute was lodged by parties seeking to provide the court with some of the background to the case, however, the court did not consider that the information presented should be provided in that form. The section 275 application made general points in relation to (i) the issue at trial to which the evidence is relevant; and (ii) the reasons it can be said to be relevant, neither of which dealt specifically with each of the paragraphs sought to be elicited. The issues at trial to which the evidence was relevant were that credibility and reliability were central to the case and it was the appellant’s position that A has been influenced by his mother to make false allegations against him and the false allegations against the teachers were closely related in time and character to those against the appellant so were relevant, with the false allegations made against teachers having been judicially determined to be false and the making of false allegations against teachers increased the likelihood that A had been told about it rather than having been subjected to it. The reasons the evidence was said to be relevant were that the appellant’s position was that the allegations were false and the evidence relating to allegations against the teachers was closely related in time and character to those made against the appellant. In relation to the inferences which it was proposed to submit to the jury should be drawn from the proposed line these related to issues of credibility and reliability, that the defence position that B had manipulated A and C was not far-fetched and that A had made false allegations against the appellant. Here it was submitted on behalf of the appellant that the sheriff had erred in holding that the material was not admissible at common law and that the material constituted behaviour in terms of section 274(1)(c) and was struck at by the legislation. It was contended that the material met the test for admissibility in terms of section 275(1). The Crown maintained its opposition to paragraphs 1, 2 and 6 it being submitted that the evidence was not admissible at common law as it was irrelevant and, even if it was relevant, it was not readily verifiable, and was thus inadmissible as collateral. It was submitted that the interlocutor in the referral proceedings did not establish that any false allegations had been made and if the paragraphs were to be allowed the risk was that the jury would be distracted on matters not relevant to the determination of the charges libelled. The Crown position was similar in relation to ground 5 since the C was not a complainer. Here the court considered the issue in relation to paragraphs 1, 2, 4, 5 and 6. In relation to paragraphs 1, 2 and 6, the court agreed with the sheriff that the matters raised were collateral and inadmissible at common law in that they had no connection, either direct or indirect, with the facts at issue but may at best affect the weight to be attached to evidence in the trial which evidence is generally inadmissible as collateral. The court noted, with reference to CJM v HMA 2013 SCCR 215, that such evidence is not a matter of the kind which “can be demonstrated more or less instantly and cannot be challenged”. In the present case the court considered that the interlocuter referred to did not provide such confirmation. Moreover, the court noted that, with the exceptions of prior convictions, a determination in one case, is generally not admissible as evidence in another. In relation to paragraphs 4 and 5 the court noted that whilst the sheriff did not consider the paragraphs in light of the Crown not opposing them, it was inappropriate to proceed in the way he had without giving proper consideration to the terms of them. The court considered that the sheriff had abrogated responsibility in not properly considering those paragraphs notwithstanding the lack of opposition by the Crown. The court considered that paragraphs 4 and 5 lacked specification. Further, there appeared to be no evidential basis for the evidence sought to be adduced apart from what the appellant considered to be the position. The court stated that it is necessary for an accused to be in a position to place before the court material or evidence from which an inference may legitimately be drawn by the jury. The court reiterated what is required for a section 275 application to be granted:- (1) before even getting to the statutory provisions the court must be satisfied that the evidence is relevant and admissible the key question being whether the evidence sought to be led has “a reasonably direct bearing on the subject under investigation” referring to what was said in CJM; and (2) if the evidence is admissible at common law then the statutory conditions must be satisfied and if they are not then the evidence falls to be excluded. The court reiterated that the three tests, that the questioning or evidence relates only to specific matters which are relevant to establishing whether the accused is guilty and are of significant probative value, are cumulative in nature. In relation to the third part of the test, he court stated that the probative value must be sufficiently significant that it is likely to outweigh any risk of prejudice to the administration of justice from its being admitted. The court referred to two further matters which have to be considered in relation to the third limb of the test, namely, the appropriate protection of a complainer’s dignity and privacy and the proportionality of admitting the evidence. The court provided guidance to practitioners in the framing of section 275 applications, reiterating that the evidence sought to be elicited is prima facie inadmissible and will only be deemed admissible if each of the three elements of the test are satisfied. Any application must be drafted with the statutory tests in mind and must comply with the requirements of the section, providing sufficient information to enable the court to understand the purpose of why the evidence ought to be admitted. The court notes that all of the paragraphs should “hinge together” with paragraph (a) being self-explanatory, paragraph (b) enabling the court to understand not only what evidence is to be put but the evidential basis for doing so, paragraph (c) requires the application to explain what the issues at trial are to which the evidence is relevant, and paragraph (d) requires an explanation of why the evidence may be considered relevant to those issues. The court stated that bald assertions will not be sufficient to meet the requirements of the subsection and deficiencies in an application may result in the court refusing to hear the application.