Section 275: drawing the line
Given that much of the High Court trial workload consists of serious sexual offences, it will come as no surprise that at the Appeal Court the Moorov principle features regularly when considering time gaps between historical offences and whether the charges amount to a course of criminal conduct.
More recently, the other area of contention has occurred pre-trial in relation to applications under s 275 of the Criminal Procedure (Scotland) Act 1995 to allow complainers to be questioned about aspects of their sexual behaviour not forming part of the subject matter of the charge.
In Oliver v HM Advocate  HCJAC 93 (12 July 2019) the applicant faced an indictment containing six charges involving two complainers. There were sexual offences and charges involving violence and stalking. In relation to the first complainer the allegations dated from 3 and 4 September 2017. In the application it was asserted that the crimes did not occur, and that between 3 and 5 September the complainer stayed with the applicant and they repeatedly engaged in consensual sexual intercourse. Charges involving the second complainer ranged from 1 October 2017 to 2 June 2018, and 4 September to 27 October 2018. The s 275 application averred that the acts were consensual or were in self-defence. The applicant stated that he and the complainer were in a relationship which involved extreme forms of sado-masochistic behaviour with consensual acts of violence, abuse and demeaning behaviour towards each other.
Some parts of the applications were allowed but most aspects were refused, and the case was appealed. The Appeal Court reiterated that the evidence sought to be led must be relevant at common law. The fact that a complainer had consented to past sexual activity did not make it more or less likely that consent would be given on a subsequent occasion and was unlikely to be relevant. Where however the assertion was that the behaviour occurred in the immediate aftermath of the allegations charged, this did not amount to collateral material. In relation to the first complainer the court allowed questioning regarding events in the immediate aftermath of the allegations, but not in respect of incidents said to have occurred between eight and 16 weeks later.
In relation to the second complainer it was argued that questioning should be allowed about prior acts to provide a context for the behaviour averred and show the complainer maintaining her marital relationship simultaneously with her clandestine affair with the appellant. The Appeal Court indicated the judge had been correct to exclude the earlier material, but allowed the defence to question the complainer about violence said to have occurred in a sadomasochistic context. It allowed questioning that the complainer had been married and lived with her husband until March 2018, since it touched on the question of consent, but other details were excluded as they had the capacity to embarrass the complainer and amount to an intrusion of her privacy. The court did allow questioning on some details of the alleged sado-masochistic relationship to supply a context for the allegations of crime in late October 2018. There was argument about remarks made by parties on a train journey the day before an alleged anal rape. This would be considered further when recovered text messages were made available.
Section 275: proper practice
In a similar vein with a different bench, in RN v HM Advocate  HCJAC 3 (16 January 2020) the appellant was charged with penetrating his young son’s anus with fingers and vaginally penetrating the child’s mother (his partner) with fingers and objects. The incidents were alleged to have occurred between 2012 and June 2018. The s 275 application alleged that the mother had repeatedly induced the son and his brother to make false allegations of sexual abuse against teachers at their school, including at a children’s hearing referral proof. The sheriff had allowed questioning that the mother had induced the child to make allegations about the charge in which he was the complainer, and had between June and August 2018 attempted to induce her other son to make false allegations of abuse against the applicant. The applicant sought to include the interlocutor issued after the proof.
The Appeal Court had before it a joint minute designed to explain some background to the case. While not wishing to discourage this practice, it was critical of its wording and suggested it was not an appropriate way of conveying the information. The application also lacked clarity as to the evidence in relation to the various heads of argument. The court found it difficult to explore the evidential basis on which lines of questioning should be admissible, and considered much of what was sought to be admitted collateral. Indeed the joint minute described collateral matters.
Further, even if the Crown agreed some parts of a s 275 application it was still for the court to consider the matter and give reasons for any decision.
In cases where the defence was that the allegations were completely untrue, or where an adult was involved in a defence of consent, these matters could be put to a complainer and the accused could give evidence about it. In the present case the applicant was not in a position to say the child was put up to giving false evidence, nor could he lead any admissible evidence from which that inference could be drawn.
The court concluded that the evidence sought must be relevant and admissible; even if relevant, it might be inadmissible as collateral. In terms of the legislation, an exception might be made to the rule against admissibility, to admit evidence relative to guilt or innocence of the charge being of significant probative value, balancing a complainer’s dignity and privacy with the proportionality of admitting the evidence. Since the evidence sought to be admitted was prima facie inadmissible, the defence should provide a full explanation, so that if the court was minded to admit it there was a factual basis for making an exception. Bald assertions as to credibility and reliability would not be sufficient, and any such deficiencies in the application might result in the court refusing to hear it.
A further case in this context is cup-tied pending the outcome of the trial, but hopefully this can be reported in a future briefing.
As I have mentioned before, s 288BB of the Criminal Procedure (Scotland) Act 1995 (inserted by the Criminal Justice and Licensing (Scotland) Act 2010, s 63), was seen as a great way by the legislators to combine mixed charges for sexual offences in a single charge – presumably to match the flexibility of the common law. As the Crown Office functionary who drafted the three part libel in Cordiner v HM Advocate 1991 SCCR 653 I still hear ringing in my ears Lords Ross, Morison and McCluskey condemning my attempt to combine an attempted murder, rape and indecent assault into a single charge. I am sure the original libel had a charge of abduction in it too, highlighting the nature of an ongoing course of criminal conduct.
Consequently I look closely at all s 288BB cases to see how the statute is operated. In Rysmanowski v HM Advocate  HCJAC 88 (7 November 2019), the appellant was charged with a sexual assault on a 12 year old girl in four incidents over a period of 19 days at the same locus, all contrary to s 20 of the Sexual Offences (Scotland) Act 2009. The complainer was the daughter of the appellant’s partner. On the last occasion the child’s mother came home unexpectedly and witnessed the assault. The sheriff gave general directions on the need for corroboration on the basis that the acts of touching libelled constituted a single crime of sexual assault, and suggested the other elements of the charge were descriptive only and did not need to be corroborated.
The Appeal Court allowed the ground of appeal, that there was no corroboration of the other incidents, to be amended to introduce a new ground of misdirection by the sheriff. This was allowed as the legal principles at issue were the same. Passages in Alison and Hume allowing considerable latitude when framing a charge involving young children had no bearing on the need to corroborate each separate criminal act. In this case, the events libelled were separate criminal acts (Spinks v Harrower 2018 JC 177; briefing, Journal, August 2018, 30). The sheriff had misdirected the jury, giving no directions about mutual corroboration, and as a result two of the heads of the conviction were quashed, and sentence reduced from two years’ imprisonment to eight months.
The case of Stables v HM Advocate  HCJAC 89 (21 November 2019) involved the imposition of a sexual offences prevention order granted in 2008 when the appellant was due to be released from a 10 year sentence passed in 2002 for rape. As a precautionary and supervisory measure, police at Aberdeen sought a SOPO. The application, which would have been served on the appellant at the time, craved for it to apply until further orders of the court. The order, made without opposition, made no mention of duration. Subsequent to the appellant’s release, he was convicted of breaching the SOPO on four separate occasions and imprisoned each time. The appellant was indicted in January 2019, aged 79, charged with a further four breaches of the SOPO.
A compatibility minute was lodged, alleging that the SOPO was invalid as no duration was specified in the order. It was submitted that Parliament envisaged the SOPO would either be of a defined duration or state that it was for an indefinite period. The sheriff felt the commonsense position was that there was no requirement to include the words “until further order”, but it might be preferable to do so. The Appeal Court took the view that if the order did not state a definite period, the default position was until further order. It helpfully concluded that if the appellant was unhappy about the terms of the SOPO he could have appealed in the summary application process to oppose its indefinite nature.
Standing his record, however, any finite period substituted would probably be a long one!
Over the years I have noticed that frequently when previous convictions are tendered there are long gaps. I usually ask what went right during this fallow period, but often the terse answer from the agent is that his client was living in England during that time.
A criminal justice report usually fills in the details.
Such a situation arose in Cairney v HM Advocate  HCJAC 87 (27 November 2019), where the appellant was convicted of sexual offences against members of the Celtic Boys Club. One complainer was forcefully cross-examined that he had never been a member of the club and ridiculed over claiming to have been unable to have a bath since 1974 due to the abuse he had suffered. After the appellant had appeared on petition his agents asked the Crown to disclose any previous convictions the complainers might have. A search revealed there had been a breach of the peace and stalking incident in 2013, and pending charges in a similar vein. Arrangements were made to disclose this but for some reason it did not happen. When the agents enquired prior to the trial they were told the complainer had no convictions. A month after the appellant was convicted and sentenced to a total of four years’ imprisonment for nine offences, it came to light that the complainer had convictions in Scotland and England, the latter for theft, fraud, drugs offences, serious assault and failing to surrender to bail. He had received three years’ imprisonment on the assault charge, and suspended sentences on some other charges.
The Crown accepted that the complainer’s Scottish convictions were held by the Scottish Criminal Records Office, an external government agency whose data it could access. It had no right of access to the Police National Computer where other UK convictions are recorded.
The court said that the notion that the Crown had to be in physical possession of the relevant information it required to disclose had to be regarded as outmoded.
It noted that while the complainer’s allegations were the most serious and resulted in a 12 month sentence, the jury had returned a majority verdict compared to unanimous verdicts on almost all the other charges. Accordingly it quashed the conviction on this charge, as the previous convictions for dishonesty might have had a material bearing on the jury’s consideration of this complainer’s credibility.
Frank Crowe, sheriff at Edinburgh