HMA v JG 2019

JG, has been refused to allow evidence to be lead during his rape trial that the complainer has been involved with sado-masochistic sexual conduct. JG was accused of three rapes against his former partner. It was heard at a preliminary hearing in relation to JGs case that his defence team were making an application under section 275 of the Criminal Procedure (Scotland) Act 1995, allowing the complainer to be asked questions about past sexual behaviour if granted. The application sought to ask the complainer questions regarding sado-masochistic sexual conduct with other partners that were not JG.

However, the legal team for JG had lodged the application late, not a week prior to the preliminary diet first calling and therefore the Judge decided that there was no cause shown to allow this. However Lord Turnbull presiding did allow only one part of the application to proceed. Lord Turnbull stated: “As framed, the evidence sought to be elicited of the complainer’s sexual behaviour with other unnamed individuals over a number of years prior to the commencement of her relationship with the accused, and the posting online of images of this conduct, is entirely irrelevant. How any such conduct in the generality could be relevant to the issue of whether the accused is guilty of the crimes libelled in the indictment is not specified in the application and was not identified in any of the submissions advanced.”

However, one line of questioning was allowed to proceed, Lord Turnbull continuing: “The third sentence identifies evidence which is designed to demonstrate that the complainer has engaged in sexual behaviour not forming part of the subject matter of the charge (when staying overnight on 12 January 2017). Such evidence plainly engages section 274 and the evidence identified is capable of passing the test of relevance. I accept that the questioning identified would also satisfy the tests set out in section 275 (1). I shall therefore allow the application insofar as this sentence of this paragraph is concerned.” Therefore the defence were allowed to ask the complainer questions about a time she stayed with the accused after the separation and had consensual sex.