C.J.M. v. Her Majesty's Advocate [2013] HCJAC 22

Criminal Note of Appeal Against Conviction:- This remit to a bench of five judges followed the opinion of the court dated 1 June 2012. Here the court considered the admissibility of evidence tending to show that an alleged victim of sexual assault had made a false allegation of sexual assault on another occasion. The complainer had made an allegation that she and a female friend had been abducted by a male in a car and driven to a wooded area. There, forceful sexual demands were made of them which included performing sex on each other and on him. After a full police enquiry she was interviewed under caution and readily admitted fabricating aspects of her allegations and was subsequently cautioned and charged with wasting police time, but no prosecution was instituted against her. In advance of the trial, the appellant made an application under section 275(1) of the Criminal Procedure (Scotland) Act 1995 seeking permission to adduce evidence, and to allow questioning, on the previous false allegations to allow the jury to make a balanced assessment of the complainer's credibility and reliability. The court refused the application in relation to the previous false allegation on the basis the evidence sought to be elicited was collateral and inadmissible at common law. Here the court considered the issues raised. In particular, the court considered firstly whether the evidence proposed to be adduced was admissible at common law and, if it was not admissible at common law, because it concerned a collateral issue, then a section 275 could not render it admissible, since the statutory provision was designed to restrict evidence and not to remove common law prohibitions. It was submitted on behalf of the appellant that the complainer was capable of making fictitious allegations of a sexual nature to police officers, that evidence of it should not have been disallowed on the narrow basis that such behaviour did not amount to a medical condition and preventing the appellant from cross examining the complainer on the previous false allegations resulted in the appellant's right to a fair trial being severely prejudiced. It was submitted on behalf of the Crown that even if the evidence was admissible at common law, which it was contended it was not it being collateral to the facts at issue, the three cumulative tests which required to be satisfied (section 275(1)(a), (b) and (c)) had not been satisfied and the court had been correct to refuse the application in so far as it related to the previous false allegations.