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  4. Full bench restates limits of sexual history evidence

Full bench restates limits of sexual history evidence

14th October 2020 | criminal law | Criminal court work

A man charged with rape of a woman unconscious due to alcohol has been prevented from leading evidence of consensual intercourse hours before and after the alleged offence, in a five judge decision of the Criminal Appeal Court.

By a four to one majority, the court held that the evidence the accused, CH, sought to lead was collateral and irrelevant at common law, and in any event prohibited by s 274 of the Criminal Procedure (Scotland) Act 1995 and not within the exceptions in s 275.

CH was charged with assaulting the complainer while she was intoxicated with alcohol and incapable of giving or withholding consent, removing her clothing, tying her up with ropes and repeatedly raping her. He denied that this happened but applied to be allowed to lead evidence that having recently been introduced to the complainer, they arranged to go out, and after he picked her up they went back to a house and had intercourse before going out and meeting up with her friend. After their night out they went back to the house where the complainer "came on him"; he resisted her then because she was drunk but they had consensual lsex the following morning.

It was said that the evidence was relevant as an account of the time they had spent together, served to rebut her allegation, and supported the inference that CH was credible and reliable, and that the jury should be cautions before accepting the complainer's account.

The Crown did not oppose this application but the preliminary hearing judge refused it as not relevant to the question whether intercourse had taken place while the complainer was intoxicated and unable to consent. 

On appeal CH argued that were he to be prohibited from explaining his position regarding the short period of time they were together, the jury would only have a blank denial and he would be denied his right to give evidence, in any meaningful way. 

Lord Justice Clerk Lady Dorrian, who gave the leading opinion, affirmed the guidance on admissibility given in CJM v HM Advocate (2013). After reviewing the case law she stated: "The fact remains that the test for either post or pre-charge conduct remains the same: that it will only be relevant if it has a reasonably direct bearing on a fact at issue in the trial, in the sense of making that fact more or less probable...

"The current application seeks to permit evidence that some hours prior to the alleged incident, before the appellant and complainer had gone out for the evening, the complainer consented to sexual intercourse with the appellant, and again did so the following morning. On the face of it, this is a collateral issue. The libel is one of having intercourse with the complainer whilst she was intoxicated and thereby unable to give consent. As the preliminary hearing judge noted, it does not appear relevant to that issue to show that the complainer may have consented to have sexual intercourse with the appellant, while not intoxicated, on other occasions."

She added: "In any event, it is not accepted that consensual sex occurred on these other occasions: this is a matter entirely in dispute. Essentially the appellant seeks to lead evidence of another matter in dispute between himself and the complainer to seek to persuade the jury that his version of a separate matter in dispute is to be preferred. Dr Johnson could not devise a better definition of a collateral matter."

Even if the evidence had been admissible at common law, it would be prohibited under the Act.  CH's application was lacking in specification and did not properly address the matters set out in s 275(3). Lady Dorrian commented: "In the present case, only cursory consideration appears to have been given to these matters. Experience suggests that this is not uncommon... 

"It should be appreciated that the use to which the material, if admitted, may be put is constrained by the inferences which the court considers are reasonable ones to draw from the evidence and which it would be reasonably open to the jury to draw. That is why s 275(8) makes provision for the court to place a limitation on the extent to which evidence may be used to argue specific inferences. It is also why detailed attention must be given to s 275(3) at the time of drafting the application, with a sufficient degree of specification."

Lord Justice General Carloway, concurring, said: "This is a classic case of an accused person attempting to deflect the jury’s attention away from the real issues for trial by introducing irrelevant and collateral matters."

Lord Menzies also concurred. Lord Glennie delivered a dissenting opinion, as he considered that evidence of a prior sexual relationship "may well be relevant to the issue of consent, quite apart from it being relevant to the related issue of reasonable belief in consent". To hold this evidence inadmissible would mean there had been little need to enact ss 274 and 275. It also satisfied the tests in s 275(1), since it related only to specific occurrences of sexual behaviour demonstrating the complainer's character on the night in question.

However Lord Turnbull, supported by Lord Carloway, disagreed with this analysis, concluding: "I see no suggestion in Lord Glennie’s opinion as to how the jury would be expected to adjudicate over the contested evidence of other sexual activity which he would admit. In this context I would observe that it does not seem to me to be correct to state, that the accused 'admits' that he and the complainer had sex on other occasions. He does not admit this, he contends it, and that is where the problem arises." Nor did he accept that s 275(1) was satisfied.

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