HMA against MJ (High Court of Justiciary)

Factual and Procedural Background

The opinion concerns a preliminary hearing held on 5 September 2024 regarding an application under section 275 of the Criminal Procedure (Scotland) Act 1995. The Applicant faces an indictment containing fifteen charges of alleged sexual offending, all subject to section 288C of the Act, thereby engaging section 274. The application sought permission to admit evidence that, during the period relevant to one charge (charge 11) and immediately preceding the parties' marriage, the accused and the complainer were in a sexual relationship. Charge 11 relates to alleged offending occurring on two occasions over nearly six years, with the Applicant lodging a special defence of consent and the complainer referred to as the Applicant's spouse. However, the complainer indicated some behaviour may have occurred before the marriage. The court refused the application paragraph seeking to admit this evidence on the basis that it did not engage section 274.

Legal Issues Presented

1. Whether evidence that the accused and the complainer were in a sexual relationship immediately preceding their marriage engages the restrictions on evidence under section 274 of the Criminal Procedure (Scotland) Act 1995.
2. Whether permission under section 275 should be granted to admit such evidence.
3. The scope and interpretation of sections 274 and 275 regarding evidence of sexual behaviour or relationship status in sexual offence trials.
4. The proper application of common law relevance to general questions about relationship status in the context of sexual offence proceedings.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, focusing on their application to evidence concerning sexual behaviour and relationship status. Section 274 restricts evidence or questioning that shows or tends to show that the complainer has engaged in sexual behaviour not part of the charged offence, or that affects credibility or character. Section 275 allows exceptions but only for evidence relating to specific occurrences of sexual behaviour or specific facts about character or predisposition, provided such evidence is relevant and its probative value outweighs prejudice.

The court reasoned that general questions about relationship status—such as whether parties lived together, were married, or had children—do not fall within the scope of section 274 because they do not relate to specific sexual behaviour nor do they bear on character as contemplated by the Act. The court rejected the interpretation that such general evidence must be admitted under section 275, as this would lead to an absurd outcome where common questions about relationship status could never be asked. Instead, such questions are governed by common law relevance principles.

The court distinguished the present application from cases involving detailed evidence of specific sexual acts that are remote in time and irrelevant, such as in AW v HMA. It emphasized the importance of avoiding irrelevant questioning to protect complainers and maintain the integrity of the jury's decision-making, but also recognized that excluding general relationship evidence would create an evidential vacuum. The court concluded that evidence limited to the general nature of the pre-marital relationship as sexual, without delving into specific episodes, does not engage section 274 and is likely admissible at common law to explain how the parties came to be in the situation where the alleged offences occurred.

The refusal of the application was thus based on the conclusion that section 274 was not engaged and that the application under section 275 was unnecessary. The court also noted that other procedural mechanisms exist to address any relevance concerns during trial.

Holding and Implications

The court REFUSED paragraph 1 a) of the application seeking permission under section 275 to admit evidence that the accused and the complainer were in a sexual relationship immediately preceding their marriage.

This decision means that such general evidence about relationship status does not engage the statutory restrictions on evidence in section 274 and does not require permission under section 275. The ruling clarifies that general questions about the nature of a relationship are governed by common law relevance rather than the statutory scheme designed for specific sexual behaviour evidence. The decision does not establish new precedent but reaffirms existing interpretations and discourages unnecessary section 275 applications when common law admissibility is the proper inquiry.