“the immediately verifiable fact that [the first complainer] was incredible and unreliable about the rape disclosed in the statement of28 April 2020 would be collateral and inadmissible and, in any event, struck at by section 274 [of the 1995 Act]. The effect of this decision of the Crown was to deprive the appellant of a fair trial in that he was prevented from demonstrating to the jury that [the first complainer] was not credible or reliable on such important matters.”
“The applicant had the opportunity at the trial to seek dismissal of the indictment on the ground that the prosecution was oppressive or in breach of his article 6 rights. He did not advance any such line of argument. Nor did he make an application under section 275 to lead evidence of the false rape allegation. The applicant having failed to avail himself of any of the procedural mechanisms and remedies that were available to him for the purpose of arguing that his trial was unfair, he cannot now be heard to complain of unfairness in the trial process. Similarly, having made no application to have the evidence of the false allegation admitted, it is not open to the applicant to submit now that his trial was unfair due to the non-admission of such evidence … In any event, the evidence of the false allegation was obviously collateral to the rape charges on the indictment and accordingly inadmissible under the common law. The allegation related to matters which were said to have occurred several years after the rapes which featured on the indictment. There was no meaningful or relevant connection between the false allegation and the rapes. The evidence was no more than an attack on the character of [the first complainer] and therefore inadmissible under the common law. The applicant was able to challenge the credibility and reliability of both complainers at the trial by cross-examination and by leading admissible defence evidence. The trial process provided sufficient safeguards for the applicant’s rights.” (Emphasis added)
“If consent cannot lawfully be issued in advance, the question of consent in relation to the sexual act between the accused and the complainer specified in the charge cannot be illuminated, or determined to any extent, by prior expressions of interest in sexual conduct with the appellant, or by expressions of interest in any particular type of sexual activity”
“[U]nder section 57(2) of the [Scotland Act 1998 ] the Lord Advocate has no power to act in a manner which is incompatible with Convention rights. Therefore, putting the matter generally, he and his representatives have no power to act in a manner which would prevent an accused person from having a fair trial. But it was always the case that a Lord Advocate and his representatives were not entitled to act oppressively, in a manner which would prevent an accused person from having a fair trial; if they did, the court could intervene and sustain a plea of oppression in bar of trial (McFadyen v Annan 1992 JC 53). While the authority now given to Convention rights in our law means that, when considering what constitutes a fair trial, the court must take account of Convention law and jurisprudence, the issue will still fall to be dealt with under our existing procedures … In other words, even when relying on an alleged breach of article 6 on the part of the Crown, an accused person may still seek to focus the issue by means of a plea of oppression.”
“… courts of law are not bound to admit the ascertainment of every disputed fact which may contribute, however slightly or indirectly, towards the solution of the issue to be tried. Regard must be had to the limitations which time and human liability to confusion impose upon the conduct of all trials. Experience shews that it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand.”
“A certain alleged fact may be relevant in so far that, if established, it might help a fair mind to come to a certain conclusion. Nevertheless, it may fall to be excluded if its ascertainment raises a separate issue from that which is being tried. The alleged fact if put in cross and admitted may be relevant, but nevertheless it may be of a kind which cannot otherwise be proved, for, if it is disputed, it would require to be tried as carefully as the issue before the court, and the allowance of such collateral inquiries would make proofs endless.”
“At common law it has long been understood that a trial judge may, subject always to consideration of the interests of justice in the particular case, rule evidence to be inadmissible which relates to any collateral matter which could be said to have only an indirect bearing on the issues in question and which could take up court time and risk distracting the jury.”
“Apart from these statutory rules, it is thought that evidence of facts affecting the credibility of a witness, apart from the evidence of the witness himself, or unless the facts are also relevant to the questions at issue, is generally inadmissible. This is not because the facts are irrelevant, but because it is inexpedient to spend time on the investigation of collateral issues. Thus it may be admissible to lead evidence that a witness was drunk at or about the time when he claims to have been assaulted, or that he was not in a position to witness the commission of the crime which he describes in his evidence, because these facts are relevant to the decision of the case as well as to the credibility or reliability of the witness.”
“Sexual intercourse, whether or not consensual, most often takes place in private, and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much may depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to issue to vanishing point. If the only issue is consent and the only evidence is the testimony of the complainant, the conclusion that she is unworthy of credit must be decisive of the issue.”
“it could only be allowed upon the footing that a female who yields her person to one man will presumably do so to any man – a proposition which is quite untenable”
“The fact that the accused a week before an alleged murder threatened to kill the deceased does not prove an intent to kill on the day in question. But it is logically relevant to that issue. After all, to be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue.”
“At first sight this is a serious intrusion on the accused’s right to a fair trial. In cases where the accused who is on trial for rape admits that he had sexual intercourse with the complainant on the occasion in question but says that it was with her consent the credibility of the two parties is likely to be the critical issue.”
“It seems to me that [section 41(4)] will require a very fine analysis in its practical application. Issues of consent and issues of credibility may well run so close to each other as almost to coincide. A very sharp knife may be required to separate what may be admitted from what may not. The purpose of subsection (4) may be taken to be the abolition of the false idea that a history of sexual behaviour in some way was relevant to credit. The recognition of that myth as heresy is to be welcomed. But the subsection may have to be carefully handled in order to secure that that myth remains buried in the past and at the same time secure the availability of evidence of sexual behaviour which is properly admissible as bearing on the issue of consent.”
“It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues … A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial”
“To accept that persuasive evidence for the defence can be categorically excluded on the ground that it may encourage reporting and convictions is … to say either (a) that we assume the defendant’s guilt; or (b) that the defendant must be hampered in his defence so that genuine rapists can be put down. Neither alternative conforms to our notions of fundamental justice.”
“if evidence has sufficient cogency the witness must endure a degree of embarrassment and perhaps psychological trauma. This harsh reality must be accepted as part of the price to be paid to ensure that only the guilty are convicted”
“(1) In the trial of a person charged with an offence to which section 288C of this Act applies [ie a sexual offence], the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer— (a) is not of good character (whether in relation to sexual matters or otherwise); (b) has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge; (c) has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer— (i) is likely to have consented to those acts; or (ii) is not a credible or reliable witness; or (d) has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above.”
“(1) The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that— (a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating— (i) the complainer’s character; or (ii) any condition or predisposition to which the complainer is or has been subject; (b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.” (a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating— (i) the complainer’s character; or (ii) any condition or predisposition to which the complainer is or has been subject; (b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.”
“But the protection of the complainer cannot be seen apart from the basic principles of fairness in Scottish criminal procedure which entitle everyone accused of a crime to defend himself, to confront his accusers and to have a fair opportunity to put his own case. These principles underpin a value that is fundamental to criminal jurisprudence in a free society, namely the protection of the citizen from being wrongly convicted.”
“When the court gives the appropriate permission under section 275(1) … if the jury accept the evidence, it will be relevant to establishing whether the accused is guilty of the offence with which he is charged. Plainly, the evidence is not admitted simply for its bearing on the credibility of the complainer as a witness … Where the evidence is admitted, the jury must simply be entitled to take into account what the complainer’s character or condition or predisposition was, or how she had behaved before or after the incident in question, when deciding whether the Crown has proved the accused’s guilt of the crime charged.”
“It is not, therefore, simply a matter of the judge at first instance determining ‘fairness’ or ‘justice’ in an individual case, but of applying the well-tried and tested rule which exists for pragmatic reasons”
“If, for example, there exists evidence that a complainer in a rape case has, on a number of occasions in the past, made allegations of rape, either against the accused, or against him and other persons, or simply against other persons, which can demonstrably be shown to have been untrue then, for myself, I have little doubt that the evidence of those false allegations having been made would pass the test of relevance. An innocent accused would reasonably think so.”
“In the area of sexual offences, the judge or jury is not infrequently left with having to make a stark choice in resolving the issues of whether the alleged conduct took place and, if so, whether it was consensual, ultimately by having regard simply to what the complainer and accused themselves say about these matters. It has been said, by the Court of Appeal, in my judgment, with some justification, that in sexual cases ‘where the disputed issue is a sexual one between two persons in private, the difference between questions going to credit and questions going to the issue is reduced to vanishing point’ (see R v Funderburk[1990] 1 WLR 587 , 597).”
“That is not to say that there may never be cases where a previous act of intercourse might not be relevant to the issue as to whether the complainer consented on a subsequent occasion or to the issue of whether an accused reasonably believed that the complainer was consenting. However, in such a case particular circumstances would have to be averred to demonstrate what was said to be the connection between what we would see as, prima facie, unrelated events.”
“… the fact that a person may have consented to sexual activity on one occasion has no bearing at all on whether they consented on another occasion, either before or after the incident in question, save possibly, in particular circumstances, in the immediate aftermath. Far less does the fact that on an earlier occasion a complainer discussed the possibility of one type of sexual conduct have a bearing on the question whether that individual later in fact consented to such activity.” (Emphasis added)
“If consent cannot lawfully be issued in advance, the question of consent in relation to the sexual act between the accused and the complainer specified in the charge cannot be illuminated, or determined to any extent, by prior expressions of interest in sexual conduct with the accused,or by expressions of interest in any particular type of sexual activity.”
“If evidence of conduct some weeks after an alleged incident is not capable of throwing light on the question of consent at the time of the alleged incident (as the court in Oliver determined) what is the basis for saying that such evidence is capable of throwing light on the issue if it relates to something which happened within a day or so? In each case the argument is essentially the same, namely that evidence of a subsequent consensual act is capable of bearing on the question whether a prior act was consensual. I fail to see how this can be other than collateral.”
“1. In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. … 3. Everyone charged with a criminal offence has the following minimum rights: … (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …” (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …”
“The court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the perceived victim. Therefore, the court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence. In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours.”