High Court refuses appeal against rejected application to lead evidence of alleged abuse victim’s conduct to accused

About this case:

• Citation:
  [2025] HCJAC 29
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

Appellant CH denied two charges of contraventions of section 1 of the Domestic Abuse (Scotland) Act 2018 and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. He contended that he was the victim of a course of abuse at the hands of the complainer and that the allegations made against him were an extension of that abuse.

The appeal was heard by the Lord Justice General, Lord Pentland, with Lord Matthews and Lady Wise. Gebbie, advocate, appeared for the appellant and MacIntosh AD for the Crown.

Abandoned all complaints

At a preliminary hearing in the case on 8 October 2024, the appellant attempted to lodge as a defence production a subject access response issued by Police Scotland. This six-page document contained a summary of reports made to the police by the appellant about the complainer and included references to the complainer’s suicidal behaviour and abuse of the appellant by her and her family.

The report also mentioned that the appellant had kept messages and voice recordings of things the complainer had said, and that she and her new partner had telephoned him saying that he was going to be assaulted. The Crown opposed the lodging of the document essentially on the grounds that it was irrelevant and collateral to the issues in the case and contained inadmissible hearsay.

In his report to the court the preliminary hearing judge, who refused to allow the document to be received, said that with hindsight he should have decided the matter there and then before the making of a section 275 application. The judge at the continued preliminary hearing, in refusing the application, reasoned that it was open to the appellant to challenge the complainer’s evidence in court and that none of the alleged abusive behaviour that the appellant reported to the police, but abandoned all complaints about, related to false allegations by the complainer.

For the appellant it was submitted that the evidence sought to be elicited was relevant at common law because it related to the essential nature of charges as being false. All of the case law on the meaning and effect of sections 274 and 275 was distinguishable, as it did not deal with the present type of case involving abuse perpetrated by the complainer against the accused.

The Crown submitted that the issue at trial was whether the appellant acted in the manner libelled in the charges. In the absence of any averred temporal or other link between the claimed abusive behaviour of the complainer and the allegations against the appellant, the assertion that the complainer was “the abuser” was irrelevant.

Undermine the purpose

Lord Pentland, delivering the opinion of the court, noted the general deficiencies in the application: “The present application falls far short of the requisite standard. For example, in paragraph 1 it refers merely to the allegations in the charges being part of the same abuse and course of conduct by the complainer. There is no detail given of the way in which the complainer is said to have abused the appellant; no specific instances of abuse are identified.”

He continued: “There is no legitimate link between the matters in the application and the charges. It is conceivable that evidence concerning the complainer’s conduct towards the appellant might be admissible in his defence if such conduct took place in the course of the particular events libelled on the indictment. That is not, however, the approach taken in the section 275 application, which is framed at a high level of generality and lacks any such specific focus.”

Considering the motivations behind the making of the application, Lord Pentland said: “The application appears to have been drafted on the misconceived basis that the implication of the Crown’s having libelled a course of abusive conduct against the appellant is that this somehow opens the door to his being entitled to lead such evidence as he chooses to lead concerning the behaviour of the complainer towards him during the period of the libel regardless of whether there is any temporal or other link with the allegations featuring in the charges.”

He added: “Such an approach would potentially allow a person facing a charge under section 1 of the 2018 Act to blacken the character of the complainer by dredging up instances of allegedly inappropriate behaviour on her part from the past history of the relationship. This would serve only to undermine the clear policy and purpose of the 2018 Act.”

Lord Pentland concluded: “We reject the sweeping assertion advanced by counsel for the appellant in his oral submissions that the effect of the statutory provisions is to exclude the possibility of a proper defence being presented in a case such as the present one. There is no substance at all in this argument. The well-established jurisprudence applies without qualification. The fundamental difficulty is that no attempt has apparently been made to identify the particular aspects of the material referred to in the subject access report which could have a legitimate connection with and be relevant to the charges in the indictment.”

The appeal was therefore refused.