Court may not grant s 275 application of consent: appeal judges

An application to lead otherwise inadmissible evidence under s 275 of the Criminal Procedure (Scotland) Act 1995 can only be granted if the court has considered the statutory tests and is satisfied that they have been met, and cannot be granted of consent of the Crown, the Criminal Appeal Court has ruled.

Lord Justice Clerk Lady Dorrian, Lord Glennie and Lord Turnbull gave their decision in refusing an appeal by a man, RN, against a sheriff's decision to refuse part of an application under s 275, the court instead refusing the application in its entirety.

RN was charged with sexually penetrating the anus of his son A with his fingers over a six year period, and with similar conduct in the vagina of his partner B. In relation to his s 275 application, the sheriff refused it insofar as it stated that B had induced A, and her other son C, to make false allegations of sexual abuse against teachers at their school, that this had been confirmed by a sheriff following a proof on referral grounds, and that A had repeatedly made false allegations against specified teaching staff. The paragraphs granted "of consent" stated that B had induced A to make false allegations against A which related to charge 1, and that she had attempted to induce C to do likewise.

On appeal it was argued for A that the sheriff erred in excluding evidence that was generally relevant in the sense that it demonstrated that B was engaged in a course of conduct or a pattern of behaviour which involved getting the children to tell lies about adults for her own purposes. This bore directly on the allegations made against A. 

Giving the opinion of the court, Lady Dorrian said it was apparent that the paragraphs under appeal raised collateral issues of the kind discussed in the case of CJM (2013). "In the present case to allow the evidence would move the focus from the evidence relating to the charges against the appellant onto alleged behaviour on the part of B which is not clearly specified, is disputed, and would involve derailing the trial on a side issue. It is precisely the kind of evidence which is excluded for reasons of convenience and expediency", she stated. The interlocutor referred to was ambiguous and A's contention was "not something which could be demonstrated instantly and without challenge" – it too was "a very clear, classic, case of collateral material".

Regarding the two paragraphs admitted by the sheriff Lady Dorrian continued: "Whether the Crown does or does not oppose the application cannot be determinative of whether the evidence should be allowed. The legislation is quite clear that evidence of the kind referred to in s 274 is not admissible. If it is to be admitted it can only be because the court has properly and carefully considered the matter and has been satisfied that all three aspects of the test in s 275(1), which are cumulative, have been met."

These two paragraphs lacked specification and appeared to have no evidential basis, save for RN's supposition. "In the present case the appellant may be in a position to give evidence that these things did not happen, but he is not in a position to go further and give evidence that the child was put up to it by B. Nor is he in a position to lead any evidence from which such an inference may legitimately be drawn. It was quite clear that he seeks to do so only by reference to evidence which is, in itself, wholly inadmissible."

Noting that some courts, and prosecutors, still appeared to find it difficult to balance the respective interests involved, she added: "Before consideration of the statutory provisions arises, the court must be satisfied that the proposed evidence is relevant and admissible… If the evidence would be admissible at common law, then attention must turn to the statutory provisions." Representatives preparing an application under s 275 "should understand that since the evidence is prima facie inadmissible the focus should be on providing a full explanation for the proposition that the court should nevertheless admit the evidence, concentrating strongly on the statutory tests". 

Click here to view the opinion of the court.