Lord Carloway

Appellant: Barr; William McCluskey, Glasgow

Respondent: Wade, AD.; Crown Agent

4 May 2012

[1] The appellant has been indicted at Glasgow Sheriff Court on charges of sexual assault on three separate female complainers, namely KL, LO and AM, at a flat in Glasgow in January 2011. There is also a fourth charge of supplying cannabis or cannabis resin to AM and a male witness, CG, at the same time. The Crown made an application under section 275 of the Criminal Procedure (Scotland) Act 1995 seeking to lead evidence that, at the time and place libelled, KL, CG and another male witness, EC, were consuming cannabis. This application was granted unopposed by the sheriff.

[2] The appellant also made an application under section 275 to lead evidence in a number of different areas. The sheriff refused this application. An appeal has been taken in respect of three of the areas. These are, first, that some days prior to that of the alleged offences, KL had approached the appellant at his hotel window and asked him if he could obtain cannabis for her. She was told that he could not. She returned and invited the appellant to her flat, where she provided him with cannabis. Secondly, it is said that, on the night of the alleged offences, KL again asked the appellant to her flat and supplied him with cannabis. It is also said that he shared cannabis with her, the other complainers and certain named witnesses. The narrative relative to these first and second areas was expanded in the course of the appeal hearing, but, in essence. it is that the purpose of this evidence is to show the limited duration, nature and extent of the relationship between the appellant, the complainer and the others and to explain their shared interest in cannabis. It was accepted that that may go to the complainers' credibility and reliability, hence being struck at by section 274. It was also said that it was to show that it had been KL who had supplied the cannabis, rather than the appellant. In that regard KL has been incriminated relative to charge 4. The third area is that, prior to the time of the alleged sexual offences, LO, AM and EC were together on a bed in a bedroom at the locus and engaging in "sexual behaviour" with one another. The explanation of the need for that evidence is that the appellant has incriminated EC, by saying that it was he who had committed the offences, albeit that these are said to have occurred after the complainers had fallen asleep.

[3] The sheriff reports that he had great difficulty in following the defence application and the subsequent submissions to him and that it appeared all to be a fishing exercise. He considered that the application lacked the necessary form and content to enable the court to carry out the exercise required by section 274 and 275. In that connection, of course, a degree of precision of language is required if these applications are to be dealt with expeditiously in the interests of justice. Having attempted to comprehend the terms of the application itself, the court is not at all surprised by the sheriff's expression of difficulty.

[4] At the outset it is important to observe that section 274 prohibits questioning designed to show that, in short, a complainer (a) is not of good character; (b) has engaged in sexual behaviour not forming part of the subject matter of the charge; or (c) has at any time, other than shortly before or at the same time or shortly after the alleged conduct, engaged in non-sexual behaviour as might found an inference of consent or that the complainer is not credible or reliable. The remaining prohibition is not relevant here. The section does not strike at any relevant conduct on the part of someone who is not a complainer, nor does it prevent proof of relevant non-sexual behaviour at or about the same time as the alleged offence.

[5] With these considerations in mind and having regard to the grounds upon which the court may allow evidence notwithstanding the prohibitions in section 274, the court first does not consider that the reference to the cannabis supply on an occasion several days prior to the events libelled is relevant to the jury's consideration of the charges. Even if it was relevant, the reference to cannabis supply on that occasion is of such limited probative value that the court does not consider that, in terms of section 275, its significance would be likely to outweigh the risk of relative prejudice to the proper administration of justice. The court will refuse the appeal insofar as relating to this head. That does not of course prohibit the appellant from leading evidence of when the appellant first met the complainer or indeed when they subsequently met, but it does mean that any reference to prior cannabis supply or sharing on a prior occasion is excluded.

[6] In relation to the next head, the court considers that the sharing of cannabis at the time, or shortly before, the events libelled is something which may be relevant to the credibility or reliability of the complainers. Perhaps more important, it is of direct relevance to the charge of drug supply. If this evidence could not be led, it would be difficult for the appellant to establish the incrimination of KL on that charge. The court will therefore, and especially in the absence of opposition from the Crown, allow evidence to be led under this head, but deleting the word "again" where it occurs in that paragraph. In short, it considers that sharing of cannabis at or about the time of the alleged offences is relevant to a consideration of the appellant's guilt on the charges of sexual assault as well as drug supply and that it has a significant probative value outweighing any prejudice.

[7] So far as the final area if concerned, the court considers that evidence of sexual behaviour involving two of the complainers and the incriminee, apparently almost immediately before the alleged offence occurred, has a significant probative value and is relevant to the credibility and reliability of the complainers on the sexual offences charges. It will accordingly allow evidence to be led under that head under deletion of the dates and the substitution therefor the words "within about an hour", thus limiting any exploration of sexual behaviour to what may have occurred immediately before the alleged incidents.

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