His Majesty’s Advocate v. M.J. [2024] HCJ 3

Section 275 application:- The applicant was indicted to a Preliminary Hearing in relation to 15 charges of alleged sexual offences. A section 275 application was lodged on behalf of the applicant in advance of the Preliminary Hearing. Paragraph 1 (a) of the application sought permission to admit the following evidence:- “That during the period of the libel in charge 11, immediately preceding the parties’ marriage, the accused and [the complainer] were in a sexual relationship.” In relation to charge 11 the applicant lodged a special defence of consent. Whilst the application referred to the applicant and the complainer being married at the time of the alleged commission of the offence, precognition of the complainer by the Crown disclosed that the behaviour referred to in the charge may have occurred before the parties were married. The court noted that the application did not explain why the evidence sought to be elicited engaged the provisions of section 274. The Preliminary Hearing judge observed that at paragraph 9.11.1 of the Preliminary Hearing Bench Book there is a suggestion that when drafting section 275 applications practitioners should seek permission under section 275 if they wish to lead any evidence that a relationship was affectionate, intimate or sexual in nature as such evidence may tend to show that a complainer has engaged in sexual behaviour not forming part of the subject matter of the charge. The Preliminary Hearing judge also noted that the Bench Book referred to comments in A.W. v H.M.A. 2022 J.C. 164 at paragraph 35 and by Lord Justice Clerk Gill in Moir v H.M.A. 2005 J.C. 1 at paragraph 35 which suggested such an application was necessary. The Preliminary Hearing judge considered that many questions about a relationship might be said to infer that a complainer has previously engaged in sexual conduct beyond the terms of the libel, for example, “were you in a relationship together”, however, such questions are not struck at by section 274 (under reference to Moir v H.M.A. 2005 J.C. 102 and D.S. v H.M.A. 2007 SC (PC) 1 at paras [46] and [71]). It was observed that if such questions were struck at by section 274 they could never be admitted under section 275 because they would not be questions which related to “a specific occurrence or occurrences of sexual behaviour” which is a result Parliament could not have intended. Further, the court considered that any questions theoretically struck at by section 274 could be admitted under section 275 as “specific facts demonstrating the complainer’s character” would also be invalid as such questions like “are you married” or “do you have children” are not matters which bear upon character. The court considered that in relation to questions about the status of any relationship which may have existed between an accused and a complainer and whether it was a platonic or sexual, provided the questions are general and do not seek to lead evidence of specific episodes or instances of sexual behaviour, those do not engage section 274 and the only limit to the admissibility of such questions would be the common law principle of relevancy. The Preliminary Hearing judge observed that the case of A.W. related to a section 275 application to lead detailed evidence of specific acts of sexual behaviour in the context of a sexual relationship and that sexual behaviour was removed in time from the offences libelled so were irrelevant and therefore an application under section 275 could not competently be framed to lead general evidence of a relationship being sexual rather than platonic in nature. It was further observed, in relation to the issue of common law relevance, that questions about relationship status can be admissible at common law where their purpose is to establish how an accused and the complainer knew each other or came to be in the situation where the alleged offence occurred to avoid juries being placed in an evidential vacuum. The Preliminary Hearing judge noted that the evidence sought to be admitted in the present case did not seek to elicit any evidence of specific episodes of sexual conduct and sought only to lead evidence that the status of the pre-marital relationship between the applicant and the complainer at the material time was sexual rather than platonic and consequently was not struck at by section 274 and the application was refused on the basis of being unnecessary.