Introduction

The case of HER MAJESTY'S ADVOCATE against JW ([2020] HCJ 11) was adjudicated in the Scottish High Court of Justiciary on January 14, 2020. The primary issue revolved around allegations of abduction, assault, and rape under the Sexual Offences (Scotland) Act 2009. The accused, JW, denied the charges, particularly contesting the occurrence of non-consensual acts. This commentary delves into the court's judgment, elucidating the legal principles established, the precedents considered, and the broader implications for future jurisprudence in sexual offence cases.

Summary of the Judgment

In a preliminary hearing, JW pleaded not guilty to charges that detailed a series of violent and non-consensual acts against the complainer on September 16 and 17, 2019. The court examined applications by both the Crown and the defense under section 275 of the Criminal Procedure (Scotland) Act 1995, concerning the admissibility of certain evidences. The judge, Lord Turnbull, refused the defense's application to introduce evidence regarding prior consensual sexual activities and communications, reinforcing the principle that consent must be given at the time of the act. However, the Crown's application to admit evidence of prior consensual intercourse was granted, as it was deemed relevant to the context of the violent behavior allegedly exhibited by JW.

Ultimately, the court upheld the refusal of the defense's application, maintaining the integrity of consent evaluation as per the Sexual Offences (Scotland) Act 2009, and affirmed the admissibility of relevant Crown evidence that did not infringe upon the Act's provisions.

Analysis

Precedents Cited

The judgment extensively references several precedents to underpin its reasoning:

• GW v HM Advocate 2019 SCCR 175: Established that consent must be given at the time of the act, not in advance.
• Oliver v HM Advocate [2019] HCJAC 93: Addressed the admissibility of evidence regarding prior consensual acts in rape cases, leading to a restricted allowance under specific circumstances.
• Lee Thomson v HM Advocate 13 December 2019 HCA/2019/000517/XC: Reinforced the inadmissibility of post-event consensual activity evidence to determine consent in subsequent acts.
• CJM v HM Advocate 2013 SCCR 215: Discussed the exclusion of collateral evidence that does not directly relate to the facts in issue but may affect the credibility of testimony.
• R v Cooper [2009] UKHL 42: Highlighted the autonomy and specific consent required in sexual relations, emphasizing that consent is tied to the particular act, person, time, and place.

These precedents collectively reinforce the principle that consent is a dynamic and situational element, crucially tied to the specific circumstances of each sexual act.

Legal Reasoning

Lord Turnbull's legal reasoning centered on the interpretation of consent under the Sexual Offences (Scotland) Act 2009. The Act mandates that consent must be present at the time of the act and that any belief in consent held by the accused must be reasonable. The defense's attempt to introduce prior consensual activities and communications was evaluated against these standards.

The court determined that evidence of prior consensual acts (paragraph 1a)) was irrelevant because consent cannot be conferred in advance; each act requires its own consent. Similarly, evidence of consensual sexual activity between 9.30am and 10.30am (paragraph 1g)) was deemed collateral and unrelated to the alleged non-consensual acts, thus inadmissible. The court emphasized that introducing such evidence could prejudice the complainer's testimony and undermine the specific consent required for each act.

Conversely, the Crown's application to admit evidence of consensual intercourse shortly before the alleged assault was permitted. This evidence was intrinsically linked to the events in question, providing context for the accused's alleged violent behavior and supporting the Crown's argument of motive rooted in jealousy.

Impact

This judgment reinforces the stringent requirements for consent in Scottish sexual offence law, underscoring that consent is act-specific and situational. By refusing to admit irrelevant evidence of prior consensual activities, the court safeguards the integrity of the consent evaluation process and protects complainants from undue prejudice. The affirmation of the Crown's admissibility of contextually relevant evidence ensures that similar future cases will adhere to these established principles, promoting fairness and accuracy in judicial determinations of consent.

Complex Concepts Simplified

Section 275 of the Criminal Procedure (Scotland) Act 1995

Section 275 governs the admissibility of certain types of evidence, particularly those not directly related to the substance of the case but potentially relevant to understanding the context or credibility of the parties involved.

Reasonable Belief in Consent

Under the Sexual Offences (Scotland) Act 2009, for consent to be valid, the belief that consent exists must be reasonable. This shifts the focus from a purely subjective belief held by the accused to an objective standard that considers what a reasonable person would believe in the same circumstances.

Collateral Evidence

Collateral evidence refers to information that does not directly pertain to the main issues of the case but might influence the perception of credibility or context. The Act restricts such evidence to prevent the jury from being swayed by irrelevant matters.

Autonomy in Consent

The concept of autonomy in consent emphasizes that individuals have the right to make free and informed decisions about engaging in sexual activities. Consent must be actively given for each specific act, respecting the individual's control over their own body and decisions.

Conclusion

The judgment in HER MAJESTY'S ADVOCATE against JW ([2020] HCJ 11) serves as a pivotal reaffirmation of the principles governing consent within Scottish law. By meticulously evaluating the relevance and admissibility of evidence related to prior consensual acts, the court underscored the necessity of assessing consent in its immediate and specific context. This decision not only upholds the integrity of the Sexual Offences (Scotland) Act 2009 but also provides clear guidance for future cases, ensuring that consent remains a precise and individualized determination. The refusal to admit irrelevant evidence reinforces the protection of complainants' dignity and the objective fairness required in legal proceedings surrounding sexual offences.

Key Takeaway: Consent must be present and reasonable at the time of each specific sexual act, and evidence of prior consensual activities cannot be used to infer consent for subsequent acts.