Appeal Under Section 74(1) of the Criminal Procedure (Scotland) Act 1995 by CH (High Court of Justiciary)

Factual and Procedural Background

This appeal arises from an application under section 275 of the Criminal Procedure (Scotland) Act 1995. The Appellant is charged with engaging in a course of abusive behaviour against his partner contrary to section 1 of the Domestic Abuse (Scotland) Act 2018, along with a further charge under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, aggravated by the Abusive Behaviour and Sexual Harm (Scotland) Act 2018. The Appellant denies these charges and contends that he was the victim of domestic abuse by the complainer, alleging that the charges are an extension of abuse he suffered from her.

At a preliminary hearing, the Appellant sought to lodge a Police Scotland subject access response as defence evidence, which contained reports made by him about the complainer’s conduct. The Crown opposed this on grounds of irrelevance, hearsay, and statutory exclusion under section 274. The preliminary hearing judge refused to admit the document and required a formal section 275 application for any such evidence.

At a continued preliminary hearing, the Appellant applied under section 275 to admit evidence from the police document to show the complainer’s abusive behaviour towards him, arguing it was relevant to his defence. The judge refused the application, considering the evidence irrelevant and collateral to the charges. Leave to appeal was granted. The trial was scheduled with evidence to be taken on commission and a floating trial date set.

Legal Issues Presented

1. Whether the Appellant’s section 275 application to admit evidence concerning the complainer’s alleged abusive behaviour towards him is sufficiently specified and relevant to the charges.
2. Whether the evidence sought to be admitted is admissible under the statutory framework of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.
3. Whether the exclusion of the evidence infringes the Appellant’s rights under Article 6 of the European Convention on Human Rights, specifically the right to a fair trial and to examine witnesses.

Arguments of the Parties

Appellant's Arguments

• The charge involves a course of conduct and does not require detailed specification of time and place; thus, evidence of the complainer’s abusive conduct towards the Appellant is relevant to establish a defence that the complainer was the abuser.
• The evidence is relevant at common law to the credibility and reliability of the complainer and the Appellant, and is specific to their relationship without involving third parties.
• The probative value of the evidence outweighs any prejudice, meeting the statutory test for admission under section 275(1).
• Admitting the evidence is necessary to uphold the Appellant’s rights under Article 6 ECHR, including the right to a fair trial and to challenge witnesses.
• Existing case law on sections 274 and 275 is distinguishable as it does not address cases where the complainer is alleged to have abused the accused.
• It is impractical to isolate specific incidents from the police document; the statutory provisions as interpreted exclude a proper defence.

Crown's Arguments

• The application lacks specification and is irrelevant to the charges, which focus on whether the Appellant acted as libelled.
• Evidence of the complainer’s abusive conduct may only be relevant if directly linked to particular events in the indictment, which the application fails to do.
• Without temporal or other links, allegations that the complainer was "the abuser" are irrelevant and collateral, and thus inadmissible on grounds of expediency.
• The complainer denies abusive behaviour and has been precognosced; allowing the evidence would distract the jury from the core issues.
• The application fails to meet the statutory requirements of specificity, relevance, and probative value under sections 274 and 275.
• Admissibility rules apply equally to Crown and defence; the party seeking to lead evidence does not affect admissibility.
• No compatibility issue under human rights law was properly raised before the court of first instance; exclusion of the evidence does not breach the right to a fair trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the section 275 application under the statutory framework and common law principles regarding evidence admissibility. It found the application fundamentally deficient in specification, lacking the required detailed explanation of how the evidence was relevant to the charges and why it should be admitted despite statutory prohibitions.

The court emphasized that evidence must be relevant to a fact in issue and not collateral or speculative. The Appellant’s evidence was framed in general terms without specific instances linking the complainer’s alleged abusive conduct to the charges. The court rejected the notion that a general allegation of a course of conduct by the complainer could automatically render all such evidence admissible.

The court also addressed human rights arguments, noting that no proper compatibility issue was raised at the lower court and that exclusion of evidence under sections 274 and 275 does not breach Article 6 ECHR rights. The principle of equality of arms was affirmed, with admissibility rules applying equally to Crown and defence.

Overall, the court concluded that the application did not meet the statutory tests for admission, was irrelevant and collateral, and that allowing such evidence would undermine the clear policy and purpose of the Domestic Abuse (Scotland) Act 2018.

Holding and Implications

The court REFUSED the appeal and upheld the refusal of the section 275 application.

The direct effect is that the Appellant may not lead the proposed evidence concerning the complainer’s alleged abusive behaviour towards him as part of his defence. The decision reinforces the strict requirements for specificity, relevance, and statutory compliance in admitting such evidence, particularly in cases involving charges under the Domestic Abuse (Scotland) Act 2018. No new precedent was established beyond affirming existing jurisprudence on the application of sections 274 and 275 and the interaction with fair trial rights under the ECHR.