Introduction

The case of SJ v HM Advocate (2020) HCJAC 18 represents a significant examination of the admissibility of prior sexual behavior evidence in sexual offence trials within the Scottish High Court of Justiciary. The appellant, SJ, contested the preliminary hearing judge's decision to exclude evidence of earlier sexual interactions between himself and the complainer, JM, asserting its relevance to his defense of consent. This commentary explores the background, key issues, judicial reasoning, and the broader implications of the judgment.

Summary of the Judgment

In this appeal, SJ was charged with sexual assault, rape, and attempting to pervert the course of justice. He sought to admit evidence of prior sexual interactions with JM to challenge her credibility and support his consent defense. The preliminary hearing judge denied the application, deeming such evidence irrelevant. The appellate court, comprising Lords Malcolm, Turnbull, and Pentland, upheld the lower court's decision, emphasizing that prior sexual behavior between the accused and complainer does not inherently bear on the issue of consent. The court highlighted existing precedents and statutory provisions that limit the admissibility of such evidence to protect the complainer's dignity and prevent prejudice.

Analysis

Precedents Cited

The judgment references several crucial cases and legislative acts that shape the admissibility of prior sexual behavior evidence:

• LL v HM Advocate (2018 JC 182) – Reinforced the notion that prior sexual conduct between complainer and accused lacks relevance to consent issues.
• Lee Thomson v HM Advocate (2019) – Underscored continued judicial skepticism regarding the relevance of such evidence.
• JW v HM Advocate (2020 HCJ 11) – Further solidified the exclusion of prior sexual history unless exceptionally relevant.
• R v A (No 2) [2002] 1 AC 45 – Addressed the relevance of sexual history in consent defenses under English law, influencing Scottish jurisprudence.
• Dickie v HM Advocate (1897) 2 Adam 331 – An early case acknowledging the potential relevance of prior consensual interactions.
• Section 275 of the Criminal Procedure (Scotland) Act 1995 – Governs the admissibility of potentially prejudicial evidence, including prior sexual history.

Legal Reasoning

The court's reasoning centered on balancing the probative value of prior sexual behavior against its prejudicial impact. Key points include:

• Relevance to Consent: The court reiterated that prior consensual interactions do not logically influence the presence or absence of consent in subsequent allegations.
• Judicial Discretion: Emphasized the role of judicial discretion under section 275, rejecting automatic exclusion and advocating for case-by-case assessments.
• Protection of Complainer's Dignity: Highlighted the importance of safeguarding the complainer's privacy and preventing undue prejudice that could arise from introducing prior sexual conduct.
• Common Law Consistency: Maintained consistency with established common law principles that restrict the use of prior sexual history to prevent bias.
• Statutory Framework: Interpreted section 275 in conjunction with previous legislative reforms, underscoring the intention to allow relevant evidence while minimizing potential prejudice.

Lord Malcolm expressed reservations but ultimately did not dissent, advocating for careful judicial oversight. Lords Turnbull and Pentland concurred, firmly supporting the exclusion of the evidence as irrelevant.

Impact

This judgment reinforces the existing legal boundaries regarding the admissibility of prior sexual behavior evidence in sexual offence cases. It underscores the judiciary's commitment to protecting the integrity of trials by ensuring that only pertinent evidence influencing material issues like consent is considered. The decision:

• Affirms the protection of complainers from prejudicial evidence that could undermine their credibility without substantive relevance to the case.
• Clarifies the application of section 275, promoting consistency and predictability in future rulings on evidence admissibility.
• Encourages defense counsel to focus on more directly relevant evidence when challenging complainer credibility or consent defenses.
• Maintains a clear separation between enhancing the jury's understanding of the relationship and introducing potentially prejudicial prior conduct.

Complex Concepts Simplified

Section 275 of the Criminal Procedure (Scotland) Act 1995

This section governs the admissibility of evidence that might prejudice the complainer's dignity or privacy. It outlines a three-part test to determine whether such evidence should be allowed:

• Relevance: The evidence must be directly related to an issue at trial.
• Probative Value: The evidence must significantly contribute to proving a material fact.
• Prejudicial Effect: The potential harm caused by admitting the evidence must be outweighed by its usefulness.

Probative Value vs. Prejudicial Effect

Probative Value: The ability of evidence to prove something important in the case.

Prejudicial Effect: The potential for evidence to unfairly sway the jury or harm a party's reputation.

The court must weigh these two factors to decide whether to admit the evidence.

Collateral Evidence

Evidence is considered collateral if it is irrelevant to the main issues of the case. Unlike relevant evidence, which directly impacts the case's outcome, collateral evidence does not aid in deciding any of the material facts.

Conclusion

The judgment in SJ v HM Advocate (2020) reinforces the judiciary's cautious approach to admitting prior sexual behavior evidence in sexual offence cases. By upholding the exclusion of such evidence as irrelevant, the court prioritizes the fairness of the trial and the protection of the complainer's dignity over potential defense strategies that lack direct relevance to material issues like consent. This decision not only aligns with existing legal standards but also provides clear guidance for future cases, ensuring that evidence admitted in court serves a meaningful purpose without introducing undue prejudice.

Ultimately, the case underscores the importance of stringent evidentiary standards in sensitive sexual offence trials, safeguarding the integrity of the judicial process and protecting individuals from unjustified scrutiny of their personal histories.