Crown application granted, defence refused in new s 275 case
A Crown application has been granted, but one by the defence refused, in the latest decision from the High Court on whether evidence of the complainer's sexual history can be led in a rape case.
In a ruling affirmed by the Criminal Appeal Court, Lord Turnbull dealt with applications arising out of alleged events after the accused, JW, met the complainer through an online dating site.
The two had exchanged messages for a few days before meeting up and having consensual intercourse in the complainer's car. Her account was that shortly after that, JW saw what he understood to be a text message on her mobile from a partner or former partner, became angry and embarked on a course of conduct that included abducting her, threatening violence, assaulting her, taking her to his house, forcing her to remove her clothing and raping her.
The Crown's unopposed application sought authority to lead evidence of the consensual sexual activity. JW's opposed application sought authority to lead evidence of the prior communications, further alleged consensual sexual activity, and certain matters which it was recognised related to part of the subject matter of the charge (which Lord Turnbull ruled did not engage the statutory provisions).
As regards the prior communications, JW argued that messages in which the complainer said she had a high sex drive and enjoyed anal sex were relevant in that the acts charged included anal penetration, and were relevant to his reasonable belief in consent. The jury should not hear only the complainer's account, that she had asked him not to engage in this conduct. The other consensual acts he alleged were so closely connected in time as to constitute a course of events and pattern of behaviour.
Refusing the application, Lord Turnbull said the court had made it clear that consent to a sexual act could not be given in advance, and the evidence of the earlier messages was therefore irrelevant. “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.”
He added: “If, as a matter of law, a prior expression of willingness to engage in sexual activity simply cannot constitute consent to a subsequent act of that kind, then it cannot provide the basis for a 'reasonable' belief in consent either.”
As for the alleged further consensual acts, “the contention that the appellant engaged in consensual sexual intercourse with the complainer at a point between 9.30am and 10.30am has no bearing at all on whether she consented to sexual activity with him in the early hours of the morning at his house at some time between 4.30am and 7.00am”.
Nor did it bear on the complainer's credibility, as argued for JW: the justification given, that the later conduct tended to support JW's position that there was consent at the earlier time, showed that the evidence “falls squarely within the definition of collateral”. The complainer denied that the later conduct took place at all, and to allow the evidence “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”.
Had it been considered relevant, it would not have had sufficient probative value for it to be admitted.
Commenting on the Crown application, Lord Turnbull noted the Crown's position that it would be unfair to the complainer to restrict her evidence and it would serve to provide the jury with a false or at least incomplete impression of how the material libelled in the charge was said to have occurred – but observed that some of what had been said in support “caused me some discomfort”, and was the kind of argument that regularly featured in defence applications.
He agreed that as it was the Crown's contention that the violence alleged was motivated by jealousy, “it was relevant to lead evidence of undisputed circumstances which could explain what led to such jealousy. I concluded that if the evidence was relevant for this purpose then it also satisfied the cumulative test set out in s 275”. However a submission that evidence of the consensual sexual act would be relevant to the issue of consent later at JW's house “sat rather uneasily alongside the Crown’s parallel submission that consent on one occasion was of no value in demonstrating the presence of consent on another”.
A note at the end of the opinion states that on appeal, Lord Justice General Carloway, Lords Brodie and Pentland agreed with the terms of Lord Turnbull's report and refused the appeal.