APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY CH AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_43 (13 October 2020)

APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY CH AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_43 (13 October 2020)

Evidence of consensual sexual activity between the appellant and complainer before and after the alleged incident is collateral and irrelevant to the issues of whether intercourse occurred at the material time and whether the complainer was incapable of consenting. The section 275 application was deficient in form and substance, failing to meet statutory requirements. Admission of such evidence would not assist the jury in resolving the real issues and would risk prejudice to the administration of justice, including the complainer's dignity and privacy.

Citation
[2020] ScotHC HCJAC_43
Parties
Appellant: CH; Respondent: Her Majesty's Advocate
Jurisdiction
Scotland
Judgment Date
13 October 2020
Procedural Posture
Criminal Appeal / Appeal Against Preliminary Hearing Judge's Refusal of Section 275 Application
Outcome
Appeal refused
Legal Topics
Rape Shield Laws, Admissibility of Evidence, Sexual Offences, Collateral Issues, Credibility of Witnesses
Criminal Law Evidence Rape Shield Laws Admissibility of Evidence Sexual Offences Collateral Issues Credibility of Witnesses

Case Brief

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Parties

CH

Appellant

Her Majesty's Advocate

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Preliminary Hearing Judge's Refusal of Section 275 Application

Legal Issues

  1. 1 Whether evidence of consensual sexual activity before and after the alleged rape is admissible
  2. 2 Whether the section 275 application meets statutory requirements
  3. 3 Whether such evidence is relevant to the issues at trial

Ratio Decidendi

Evidence of consensual sexual activity between the appellant and complainer before and after the alleged incident is collateral and irrelevant to the issues of whether intercourse occurred at the material time and whether the complainer was incapable of consenting. The section 275 application was deficient in form and substance, failing to meet statutory requirements. Admission of such evidence would not assist the jury in resolving the real issues and would risk prejudice to the administration of justice, including the complainer's dignity and privacy.

Court Disposition

Appeal refused

Orders

  • Evidence of consensual sexual activity before and after the alleged incident is inadmissible
  • Section 275 application refused