HER MAJESTY'S ADVOCATE AGAINST JW [2020] ScotHC HCJ_11 (14 January 2020)

Evidence of prior sexual communications and subsequent consensual sexual activity is inadmissible as it is irrelevant to the issue of consent or reasonable belief in consent at the time of the alleged rape; consent must be contemporaneous and evidence must not be collateral.

Citation: [2020] ScotHC HCJ_11
Parties: Prosecution: Her Majesty's Advocate; Accused: JW
Jurisdiction: Scotland
Judgment Date: 14 January 2020
Procedural Posture: Criminal / Preliminary Hearing, Section 275 Applications
Outcome: Applications by the accused refused; Crown application granted; appeal refused and decision affirmed.
Legal Topics: Rape, Consent, Evidence Admissibility, Section 275 Applications, Collateral Evidence

Criminal Law Sexual Offences Rape Consent Evidence Admissibility Section 275 Applications Collateral Evidence

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Parties

Her Majesty's Advocate

Prosecution

Accused

Procedural Posture

Criminal / Preliminary Hearing, Section 275 Applications

Legal Issues

1 Whether evidence of prior sexual communications and subsequent consensual sexual activity is admissible under section 275 of the Criminal Procedure (Scotland) Act 1995
2 Whether such evidence is relevant to consent or reasonable belief in consent for the alleged rape

Ratio Decidendi

Court Disposition

Applications by the accused refused; Crown application granted; appeal refused and decision affirmed.

Orders

Refusal of accused's section 275 application to admit evidence of prior communications and subsequent sexual activity.
Grant of Crown's section 275 application to admit evidence of consensual sexual intercourse shortly before alleged offence.