Introduction

The case of CH v Her Majesty's Advocate ([2020] HCJAC 43) before the Scottish High Court of Justiciary addresses pivotal issues surrounding the admissibility of evidence in sexual offence trials, particularly concerning consent. The appellant, CH, was charged with rape under the Criminal Procedure (Scotland) Act 1995. The fundamental issue revolved around whether evidence of consensual sexual activity on occasions separate from the alleged offence could be admitted to rebut claims of non-consent due to the complainant's intoxication.

The parties involved were:

• Appellant: M Jackson, QC; Basten Sneddon
• Respondent: A Cameron, AD, Solicitor Advocate; Crown Agent

Summary of the Judgment

The appellant sought to introduce evidence that prior to and following the alleged incident, he had consensual sexual intercourse with the complainant while she was sober. The core argument was that this evidence would bolster his credibility and cast doubt on the complainant's assertions of non-consent due to intoxication.

The court, comprising Lord Justice General, Lord Justice Clerk, Lord Menzies, Lord Glennie, and Lord Turnbull, deliberated on the admissibility of such evidence under sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. The majority, including Lord Carloway, Lord Menzies, and Lord Turnbull, concluded that the evidence was collateral, lacking direct relevance to the issues of consent and the occurrence of the alleged offence. Therefore, they affirmed the refusal of the appeal. Conversely, Lady Dorrain and Lord Glennie dissented, arguing for the admissibility of the evidence based on contextual relevance.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to anchor its reasoning:

• CJM v HM Advocate (2013 SCCR 215): Affirmed the principle that evidence must be directly relevant to be admissible.
• Brady v HM Advocate (1986 JC 68): Reinforced the inadmissibility of collateral evidence in criminal trials.
• R v A (No.2) (2002, 1 AC 45): Discussed the nuanced relevance of prior consensual relationships in consent determinations.
• Oliver v HM Advocate (2019 HCJAC 93): Explored the boundaries of admissibility for subsequent consensual sexual activity.
• Lee Thomson v HM Advocate (2019 HCJAC 2019): Further delineated circumstances under which prior sexual conduct might be deemed relevant.

These cases collectively shape the judicial approach to evidence relevance, particularly in sexual offence contexts.

Legal Reasoning

The court's legal reasoning centered on the definitions and applications of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995:

• Section 274: Restricts the admission of evidence not directly related to the charge, specifically excluding any prior sexual behavior not forming part of the offence.
• Section 275: Provides exceptions to Section 274, permitting such evidence only if it meets specific criteria:
  • Relates to a specific occurrence of sexual behavior relevant to the offence.
  • The probative value of the evidence is significant and outweighs any prejudicial impact.
  • Proper administration of justice, including the complainant's dignity and privacy, is maintained.

The majority emphasized that the appellant's evidence did not meet these strict criteria, categorizing it as collateral and thus inadmissible. They underscored the importance of maintaining the focus on the central issues of consent and the occurrence of the offence, free from peripheral matters that might unduly sway the jury's judgment.

Lady Dorrain and Lord Glennie, however, contended that the evidence was contextually relevant, arguing that it provided a fuller picture of the relationship dynamics and directly impacted the credibility assessments essential to determining consent.

Impact

This judgment reinforces the stringent limitations on introducing collateral sexual conduct evidence in consent determinations within sexual offence trials. By upholding the inadmissibility of such evidence, the court fortified the protections for complainants against invasive cross-examinations that could compromise their dignity and the integrity of their testimonies.

Future cases will likely reference this decision to argue against the admissibility of similar collateral evidence, thereby shaping prosecutorial strategies and defense approaches in sexual offence litigation. It delineates clear boundaries, ensuring that trials remain focused on the pertinent facts without the influence of unrelated interpersonal histories.

Complex Concepts Simplified

Res Gestae

Res gestae refers to events that are part of the direct action of a crime and are admissible as evidence because they provide context and clarity to the incident in question. In this case, the court determined that the appellant's account of consensual sexual encounters outside the time of the alleged offence did not constitute res gestae.

Collateral Evidence

Collateral evidence is information that does not directly pertain to the central issues of a case but could potentially influence the jury's perception. The court deemed the appellant's evidence of prior consensual sex as collateral because it did not directly address whether the alleged offence occurred or whether consent was present.

Probative Value

Probative value refers to the ability of evidence to prove something pertinent to the case. For evidence to be admissible under Section 275, its probative value must be significant enough to outweigh any potential prejudice against the administration of justice.

Conclusion

The High Court's decision in CH v HM Advocate ([2020] HCJAC 43) serves as a definitive affirmation of the principles governing the admissibility of evidence in sexual offence trials within Scotland. By refusing the appellant's appeal, the court underscored the paramount importance of maintaining the integrity and focus of criminal trials, ensuring that peripheral matters do not overshadow the critical issues of consent and the occurrence of the alleged offence. This judgment reinforces existing legal frameworks, providing clarity for future cases and safeguarding the rights and dignities of complainants.