Lord Justice General

Lord Clarke

Lord Philip

[2012] HCJAC 83

Appeal No: XC159/11












Appellant: Crowe; Michael Allan, Aberdeen

Respondent: Mitchell, Q.C., A.D.; Crown Agent

1 June 2012

[1] The appellant was convicted after trial in the High Court in Inverness of four charges (as restricted) on the indictment against him. These were:

"(1) on an occasion between 21 May 1991 and 20 May 1995 both dates inclusive, at [an address in Buckie] or elsewhere you [CJM] did assault [KAC], then aged between 5 and 8 years, c/o Grampian Police, Elgin, place her on a bed, remove her lower clothing and place your private member against her private parts;

(2) on various occasions between 21 May 1991 and 20 May 1995, both dates inclusive, at [the same address in Buckie] or elsewhere you [CJM] did use lewd, indecent and libidinous practices and behaviours towards [KAC], then aged between 5 and 8 years, c/o Grampian Police, Elgin, kiss her on the mouth, lock her in a bathroom, expose your private member to her, induce her to insert your private member into her mouth and to perform oral sex on you;

(3) on two occasions between 15 September 1990 and 14 September 1992, both dates inclusive, at [the same address and at another address, both Buckie] you [CJM] did, whilst acting with others, assault [RCC], born 15 September 1978, c/o Grampian Police, Elgin ... and thereafter handle her breasts;

(4) on various occasions between 15 November 1994 and 14 November 1998, both dates inclusive, at [a yet further address in Buckie] you [CJM] did assault [ALW], born 15 November 1988 ... c/o Grampian Police, Elgin, expose your private member to her, rub her leg, handle her private parts, repeatedly insert your finger into her private parts, place her hand on your private member, induce her to masturbate you, induce her to insert your private member into her mouth and to perform oral sex on you and ejaculate into her mouth".

[2] Three further charges were withdrawn by the Crown. The trial judge sentenced the appellant to a cumulo term of six years' imprisonment on these four charges.

The applications and their disposal
[3] Prior to the trial the appellant had made an application under section 275(1) of the Criminal Procedure (Scotland) Act 1995 to admit evidence and allow questioning on various matters. These included the following matter:

"In September 2006 [ALW] [the complainer on charge (4)] made an allegation that she and a female friend had been abducted by a male in a car and driven to a wooded area. There, forceful sexual demands were made of them which included performing sex on each other and on him. After a full police inquiry, there existed evidence that refuted the allegation. [ALW] was interviewed and finally admitted fabricating the complaint. She was charged with wasting police time."

[4] The Crown opposed certain aspects of the application, including the matter quoted. At a preliminary hearing on 6 January 2011 the judge refused that aspect of the application. In the court minutes he is recorded as having done so "for the reasons outlined by the Advocate depute". These reasons, as expressed in a written statement of the Crown's position, were:

"This is a collateral issue and ... inadmissible at common law. In any event it is not relevant to the issue for the jury. The matter is removed in time and character to the charges on the indictment."

[5] This decision was not at that stage appealed against. The trial diet was then imminent; the trial commenced, before a different judge, on 24 January 2011. On 25 January [ALW] was called as a witness for the Crown. At the close of her examination-in-chief counsel for the appellant renewed the application which had been made to and refused by the preliminary hearing judge. He submitted that, regard being had to the evidence-in-chief of the witness, there had been a material change of circumstances which warranted revisiting the application. The trial judge, having heard the Advocate depute in reply, refused the fresh application. The basis of his decision was that no special cause had been shown for presenting the fresh application in the course of the trial. The trial judge also indicated that he would not, in any event, have been inclined to grant the application on its merits.

[6] Prior to either of these applications the defence agent had, in response to enquiries made of the Crown, on 18 October 2010 received a letter from the procurator fiscal. This letter gave detailed information on various matters, including in paragraph 2 the incident on 12 September 2006. In summary the information concerning that incident was to the following effect: [ALW] and another young woman had late in the evening of that date arrived, in an apparently distressed condition, at a rural house complaining that a male, from whom they had accepted a lift, had driven them to a wooded area against their will and there asked them, for payment, to perform sexual acts on one another and on him. The female occupant of the house subsequently drove the young women home. The following day she telephoned the police enquiring about the welfare of these young women. No complaint had, however, been made by either of them to the police. They were subsequently traced and interviewed separately. [ALW] then gave a detailed account of being given, with her companion, a lift by a man she did not know and ultimately being subjected by him to sexual demands of the kind narrated earlier. She said that she wished to make a formal complaint about this conduct. A full police inquiry was then instituted, including attempts to identify possible suspects. [ALW] was interviewed again, this time by detective officers, when she reiterated her account of what had happened the previous evening. She also gave that account to her social worker. Later the same day the police succeeded in obtaining a statement from the other young woman. She refuted the version of events put forward by [ALW], stating that both she and [ALW] had previously prostituted themselves to the male in question; no abduction had taken place; they had accompanied him willingly to a wooded area on the pretext of intending to prostitute themselves to him again - although they had previously decided not in fact to do so. Two days later [ALW] was interviewed under caution in tape recorded conditions. The procurator fiscal's narrative continued:

"During the subsequent taped interview under caution by Detective Constable Clark, in the presence of Constable Theron, [ALW] readily admitted to having fabricated those aspects of her evidence relating to her alleged abduction and the unsolicited nature of the sexual demands made by the male, although other aspects were found to be factual."

[ALW] was subsequently cautioned and charged - presumably with wasting police time. So far as appears, she was not prosecuted for that offence.

[7] We were assured that the procurator fiscal's letter was before each of the preliminary hearing judge and the trial judge. In his report to this court the trial judge states:

"In the course of argument counsel had indicated that the information which the defence had was contained in the letter of 18 October 2010 ... No witnesses were presently available to speak to the matters referred to in paragraph 2 of the letter, if challenged. It was the intention of counsel to seek to confine questioning to an apparent acceptance by the complainer that she had not been truthful on the occasion in question. He had no wish or intention to seek to explore the background detail referred to in the letter. The Advocate depute, in opposing the application, argued that this was a collateral matter which related to a completely different time and to very different circumstances from the events of charge (4) and that if the application was allowed not only was there a real risk that the jury's attention would be deflected from the specific allegations before them but also that the complainer's dignity and privacy would be seriously invaded. It was pointed out that it was not entirely clear from the letter what exactly the complainer had apparently accepted was not true, ('although other aspects were found to be factual') and, more generally and more importantly, that if the matter was to be raised at all it would almost certainly be necessary, in fairness to the complainer, to investigate, to some degree at least, the background circumstances surrounding her relationship with the male in question at a time when, it seemed clear, she was, to a degree, out of control. These arguments appear to me to be persuasive."

The preliminary hearing judge, who had, it seems, had sight of the trial judge's report, reiterates in his report the terms of the minute recording the reasons for his refusal of the relevant part of the application. He does not expand on these reasons but says "I agree with [the trial judge]."

The submissions
[8] Mr Crowe for the appellant, who had appeared for him at the preliminary hearing and at the trial, submitted that the matter in question was not "collateral"; it was relevant to an issue at the trial, namely [ALW's] credibility and was thus admissible at common law. Reference was made to HM Advocate v Ronald (No.1) 2007 SCCR 451. If it passed that test, there was no question but that it had also passed the statutory tests under sections 274 and 275. On the basis of information which was not disputed by the Crown, the complainer had effectively confessed to having given to the police a fabricated account about an alleged sexual attack upon her. Reference was made to HM Advocate v A 2005 SCCR 593, especially per Lord Macphail at para [20]. It was both convenient and expedient to allow the testimony in question. [ALW's] evidence was critical to the Crown case as a whole, as the Crown had to rely on the Moorov doctrine. In relation to the statutory tests, the deliberate falsehood in the episode sought to be relied on was to be contrasted with the spontaneous impetuous outburst discussed in Cassels v HM Advocate 2006 SCCR 327. Thomson v HM Advocate 2001 SCCR 162 could also readily be distinguished. The decision of the judge at the preliminary hearing had been unsound and had prejudiced the fairness of the appellant's trial. The conviction should be quashed.

[9] The Advocate depute submitted that the preliminary hearing judge had exercised a discretion which could not be criticised. He had correctly identified the matter sought to be adduced as collateral and thus inadmissible at common law. That was because the matter involved someone other than the accused and because at the time of the incident [ALW] was a vulnerable 17 year old living in state accommodation. The conduct involving the accused had occurred when she was much younger. In contrast to the situation in Ronald the present case was not one in which it was suggested that the complainer was affected by a psychiatric or psychological condition. It was accepted that the position would be different if the 2006 episode had involved this accused. The statutory provisions were additional requirements for admissibility; if the common law test was not met, the meeting of the statutory tests could not render the evidence admissible (M (M) v HM Advocate (No.2) 2007 SCCR 157, especially per Lord Johnston at para [27]). Moreover, the appellant had also to satisfy section 275(1)(b); this raised considerations akin to those relating to whether or not the evidence was collateral. In any event, there had been no miscarriage of justice. There was no real possibility that, if evidence had been adduced about the 2006 episode, the jury would have come to a different verdict. It was, however, accepted that the jury's determination on charge (4) was critical to the conviction as a whole.

[10] It is plain that section 274 of the 1995 Act, as read with the exceptions in section 275, was designed to restrict evidence which would otherwise have been admissible in a criminal trial. As Lord Johnston observed in M (M) v HM Advocate (No.2) at para [27]:

"..., when consideration is given to a detailed application, at least conventionally, the starting point should be whether or not it would have been permissible to maintain such line of questioning at common law before the enactment of the legislation. I consider that, if it was not admissible under the common law at the material time, section 274 should not arise whatever its phraseology."

Lord Eassie at para [41] stated:

"As your Lordship in the chair has explained, those lines of evidence of questioning were in any event not admissible under the general law of evidence, which - leaving aside any question of expert evidence of a psychiatric condition - precludes evidence of the general truthfulness, or otherwise, of a witness or evidence of collateral matters demonstrating that in respect of those matters the witness may have been untruthful or unreliable. Section 275 of the legislation was not, in my view, intending to relax the general law of evidence and any application under section 275 must proceed upon the basis that the evidence with which it is concerned would otherwise be admissible under the general law of evidence in criminal trials."

Lord Marnoch was to the same effect.

[11] The essential question in this appeal is whether the eliciting of evidence about the allegation made by [ALW] on 12 September 2006 of having been subjected by a male to unwanted sexual demands, reiterated to police officers but subsequently acknowledged by [ALW] to have been fabricated, at least to a substantial extent, was admissible at the appellant's trial at which [ALW] was one of the complainers. The preliminary hearing judge refused the appellant's application in respect of this episode on the ground, advanced by the Crown, that evidence of this matter was "collateral" and accordingly inadmissible at common law. If it was so inadmissible, the statutory provisions could not make it admissible. In Brady v HM Advocate 1986 SCCR 191 (a case of attempted murder) Lord Justice Clerk Ross, with whom Lord Hunter and Lord Brand agreed, stated at pages 190-1:

"The general rule is that it is not admissible to lead evidence on collateral matters in a criminal trial. Various justifications have been put forward for this rule. The existence of a collateral fact does not render more probable the existence of the fact in issue; at best a collateral matter can only have an indirect bearing on the matter in issue; a jury may become confused by having to consider collateral matters and may have their attention diverted from the true matter in issue. Whatever the justification for it, the general rule is clear. The general rule does, however, suffer certain exceptions. In accordance with this general rule and the recognised exceptions to it, in cases of murder or assault it has been decided that an accused may prove that the injured party was of a quarrelsome nature or violent disposition, but that he may not prove specific acts of violence committed previously by the injured party."

[12] His Lordship then reviewed the authorities. These established, in cases of murder or assault, the general rule referred to. There was, however, noted a ruling by Lord Wheatley (at trial) in HM Advocate v Kay 1970 JC 68. There the accused was charged with the murder of her husband by stabbing. It was alleged in the indictment that she had previously evinced malice and ill-will against him, including brandishing a knife at him. She sought at her trial to lead evidence of five previous specific assaults on her by her husband - each recorded in certain hospital records. The Advocate depute did not object to the late lodging of these records but "questioned the admissibility of evidence of previous specific assaults on the panel by the deceased". Reference was made to Macdonald - Criminal Law of Scotland (5th ed) at page 309 where it is stated: "The accused may, on notice, prove that the injured party was quarrelsome but he may not prove acts of violence committed by him"; Macdonald cites case law in respect of these propositions. Lord Wheatley, allowing the evidence to be adduced, said:

"While the law as set forth in Macdonald (5th ed), at page 309, and in the case of Fletcher [(1846) Ark. 171], which is cited in support of the proposition therein stated, is understandable in the normal case - since normally it would be undesirable to allow evidence on collateral matters in a criminal trial - in the circumstances of this case I am of opinion that the evidence in relation to these five assaults, if it is tendered, should be allowed. The reason for my decision is that the indictment narrates that the accused evinced malice and ill-will against the deceased on previous occasions. The defence which has been lodged as a special defence is to the effect that the accused was acting in self-defence, she reasonably believing that there was imminent danger to her life due to an assault intended by the deceased. I consider that it would be unfair to allow detailed evidence by the Crown in support of that part of the indictment which alleges that the accused had previously evinced malice and ill-will towards the deceased, without allowing the accused the opportunity of proving in turn by detailed evidence that she had reason to apprehend danger from the deceased. It seems to me that in the circumstances of this case equity demands that such evidence should be allowed. In reaching this decision, I wish to make it clear that I am not seeking to establish any new rule of law. It may well be that normally the general rule referred to by Macdonald would have to be given effect to, but, if special circumstances be shown, and justice demands a departure from that rule, then of course such a departure requires to be made. Each case will depend on its own circumstances. I am of opinion that the circumstances of this case, as explained to me by the learned Advocate depute and by learned counsel for the accused, entitle me to regard this as an exception justifying a departure from the general rule."

[13] It may be noted that not only was there an averment of malice and ill-will but that the alleged assaults in question were by the deceased on the accused.

[14] In Brady, where the evidence sought to be adduced was of assaults by the complainer against third parties, Lord Justice Clerk Ross said:

"I regard Kay as a very special case and the general rule is in my opinion as laid down in Fletcher and referred to by, among others, Macdonald ... In my opinion [counsel for the appellant] has failed to displace the rule laid down in Irving [(1838) 2 Swin. 109] and Fletcher and followed since then. That rule is part of our law and can only be departed from in exceptional circumstances.

... the case of Kay was certainly an instance where the court departed from the strict application of the general rule. I am prepared to accept that in exceptional cases the court may depart from the strict application of the rule and the matter lies within the discretion of the judge. However, I am quite satisfied that in the present case there were no exceptional circumstances which would justify departure from the general rule. In all the circumstances I am of opinion that the trial judge reached the correct decision on the question of admissibility ...".

[15] No attempt was made in Brady to define what is meant by "collateral matters"; but it is clear that, in the context of murder and assault, evidence of specific assaults by the complainer against third parties is, subject possibly to exceptional circumstances, collateral and accordingly inadmissible at common law. The proposition that an accused may, nonetheless, adduce evidence of the complainer's "quarrelsome nature or violent disposition" is regarded as an exception to the general rule.

[16] A parallel to that rule may, perhaps, be seen in the common law rule, now subject to the statutory provisions, concerning the admission in rape and similar cases of evidence concerning the history of the complainer. In Dickie v HM Advocate (1897) 24 R (J) 82, where the issue was whether evidence of specific acts of sexual intercourse between the complainer and third parties had been properly excluded, Lord Justice Clerk Macdonald said at pages 83-4:

"The right to attack the character of a witness, and to bring evidence in support of the attack, is one which has always been carefully kept within very limited bounds. There are two reasons why this should be so. First, it is the duty of a Court to protect witnesses from attacks which they cannot be prepared to meet, and which they can claim no right to meet, by leading evidence to rebut them. And second, such enquiries, if entered upon, would necessarily interfere with the conduct of judicial proceedings by introducing collateral issues, which would be most inconvenient and embarrassing, and might often protract proceedings and obscure the true issue which was being tried. Accordingly, in the ordinary case, while it is competent to ask a witness whether he has been convicted of a crime, - if he denies it the fact cannot be vouched except by an extract conviction, - it is not competent to enter upon an enquiry into his general antecedents and to try to prove he has committed a crime. It is only competent to enquire into matters directly connected with the subject of the trial then proceeding.

In the case of injuries to women, some specialities have been introduced for obvious reasons. Where a woman maintains that she has been indecently attacked, it is competent, upon notice being given, to attack her character for chastity, and to put questions to her involving the accusation of unchastity. And in such cases it has been held competent for the accused to prove that the witness voluntarily yielded to his embraces a short time before the alleged criminal attack. That such proof should be allowed is only consistent with the clearest grounds of justice, for in considering the question whether an attempt at intercourse be criminal, and to what extent criminal, it is plainly a relevant matter of inquiry on what terms the parties were immediately before the time of the alleged crime. Further, it seems a relevant subject of inquiry whether the woman was at the time a person of reputed bad moral character, as bearing upon her credibility when alleging that she has been subjected to criminal violence by one desiring to have intercourse with her. Such evidence may seriously affect the inferences to be drawn from her conduct at the time. But such evidence is something very different from evidence of individual acts of unchastity with other men at varying intervals of time. I am not aware that such evidence has ever been allowed, indeed it could only be allowed, upon the footing that a female who yields her person to one man will presumably do so to any man - a proposition which is quite untenable. A woman may not be virtuous, but it would be a most unwarrantable assumption that she could not therefore resist, and resist to the uttermost, an attempt to have connection with her by any man who might chose to endeavour to obtain possession of her person, and to whom she might have no intention to yield. Every woman is entitled to protection from attack upon her person. Even a prostitute may be held to be ravished if the proof establishes a rape, although she may admit that she is a prostitute.

Accordingly, it does not seem to me that the relaxation of the ordinary rules of evidence in such cases should be carried any further than it has been in former cases, and that while it is competent to prove a general bad repute at the time of the offence, or to prove that the woman said to have been attacked had yielded her person recently to the same man, it is not competent to prove individual acts of unchastity with other men at other times."

[17] Again no definition is proffered of "collateral issue"; but it is clear that, in the context of sexual assaults upon women, evidence of specific individual acts of intercourse between the complainer and third parties was on that ground inadmissible.

[18] In Green and Leitch v HM Advocate 1983 SCCR 42 the appellants were convicted of rape. In their appeal they sought to adduce fresh evidence in relation to a number of matters. These were (page 46):

"(a) an admission by the complainer that she had not been raped by the two accused at the date and place libelled in the indictment;

(b) the complainer having had sexual intercourse with Thomas Green on a prior occasion, a fact denied by her in evidence;

(c) the complainer having had sexual intercourse with a number of persons on prior occasions, she having admitted having had previous intercourse only once;

(d) the complainer having made two false previous allegations that she had been raped; and

(e) the complainer is suffering from some form of psychiatric disturbance which caused her to behave abnormally, to fantasize and to have delusions."

The court remitted to a single judge (Lord Cameron) to hear evidence from certain witnesses from whom precognitions had been obtained. One was from another young woman who spoke to the complainer having admitted to her that she had not been raped by the appellants. It seems plain, however, that the remit did not extend to all the lettered matters identified. In particular, it does not appear to have extended to the complainer to have made two (specific) previous allegations that she had been raped - presumably by other men. No explanation is given for that exclusion. The court, having considered Lord Cameron's report, at page 50 observed that the additional evidence not only disclosed the admission but:

"without going into detail it showed, amongst other things, that the complainer was given to sexual fantasies, had an inordinate interest in sex, and was prone to making unwarranted accusations of rape and sexual interference on the part of various men of ages ranging from 90 downwards. She was also inclined to react to compromising situations in a hysterical way."

In the event the Crown did not support the conviction. The significant additional evidence was the admission and evidence demonstrating a psychological state involving sexual fantasies and a proneness to making unwarranted accusations of rape and sexual interference. As to the latter, there is a parallel with the admission, in a case of murder and of assault, of evidence of a quarrelsome nature or violent disposition on the part of the complainer and with the admission at common law, in cases of rape and other sexual assault on women, of general evidence of reputed moral bad character. Both of these are exceptions to the rule which excludes evidence of particular assaults and particular individual acts of unchastity. By parity of reasoning, evidence of particular false allegations of sexual misconduct by men other than the accused ought, in general, to be excluded.

[19] That appears to be consistent with the approach adopted by Lord Hodge in HM Advocate v Ronald (No.2). There the minuter was charged with rape. His defence was one of consent. He applied for leave to lead evidence of various matters, including evidence that in 2005 the complainer had made a (false) complaint to the police that she had been raped by a care worker at the school and that in 2002 she had made a (false) complaint to the police that she had (recently) been raped by a business associate. Lord Hodge considered that a number of propositions were established by the authorities. The second of these (see para [9]) was:

"... the general rule at common law that evidence of character is inadmissible as a collateral issue is based on grounds of relevancy and expediency. It is considered inexpedient to allow evidence of the existence of the collateral fact, because, while it is not wholly irrelevant, it has only an indirect bearing on the matter which is before the jury, and the leading of the evidence would both take up a great amount of court time and risk confusing the jury by distracting them from issue to be tried (Walker on Evidence (2nd ed) para 7.1.1; A v B [(1895) 22 R 402], Lord President Robertson at page 404".

At para [12] Lord Hodge added:

"I turn first to the common law and the question whether the evidence is to be excluded as relating to a collateral issue. In relation to the two prior allegations of sexual abuse, at the school in the early 1990s and in Edinburgh in September 2002, I consider that it would be inexpedient for the parties to take up court time in dealing with, and for the jury to have to consider, detailed evidence and questioning as to whether or not on those prior occasions the complainer was or was not raped. Not only would the examination of that issue, which is not central to the defence, greatly expand the length of the trial but also it might distract the jury from the principal issues in the case. However, that does not mean that the incidents are irrelevant for all purposes and that all evidence relating to them should properly be excluded."

The other purpose he had in mind was exploration of the complainer's personality state at the time when she first made a complaint about being raped. He went on to say (para [17]):

"It is not easy to identify in the authorities the boundaries of what is admissible and what is properly regarded as a collateral issue. This is in part because issues of expediency are involved as well as principles. I can express only a view that is sufficient for deciding this case as I have not been addressed on all of the relevant authorities. In my opinion it is competent at common law to lead the evidence which the defence seeks to lead from Dr Wylie in relation to the complainer's psychiatric condition and its effect on her credibility and reliability generally. But it is not admissible to lead his evidence on the credibility and reliability of the particular allegations which she has made in this case."

At para [23] he expressed his conclusion thus:

"I conclude therefore that it would not be expedient or in the interests of justice to exclude all of the evidence of the earlier two incidents and the evidence of Dr Wylie on the ground that they concerned collateral issues."

This was consistent with Lord Macphail's decision in HM Advocate v A, where expert evidence (from the Crown) as to the psychological state of the complainer was admitted in the particular circumstances of that case.

[20] It is clear that at least an element in the rationale for excluding evidence of collateral matters is expediency. Introducing collateral issues "would be most inconvenient and embarrassing and might often protract proceedings and obscure the true issue which was being tried" (Dickie v HM Advocate, per Lord Justice Clerk Macdonald at page 83). In a civil context (an action of damages for rape in which the pursuer averred that the defender was of a brutal and licentious disposition and had on two specific occasions attempted to ravish two other women) Lord President Robertson said in A v B at page 404:

"Now, it is quite plain that if these articles went to proof, the two collateral issues about the two other women would have to be tried out on the same scale as the main issues themselves, and this would be done, not because either of the other women claims it, but merely in order to lend some probability to this pursuer's case.

I cannot but feel that good sense is against such a proceeding, and I am satisfied that the law does not allow it.

In pronouncing any averment to be irrelevant to the issue, it is not implied that the matter averred has no bearing at all on the question in hand. For example, if the defender admitted at the trial that he had attempted to ravish these two other women, I think the jury might legitimately hold that this made it the more likely that he ravished the pursuer. But, then, Courts of law are not bound to admit the ascertainment of every disputed fact which may contribute, however slightly or indirectly, towards the solution of the issue to be tried. Regard must be had to the limitations which time and human liability to confusion impose upon the conduct of all trials. Experience shows that it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand."

In Swan v Bowie 1948 SC 46 at page 51 Lord President Cooper said:

"In the ordinary case it is of course well settled - not perhaps so much on grounds of strict relevance as on grounds of convenience and expediency - that 'collateral issues' will not be allowed to be investigated."

[21] It would appear on the basis of these authorities that the issue of whether on a single occasion (12 September 2006) [ALW] made a false complaint to the police that she (and her companion) had been subjected to unwanted sexual demands by a third party would, if disputed or likely to be disputed by the complainer, be collateral and evidence in relation to it would, in the absence of special circumstances such that justice demanded a departure from the rule, be inadmissible at common law. The question for decision may be whether the result should be different because the complainer subsequently admitted (or there was available evidence that she subsequently admitted) that that account had been fabricated by her. The material to the effect that she had admitted fabricating the account came from the Crown (the procurator fiscal's letter of 18 October 2010). At the trial, when the fresh application was made, no witnesses were present to speak to that admission; it was apparently the intention of counsel "to confine questioning to an apparent acceptance by the complainer that she had not been truthful on the occasion in question" (trial judge's report page 9). Presumably counsel had the same intention pre-trial when the original application was made, that is, to put to the complainer at trial that she had fabricated the account but with no intention, if she denied it, to lead evidence of her alleged admission. Neither Constable Clark nor Constable Theron was on the Crown list of witnesses; there was no defence list. That might - or might not - have avoided the spending of "a great amount of time" on the September 2006 issue though, as the Advocate depute submitted to the trial judge, if the matter was raised at all it would almost certainly be necessary, in fairness to the complainer, to investigate, to some degree at least, the background circumstances surrounding her relationship with the male in question. There was also, as was pointed out, some uncertainty as to what the complainer had apparently accepted was not true ("although other aspects were found to be factual"). So far as appears, no precognition dealing with this aspect had been taken by the defence from the complainer. There was thus no basis for predicting whether she would accept that her complaint had been untrue or, if so to some extent, to what extent. There appears to have been no attempt to obtain (if the tape had been preserved) a transcript of what the complainer had said to the detective officers in 2006. This, like an extract conviction, might have instantly verified what she had said to the police. The Crown might have entered into a joint minute but, in the absence of the tape, that could only have gone so far as recording that the detective officers had reported that the complainer had accepted that she had (to some extent) fabricated the account. Such hearsay would, in the absence of an admission by the complainer, not have advanced matters. There was thus the prospect of the jury being distracted from the true issue (namely, whether the complainer was telling the truth about what had happened to her at the hands of the appellant when she was a child aged between 8 and 14) and what may or may not have happened in the presence of a third party when she was almost 18. We were informed that the complainer had first complained to the police about the alleged childhood abuse in February 2009, when she would have been a little over 20. It is also relevant that, while both complaints were about sexual conduct against her, the place and circumstances, as well as the time, of each were very different. There is no suggestion here of any underlying psychological state or disposition of the complainer.

[22] A decision of this kind is very fact sensitive and involves primarily a judgment by the trial judge (or the preliminary hearing judge). The preliminary hearing judge does not report to us in detail on the reasoning which led him to refuse to admit the evidence of the September 2006 incident, but he in effect adopts the trial judge's reasoning. This appeal is essentially against the preliminary hearing judge's decision. While another judge might have made a different decision, that does not mean that the preliminary hearing judge was not entitled to reach the decision which he did. The circumstances are not exceptional (cf Kay). As Lord Kingarth said in Thomson v HM Advocate 2010 JC 140 at para [16]:

"At common law it has long been understood that a trial judge may, subject always to consideration of the interests of justice in the particular case, rule evidence to be inadmissible which relates to any collateral matter which could be said to have only an indirect bearing on the issues in question and which could take up court time and risk distracting the jury."

[23] In these circumstances and regard being had to the authorities referred to, the Lord Justice General would have been disposed to refuse this appeal. However, Lord Clarke and Lord Philip have expressed doubts as to whether, at least in the case of false prior complaints against a third party, a distinction can properly be drawn between a single such complaint and an underlying psychological or similar disposition to make such complaints. They note that in this case the Crown disclosed information about the prior complaint, presumably on the basis that evidence about it would or might weaken the Crown case or strengthen that of the defence. They question whether, regard being had to the fairness of the trial, it should have been ruled that evidence about the prior complaint was inadmissible. In these circumstances, in order that a full and authoritative review of this chapter of the law of evidence take place, the court has decided that this appeal should be remitted to a bench of five judges for consideration and determination. It will be appropriate that a procedural hearing before three judges should first be arranged to determine the ambit of what is to be explored at the substantive hearing.