DS v. Her Majesty's Advocate (The High Court of Justiciary Scotland ) [2007] UKPC D1 (22 May 2007)

Privy Council Appeal No 12 of  2006

DS										Appellant
v.

HER MAJESTY’S ADVOCATE	Respondent

FROM

THE HIGH COURT OF JUSTICIARY
SCOTLAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 22nd May 2007

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Present at the hearing:-

	Lord Hope of Craighead
	Lord Rodger of Earlsferry
	Baroness Hale of Richmond
	Lord Carswell
	Lord Brown of Eaton-under-Heywood
	
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Lord Hope of Craighead

1.	The issue in this appeal is whether section 10 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (“the 2002 Act”) which inserted section 275A into the Criminal Procedure (Scotland) Act 1995 is compatible with the appellant’s right to a fair trial under article 6 of the European Convention on Human Rights.  This is a devolution issue within the meaning of paragraph 1(a) of Schedule 6 to the Scotland Act 1998, because it raises the question whether this provision was within the legislative competence of the Scottish Parliament.  The appeal has been brought with the special leave of the Judicial Committee under paragraph 13 of Schedule 6 to the 1998 Act.

2.	The 2002 Act has various purposes, as its long title indicates.  They include making new provision about the admissibility of evidence bearing on the character, conduct or condition of alleged victims at trials of persons charged with sexual offences, and providing for the disclosure of those persons’ previous convictions of sexual offences where such evidence is allowed.  Restrictions on evidence relating to sexual offences were first introduced into Scots criminal law by section 36 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.  The provisions which were inserted into the Criminal Procedure (Scotland) Act 1975 by that section were re-enacted in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”).  Sections 7 and 8 of the 2002 Act substitutes in place of these sections as originally enacted two new sections 274 and 275 which are designed to further restrict evidence relating to sexual offences.  Section 10 of the 2002 Act introduces a new section 275A which provides for the disclosure of any previous conviction of the accused of a sexual offence, or of an offence involving a substantial sexual element, where the court allows questioning or admits evidence of the kind restricted by section 274.  Section 275A is the provision that is under scrutiny in this case.  But it has to be read in the light of the restrictions set out in the substituted sections 274 and 275.  

Background

3.	I must say a word or two about the background to put these provisions into their proper context.
 
4.	Section 274(1) of the 1995 Act, as originally enacted, directed the court not to admit, or allow questioning designed to elicit evidence which showed or tended to show that the complained

“(a) is not of good character in relation to sexual matters;
(b) is a prostitute or an associate of prostitutes; or
(c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.”

It was subject to section 275(1), which permitted the court to allow the questioning or, as the case might be, admit the evidence where it was satisfied on an application by the accused

“(a) that the questioning or evidence referred to [in section 274(1)] is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or on behalf of the accused;
(b) that the questioning or evidence referred to in paragraph (c) of that subsection –
(i) is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming the subject matter of the charge; or 
(ii) is relevant to the defence of incrimination; or
(c) that it would be contrary to the interests of justice to exclude the questioning or evidence referred to in that subsection.”

5.	The debate about the questioning of complainers in sexual offence cases which prompted the introduction of those provisions has intensified since they were originally enacted in 1985.  Its progress in England and Wales was reviewed extensively in R v A (No 2) [2002] 1 AC 45.  It is unnecessary to repeat the details here.  But in para 53 reference was made to Home Office Statistics published in June 1998 which indicated that, while in 1985 35% of rapes reported to the police in England and Wales occurred within an intimate relationship and 30% were by strangers, by 1997 these percentages had altered to 43% and 12% respectively.  On the other hand the conviction rate for rape in England and Wales had decreased markedly over the same period, as 24% of rapes complaints to the police in 1985 resulted in a conviction but by 1996 the number of rape complaints to the police had trebled but the conviction rate had fallen to 9%.  It was widely believed that the balance between the rights of the defendant and the complainant were in need of adjustment if women are to be given the protection to which they are entitled against conduct which the law prescribed as criminal conduct.  Section 41 of the Youth Justice and Criminal Evidence Act 1999 was designed to achieve that adjustment in England and Wales.  In R v A (No 2) the House of Lords held that Parliament had pursued a legitimate objective in enacting that section.  But it had to be read down in the way indicated by Lord Steyn in para 46 to render it compatible with the accused’s right to a fair trial under article 6 of the Convention.

6.	The social changes referred to in the Home Office Report and the decline in the conviction rate in rape and other sexual cases have followed a similar pattern in Scotland.  Recently published figures indicate that the conviction rate for rape in 2005-2006 was 3.9 per cent.  In the previous year it was 5%.  On 9 November 2000 the Scottish Executive issued a Consultation Document, Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials, in which views were sought as to how best to address this problem.  Among the issues raised in the Consultation Paper were the approach that ought to be taken to the admissibility of evidence about the complainer’s sexual history and character, including character evidence that was not explicitly sexual and whether, if the accused had previously been convicted of a sexual offence, this should be disclosed. A Report on the consultation was issued on 21 June 2001.  It indicated that a majority of consultees supported its proposals, although a significant number of consultees did not.  On 28 June 2001 the Sexual Offences (Procedure and Evidence) (Scotland) Bill was introduced in the Scottish Parliament.  It was accompanied by a Policy Memorandum, in which it was said that the Bill had two major policy objectives.  These were to prevent the accused in rape and other sexual offence cases from personally cross-examining the complainer by requiring him or her to be legally represented throughout his or her trial, and to strengthen the existing provisions restricting the extent to which evidence could be led regarding the sexual history and character of the complainer.  

7.	No mention was made in the Policy Memorandum of the proposal that the accused’s previous convictions should be disclosed if the court were to allow questioning or the leading of evidence of the kind that, except with its permission, was to be prohibited.  This proposal did not emerge as part of the legislation until after the Justice 2 Committee had considered the Bill and issued its Stage 1 Report (SP Paper 446 Session 1 (2001)) on 14 November 2001.  It was introduced as an Executive amendment in December 2001.  On 11 December 2001 the Deputy Minister for Justice, Richard Simpson, wrote to Pauline McNeill, the Convener of the Justice 2 Committee, explaining the policy behind the amendment and why it was being lodged at that stage (“the December 2001 letter”).  Thereafter the Justice 2 Committee considered the Bill at Stage 2 between 12 to 18 December 2001 and at Stage 3 on 27 February 2002 when oral evidence was taken on the issues raised by the amendment.  The Bill was passed on 6 March 2002 and received the Royal Assent on 11 April 2002.

8.	Section 1 of the 2002 Act has inserted a new section 288C into the 1995 Act, which prohibits the personal conduct of the defence by an alleged sex offender.  Section 288C lists the sexual offences to which the prohibition applies in subsection (2).  It is in these terms:

“(2) This section applies to the following sexual offences:
(a)	rape;
(b)	sodomy;
(c)	clandestine injury to women;
(d)	abduction of a woman or girl with intent to rape;
(e)	assault with intent to rape;
(f)	indecent assault;
(g)	indecent behaviour (including any lewd, indecent or libidinous practice or behaviour); 
(h)	an offence under section 106 (1)(a) or 107 of the Mental Health (Scotland) Act 1984 (c.36) (unlawful sexual intercourse with mentally handicapped female or with patient);
(i)	an offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) –
(i) sections 1 to 3 (incest and related offences);
(ii) section 5 (unlawful sexual intercourse with girl under 13 or 16);
(iii) section 6 (indecent behaviour toward girl between 12 and 16);
(iv) section 7(2) and (3) (procuring by threats, etc);
(v) section 8 (abduction and unlawful detention); 
(vi) section 10 (seduction, prostitution, etc of girl under 16);
(vii) section 13(5)(b) or (c) (homosexual offences).”

9.	Section 7 of the 2002 Act provides:
“For section 274 (restrictions on evidence relating to sexual offences) of the 1995 Act there is substituted –

‘274  Restrictions on evidence relating to sexual offences
(1)	In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer –

(a)	is not of good character (whether in relation to sexual matters or otherwise);
(b)	has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge);
(c)	has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer –
(i) is likely to have consented to those acts; or
(ii) is not a credible or reliable witness; or
(d)	has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above.

(2)	In subsection (1) above –
‘complainer’ means the person against whom the offence referred to in that subsection is alleged to have been committed; and
the reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature.’ ”

10.	Section 8 of the 2002 Act provides:
“For section 275 (exception to restrictions under section 274) of the 1995 Act there is substituted –

‘275  Exception to restrictions under section 274
(1)	The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that –
(a)	the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating –
(i) the complainer’s character; or
(ii) any condition or predisposition to which the complainer is or has been subject;
(b)	that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and
(c)	the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.

(2)	In subsection (1) above-
(a)	the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature;
(b)	‘the proper administration of justice’ includes –
(i) appropriate protection of a complainer’s dignity and privacy; and
(ii) ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury’s verdict,
and, in that subsection and in sub-paragraph (i) of paragraph (b) above, ‘complainer’ has the same meaning as in section 274 of this Act.’ ”

There then follow seven further subsections which regulate the procedure that is to be adopted when making an application under that section, direct the court to state its reasons for its decision under subsection (1) and enable the court at any time to limit the extent of evidence to be admitted or questioning to be allowed.

11.	Section 10(4) of the 2002 Act provides:

“After section 275 of the 1995 Act there is inserted –

‘275A  Disclosure of accused’s previous convictions where court allows questioning or evidence under section 275
(1)	Where, under section 275 of this Act, a court on the application of the accused allows such questioning or admits such evidence as is referred to in section 274(1) of this Act, the prosecutor shall forthwith place before the presiding judge any previous relevant conviction of the accused.

(2)	Any conviction placed before the judge under subsection (1) above shall, unless the accused objects, be –
(a)	in proceedings on indictment, laid before the jury;
(b)	in summary proceedings, taken into consideration by the judge.

(3)	An extract of such conviction may not be laid before the jury or taken into consideration by the judge unless such an extract was appended to the notice, served on the accused under section 69(2) or, as the case may be, 166(2) of this Act, which specified that conviction.

(4)	An objection under subsection (2) may be made only on one or more of the following grounds –
(a)	where the conviction bears to be a relevant conviction by virtue only of paragraph (b) of subsection (10) below, that there was not a substantial sexual element present in the commission of the offence for which the accused has been convicted;
(b)	that the disclosure or, as the case may be, the taking into consideration of the conviction would be contrary to the interests of justice;
(c)	in proceedings on indictment, that the conviction does not apply to the accused or is otherwise inadmissible; 
(d)	in summary proceedings, that the accused does not admit the conviction.
….

(7)	In entertaining an objection on the ground mentioned in paragraph (b) of subsection (4) above, the court shall, unless the contrary is shown, presume that the disclosure, or, as the case may be, the taking into consideration, of a conviction is in the interests of justice.

….

(10) For the purposes of this section a ‘relevant conviction’ is, subject to subsection (11) below –

(a) a conviction for an offence to which section 288C of this Act applies by virtue of subsection (2) thereof; or
(b) where a substantial sexual element was present in the commission of any other offence in respect of which the accused has previously been convicted, a conviction for that offence,
which is specified in a notice served on the accused under section 69(2) or, as the case may be, section 166(2) of this Act.’ ”

Section 275A includes five other subsections in addition to those that I have quoted.  They enable the prosecutor to place before the judge a conviction to which objection is taken so that the judge may take it into consideration when he is considering the objection (subsections (5) and (6)), regulate the procedure to be adopted where objection is taken on the grounds mentioned in paragraphs (c) and (d) of subsection (4) (subsections (8) and (9)) and require an extract of the conviction to be served on the accused in the case of a conviction other than that to which section 288C applies containing information that a sexual element was present in the commission of the offence (subsection (11)).

The facts

12.	The appellant was indicted for trial in the sheriff court at Paisley on a charge of indecent assault and a charge of failing without reasonable excuse to appear at a diet of which he had been given due notice contrary to section 27(7) of the 1995 Act.  The complainer named in the first charge is said to have been aged 17 years at the time of the incident.  The appellant is said to have assaulted her in a motor vehicle by kissing her on the mouth, preventing her from leaving the vehicle, placing his hand inside her underpants, inserting his finger into her private parts and touching her clothing and naked breasts.  Attached to the indictment that was served on him was a notice under section 69(2) of the 1995 Act that it was intended to place before the court a previous conviction which applied to him.  It included a conviction on indictment in the sheriff court at Paisley under section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (indecent behaviour toward girl aged between 12 and 16).  This is a conviction to which section 288C applies.  The appellant’s defence is that the complainer consented to the acts of which he is charged in the indecent assault charge.          

13.	The appellant wishes to adduce evidence which may show or tend to show that the complainer is a person to whom the criteria in section 274(1)(a)-(d) of the 1995 Act apply.  The original trial diet was postponed to enable him to follow the statutory procedure.  On 26 November 2004 he lodged an application under section 275 of the Act giving details of the evidence that was sought to be elicited from the complainer, any other witness having knowledge thereof and from the appellant himself, should he give evidence, and the issues to which and the reasons why that evidence was considered to be relevant.  The concluding paragraph of the application states that the inference which the court will be invited to draw from the evidence is that the complainer is neither credible nor reliable in relation to her allegations that the appellant indecently assaulted her and that the appellant’s conduct on the night in question did not amount to the crime charged.  He has a relevant previous conviction.  So he lodged a devolution minute in which he maintained that sections 274, 275 and 275A of the 1995 Act, as amended by the 2002 Act, were incompatible with his right to a fair trial in terms of article 6 of the Convention.

14.	On 4 February 2005 the sheriff referred the devolution issue to the High Court of Justiciary for determination.  In the course of the hearing before the High Court of Justiciary the single issue to which counsel’s submissions were directed was whether, when read in conjunction with sections 274 and 275, section 275A of the 1995 Act was compatible with the appellant’s right to a fair trial.  On 3 August 2005 the High Court of Justiciary (the Lord Justice General (Cullen) and Lords Hamilton and Nimmo Smith) held that there was no such incompatibility: 2006 JC 47.  In the final paragraph of its opinion the court said that any question as to the effect of any decision taken under section 275A on the fairness of the appellant’s trial, if he were to be convicted, should be considered in the light of what happened up to the conclusion of the trial: para 26.

The issue

15.	The appellant intends to defend himself on the basis outlined in his section 275 application. That being so, he submits that there is a material risk that his previous conviction for a sexual offence will be disclosed to the jury under section 275A.  He maintains that its disclosure would prejudicially influence their assessment of the evidence, so depriving him of a fair trial.  He also maintains that the cumulative effect of sections 274, 275 and 275A is to exert pressure on him, contrary to his right to a fair trial, not to defend himself in the manner that his section 275 application indicates.  

16.	The issue, then, is whether section 275A, read in conjunction with sections 274 and 275, is inconsistent with the appellant’s right to a fair trial under article 6 of the Convention and therefore not law in terms of section 29(1) and (2)(d) of the 1998 Act.  In his written case the appellant submitted that there was a further issue as to whether section 275A in conjunction with sections 274 and 275 was inconsistent with article 6 taken with article 14 of the Convention.  But in the course of the hearing the Board indicated that, having regard to the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department [2007] 2 WLR 24 that the words “other status” in article 14 of the Convention did not extend to long-term prisoners who were treated differently from life sentence prisoners, there appeared to be no substance in this argument.  Mr Bovey QC for the appellant wisely did not insist on it.

17.	Delivering the opinion of the Court in the High Court of Justiciary, the Lord Justice General said at 2006 JC 47, para 21:

“The central questions which arise in this reference are whether section 275A, considered in conjunction with sections 274 and 275, has a legitimate aim, and, if so, whether the means which it provides for achieving that aim are disproportionate.”

That, with respect, is not the real issue in this case.  The Convention right that the appellant invokes is his right to a fair trial. This was described in Salabiaku v France (1988) 13 EHRR 379, para 28, as a fundamental principle of law.  In Doorson v The Netherlands (1996) 22 EHRR 330, 358, para 67 the Court said that its task was to ascertain whether the proceedings as a whole were fair.  In Dyer v Watson, 2002 SC (PC) 89, 113, I drew attention to the fact that a distinction must be made between those rights which are said by the Convention to be absolute and unqualified and those which are expressly qualified by provisions which permit them to be interfered with in certain circumstances.  I said that the overriding right guaranteed by article 6(1) was a fundamental right which did not admit of any balancing exercise, and that the public interest could never be invoked to deny that right to anybody in any circumstances: see also Montgomery v HM Advocate, 2001 SC (PC) 1, pp 27E, 29F-G; Brown v Stott, 2001 SC (PC) 43, pp 60B 74B.  The fundamental nature of the right to a fair trial has been stressed repeatedly in subsequent cases both in the Judicial Committee and in the House of Lords: R v Forbes [2001] 1 AC 473, para 24; Porter v Magill [2002] 2 AC 357, para 87; Millar v Dickson, 2002 SC (PC) 30, para 52; Mills v HM Advocate, 2003 SC (PC) 1, para 12; Sinclair v HM Advocate, 2005 SC (PC) 28, para 37. The law-making powers of the Scottish Parliament do not permit it to pass laws which will deny an accused a fair trial.        

18.	In my opinion the issue of competence breaks itself down into three questions, similar to those which were considered in Flynn v HM Advocate, 2004 SC (JC) 1, para 38: (1) what does section 275A mean, when it is read in conjunction with sections 274 and 275?  (2) how is section 275A intended to operate in practice?  (3) is section 275A, on that reading and given that method of operation, compatible with the appellant’s right to a fair trial and thus within the competence of the Scottish Parliament?  It should, of course, be borne in mind that the stronger the case is for saying that the section is incompatible, the stronger the argument is for giving a meaning to it, and for saying that it should be operated in such a way, that will avoid the incompatibility.  But before I discuss these questions there are a number of preliminary points that need to be made, all of which are common ground.

19.	An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament:  Scotland Act 1998, section 29(1).  A provision is outside that competence so far as, among other things, it is incompatible with the Convention rights: section 29(2)(d).  The expression “the Convention rights” has the same meaning as in the Human Rights Act 1998: section 126(1).  Among the Convention rights as defined in section 1(1) of the Human Rights Act 1998 are the rights set out in article 6 of the European Convention on Human Rights.  Article 6(1) provides, inter alia:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”

Article 6(3) provides, inter alia:

“Everyone charged with a criminal offence has the following minimum rights:
..
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
… ”                       

20.	Section 100(1) of the Scotland Act 1998 provides that the Act does not enable a person to rely on any of the Convention rights in any proceedings in a court or tribunal unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the Act were brought in the European Court of Human Rights.  I do not think that this threshold issue gives rise to any difficulty in this case.  The appellant has been charged with a criminal offence, and he is asserting his article 6 right to a fair trial.  If the effect of section 275A is that he will not receive a fair trial, it follows that his article 6 right will be violated.

21.	Section 101(1) of the Scotland Act 1998 provides that that section applies to any provision of any Act of the Scottish Parliament which could be read in such a way as to be outside competence.  Section 101(2) provides: “Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.”  The wording of that subsection is to be contrasted with that of section 3(1) of the Human Rights Act 1998, which provides:  “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”  Subordinate legislation for this purpose includes an Act of the Scottish Parliament: section 21(1)(b).  

22.	The word “narrowly” in section 101(2) of the Scotland Act looks awkward in a case where the question is whether a provision in an Act of the Scottish Parliament is incompatible with the Convention rights.  Where incompatibility with the Convention rights is in issue, the obligation in section 3(1) of the Human Rights Act is to construe the provision in a way that is compatible with them.  Various techniques may be used to achieve this result.  Section 3(1) defines the purpose of the exercise, not the way of achieving it.  This is left to the court to work out according to the demands of each case: Ghaidan v Godin-Mendoza [2004] 2 AC 557, per Lord Rodger of Earlsferry, para 106 et seq.   

23.	The explanation for the choice of language in section 101(2) is to be found in the way the limits of the legislative competence of the Scottish Parliament are defined in section 29(2).  The matters listed there extend well beyond incompatibility with the Convention rights.  They include legislation relating to reserved matters as defined in Schedule 5 and legislation which is in breach of the restrictions in Schedule 4.  An attempt by the Scottish Parliament to widen the scope of its legislative competence as defined in those Schedules will be met by the requirement that any provision which could be read in such a way as to be outside competence must be read as narrowly as is required for it to be within competence.  

24.	It is otherwise in the case of the Convention rights.  The proper starting point is to construe the legislation as directed by section 3(1) of the Human Rights Act.  If it passes this test, so far as the Convention rights are concerned it will be within competence.  The obligation to construe a provision in an Act of the Scottish Parliament so far as it is possible to do so in a way that is compatible with the Convention rights is a strong one.  The court must prefer compatibility to incompatibility.   This enables it to look closely at the legislation to see if it can be explained and operated in a way that is compatible and, if it is not, how it can be construed so as to make it so.

The scheme of the legislation
  
25.	Before addressing the question of what section 275A means it is necessary to look more broadly at the scheme of the group of sections of which it forms part.  This is because section 275A must be read in the context of the legislation as a whole.  It will also be necessary to identify, so far as possible, the purpose for which it was enacted.  To take an extreme example, it would be very difficult to regard a provision affecting the fairness of a trial which was arbitrary or vindictive as compatible with the accused’s rights under article 6.   The task is assisted if a rational explanation can be given for it.  This directs attention to the real issues that need to be examined to answer the question whether it is compatible with the right to a fair trial.

26.	The common law recognises that an accused has the right to cross-examine the prosecutor’s witnesses and to give and lead evidence.  So too does article 6(3)(d) of the Convention.  Prima facie all evidence which is relevant to the question whether the accused is guilty or innocent is admissible.  The fact that the accused did what he did without the consent of the complainer is one of the essential elements of the sexual offence charged which the prosecutor must establish.  So the accused must be given an opportunity to cross-examine the prosecutor’s witnesses and to give and lead evidence on that issue.  That is an essential element of his right to a fair trial.  But the common law failed to provide a satisfactory answer to the question how far the accused might go in the exercise of that right, and doubts were expressed about the way the original sections 274 and 275 worked in practice.  The substituted sections 274 and 275 have been designed to regulate questioning of the complainer more closely.  Other models for legislation of this kind exist.  Section 276 of the Canadian Criminal Code, as amended in the light of the decision of the Canadian Supreme Court in R v Seaboyer [1991] 83 DLR (4th) 193, is one.  Section 41 of the Youth Justice and Criminal Evidence Act 1999, which applies in England and Wales, is another.  Sections 274 and 275 are loosely modelled on those examples, although the detailed wording is different.

27.	The sections seek to balance the competing interests of the complainer, who seeks protection from the court against unduly intrusive and humiliating questioning, and the accused’s right to a fair trial.  They lean towards the protection of the complainer.  The protection is very wide.  It extends to questions and evidence about the complainer’s sexual behaviour at any time other than that which forms part of the subject matter of the charge.  It extends also to behaviour which is not sexual behaviour at any time other than shortly before, at the same time or shortly after the acts which form part of its subject matter which might found the inference that the complainer consented to those acts or is not a credible or reliable witness.  But the court is permitted, in the accused’s interest, to admit such evidence or allow such questioning if it is satisfied that it passes the three tests which are set out in section 275(1).

28.	The important point to notice is that such questioning or the admission of such evidence will only be permitted if the court has been persuaded that it passes those three tests.  The purpose of section 275 is to ensure that the accused will receive a fair trial, notwithstanding the restrictions that are imposed by section 274.  The three tests are designed to achieve that purpose consistently with the proper administration of justice which, as section 275(2)(b) makes clear, includes the appropriate protection of the complainer’s dignity and privacy.  A court which is satisfied that all three tests are met will have concluded that the questioning or evidence relates only to specific matters which are relevant to establishing whether the accused is guilty and are of significant probative value.  To deny the appellant the opportunity of questioning or the admission of evidence which passes all three tests risks denying the accused a fair trial.

29.	Section 275A affects the balance between the accused and the complainer in a different way.  The mischief which sections 274 and 275 seek to address is the drawing of impermissible inferences from behaviour which does not form the subject matter of the charge about the complainer’s credibility and reliability on the issue of consent.  Evidence or questioning which passes the three tests will necessarily be evidence from which inferences as to the complainer’s credibility or reliability may properly be drawn.  The court would not have admitted the evidence or permitted the questioning if it were otherwise.  But most sexual acts take place in private.  All too often the issue of consent depends on one person’s word against the other.  What then if the accused himself has committed a criminal offence similar to that which forms the subject matter of the charge on some other occasion from which inferences could be drawn about his credibility and reliability on this occasion as against that of the complainer?  The accused is, of course, presumed to be innocent until proved guilty according to law.  Article 6(2) writes that common law right into the Convention.  But decisions of the Strasbourg Court indicate that a wide margin of appreciation is allowed to the contracting states as to their rules of evidence, and that permitting an accused’s criminal record to be available to the court prior to a finding of guilt does not of itself violate article 6: Kostovski v Netherlands (1989) 12 EHRR 434, para 18; Unterpertinger v Austria (1986) 13 EHRR 175, para 20.

30.	The scheme which section 275A adopts is similar to that which is adopted in sections 274 and 275, in that a general rule is subject to modification by the court in the interests of a fair trial.  The prosecutor is directed to lay any previous relevant conviction before the judge, and the judge is required to lay it before the jury or to take it into consideration unless the accused objects.  The main ground of objection, leading aside special cases, is that the disclosure or the taking into consideration would be contrary to the interests of justice.  But there is a presumption that, unless the contrary is shown, it is in the interests of justice for this to be done: subsection (7).  In order to understand how this system was intended to work, the purpose that the legislation was intended to serve must be examined more closely. 

The purpose of the legislation

31.	The effect of section 275A is that, subject only to his right to object on the ground that this would be contrary to the interests of justice, an accused who has succeeded in persuading the court to admit any evidence or permit any questioning which is of a kind that satisfies the three tests in section 275(1) opens himself up to the disclosure of his record of previous convictions for sexual offences, if he has any.  There is no precise parallel for this result in the legislation in the other jurisdictions.  But the admission into evidence of the accused’s previous convictions is not new.  

32.	The general rule, first introduced by section 67 of the Criminal Procedure (Scotland) Act 1887, is that previous convictions against the accused are inadmissible: section 101 of the 1995 Act.  But section 266(4) of the 1995 Act, which continues in force a provision first introduced by section 1(3) of the Criminal Evidence Act 1898, allows questions to be put to an accused who gives evidence on his own behalf showing or tending to show that he has committed, or been convicted of, or has been charged with, an offence other than that with which he is then charged if he attacks the character of the complainer, impugns the conduct of the prosecutor or represents himself falsely to be of good character.  And section 270 of the 1995 Act, which continues in force a provision first introduced by the Criminal Justice (Scotland) Act 1995, allows the prosecutor to lead evidence that the accused has committed, or been convicted of, or has been charged with offences other than that for which he is being tried where evidence led by the defence or its nature or conduct is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.  Section 270 appears to have been scarcely, if ever, used.  The Lord Justice General said there was no previous decision in regard to the giving of permission under that section: 2006 JC 47, para 11.  But there is no doubt that its purpose, as the annotator to section 270 in Current Law Statutes observed, is to provide a balanced picture.

33.	The same concept, that of balance, lies behind the enactment as part of the law of England and Wales of section 101 of the Criminal Justice Act 2003.  Care must, of course, be taken when reference is made to the laws of evidence in that jurisdiction.  For example, Scots criminal law has never admitted similar fact evidence: contrast Director of Public Prosecutions v P [1991] 2 AC 447.  Evidence of that kind was considered by the House of Lords in R v Z [2000] 2 AC 483 where the appellant, who was charged with rape, had been charged with rape on four previous occasions but convicted only once.  The prosecutor wished to lead evidence from the complainants on each of the four previous occasions, included the occasions when he had been acquitted, of the appellant’s conduct towards them.  This was held to be admissible for the purpose of showing that he was guilty of the offence for which he was being charged.  But Hume, Commentaries of the Law Respecting Crimes, vol II, p 413 states:

“On the part of the prosecutor, it will hardly be maintained, that he is entitled to throw in the balance against the panel, a proof of his general bad fame, whether in respect of temper, or honesty, (unless where there is a charge of habite and repute a thief) or licentious habits, or any other vice of disposition.”

In my copy of the Commentaries there is a note in the margin by Lord Justice Clerk Hope beside this passage which summarises the law on this point, as it was then seen to be, succinctly:

“The character cannot aid proof of the individual offence.” 

It cannot, of course, provide corroboration in support of the case which is being made by the prosecutor.  But aiding proof of the offence in other ways is another matter.  The law is open to development in that respect so long as this is compatible with the right to a fair trial.

34.	It is worth noting that the law of England and Wales relating to evidence of bad character has undergone a significant reform, from which lessons may be learned as to how section 275A ought to be applied in practice in Scotland compatibly with the accused’s article 6 Convention rights.  The rule at common law was that evidence of the accused’s bad character, other than that relating directly to the offence charged, was inadmissible: Makin v Attorney General of New South Wales [1894] AC 57.  Thereafter the law was developed in a piecemeal way by the common law and by statute.  The matter was referred to the Law Commission under section 3(1)(e) of the Law Commissions Act 1965.  Its report, Evidence of Bad Character in Criminal Proceedings (Law Com No 273) (2001), to which a draft Bill was attached, laid the basis for Chapter 1 of Part 11 of the Criminal Justice Act 2003 which is headed “Evidence of Bad Character”.  

35.	Section 101 of the 2003 Act is based on the Law Commission’s recommendations.  It provides that such evidence is admissible if, but only if, one or other of seven conditions are satisfied, the last five of which are the subject of further definition in sections 102 to 106.  The conditions that must be satisfied are the following:

“(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.” 

36.	Of these, the one which is most closely related to what section 275A provides is condition (d), as to which section 103(1) provides that for the purposes of that condition the matters in issue between the defendant and the prosecution include:

“(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.”

Section 103(2) provides that, where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may be established by evidence that he has committed an offence of the same description, or of the same category, as the one with which he is charged.  Section 103(3) provides that subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

The December 2001 letter

37.	The Executive’s Consultation Paper had originally proposed that disclosure of the accused’s previous sexual convictions should be automatic after a successful application by the accused to introduce evidence about the complainer’s character or past behaviour.  But, as the Deputy Minister of Justice explained in his December 2001 letter to the Convener of the Justice 2 Committee, this was thought on further consideration to be too sweeping.  It was pointed out that the Scottish system of criminal justice was adversarial in nature and that it relies on juries in serious cases:

“Without some judicial control, there would be a danger that individual juries would react in a very negative way to a criminal record which was not really that similar to the offence currently being tried.” 

38.	Further details were given in that letter about the purpose of the legislation.  It states that the existing law about evidence of previous convictions was seldom used in sexual offence trials, that there was a perception that judges are reluctant to grant applications and that in practice the prosecution did not often make them.  It asserts that a balance must be struck between the rights of the accused, the complainer and the wider community.

“It is in the public interest that accused who have in fact committed sexual offences are convicted, and are not allowed to escape justice by unduly one-sided criticism of the complainer’s character or behaviour.”

The principle that the accused should continue to have his previous convictions kept secret was acknowledged.  But he ought to accept that this cuts both ways.  

“Where the accused argues successfully that evidence of the complainer’s history is admissible, the prosecution should, in principle, be able to disclose the accused’s own past record.

39.	The letter then refers to the proposal that there should be a presumption that disclosure was in the interests of justice.  It would however be open to the accused to overturn this by satisfying the court that it would be unfair in the circumstances of his case for his record to be revealed.  It was indicated that the purpose of this procedure was to overcome the lack of applications under sections 266 and 270:

“If the court was simply required to consider disclosure, without any presumption, there would be a danger that disclosure would still almost never happen.  The existence of a presumption should ensure that a decision not to admit previous convictions in evidence is properly justified.”

It was then stated that the presumption could be overturned on the balance of probabilities, and that the amendment did not restrict the accused in the arguments that he could make to overturn it.

40.	 It is not easy to identify from this letter precisely why it was thought that the accused’s previous conviction for a sexual offence might be relevant to the charge that had been brought against him.  The assertion that there is a balance to be struck between the rights of the accused, the complainer and the wider community repeats the message which was conveyed by the title to the Executive’s Consultation Paper.  The main thrust of the reasoning which it sets out is that the balance needed to be adjusted more firmly in the complainer’s favour to improve the conviction rate.  This is justified in principle by the proposition that, if an accused argues successfully that evidence of the complainer’s history is admissible, the prosecution should be able to disclose the accused’s own past record.  The letter acknowledges that this principle on its own is too sweeping.  It seems to have been appreciated that there was a risk that juries might assume from the fact that there was a previous conviction for a sexual offence, even if it was not really that similar, that is was more likely that the accused was guilty of the offence for which he was being tried.  This suggests, although the point is not stated, that it was thought that a previous conviction which was similar might be used to support a finding of guilt.  That would be an innovation on the use to which previous convictions can be put, as explained by Lord Justice Clerk Ross in Leggate v HM Advocate, 1988 JC 127, 146, where he said:

“In cases where cross-examination of an accused person on his previous convictions or character is permitted the reason is that these may have a bearing on his credibility.  Such evidence is not, however, relevant to his guilt of the offence charged in the indictment.”

41.	Although Scots law does not admit similar fact evidence, the proposition that evidence of previous convictions has a bearing only on the accused’s credibility seems to me, with respect, to understate the use that may legitimately be made of it.  This is a subject which has received far more attention in England than it has in Scotland, mainly due to the English practice which, I think wisely, Scots law has never adopted of giving directions to the jury in the course of a summing up about a defendant’s good character.  The leading authority on this subject is R v Vye [1993] 1 WLR 471.  In that case, at pp 475- 477, Lord Taylor of Gosforth CJ explained that there are two limbs to such a direction: see also p 479F. The first limb requires a direction to be given as to the relevance of his good character to the defendant’s credibility where he has testified or made pre-trial answers or statements.  The second limb requires a direction to be given as to the relevance of his good character to the likelihood of his having committed the offence charged, and it is to be given whether or not the defendant has testified or made pre-trial answers or statements.  A similar analysis of the relevance of bad character is to be found in the Law Commission’s Report, Evidence of Bad Character in Criminal Proceedings, paras 6.10 et seq.  This is that it may be relevant to the defendant’s propensity to act in the manner alleged, and that it may also be relevant to the defendant’s propensity to lie.  

42.	Although this point was not recognised in Leggate and was not addressed directly by the Deputy Minister of Justice in his December 2001 letter, evidence of a previous conviction may have a bearing on propensity to act in a particular way as well as on credibility.  A jury which is told that the accused has a previous conviction for a sexual offence can be expected to regard it as relevant to his propensity to commit other offences of that kind as well as to his credibility.  It can be assumed that the reason why there was widespread support for the Executive’s original proposal, which on reflection was regarded as too sweeping, was the belief that a person who has been convicted of a sexual offence is more likely to offend in this way again.  This is why, under Part 2 of the Sexual Offences Act 2003, the names and addresses of persons of those who have been convicted of sexual offences are placed on the sex offenders register.  The fact that the Executive’s proposal had as much, if not more, to do with propensity as it did with credibility is underlined by the fact that section 275A applies irrespective of whether the accused has given evidence or made any statement before trial.  It is underlined further by the fact that the only convictions which are treated as relevant are convictions for an offence to which section 288C of the 1995 Act applies or those in which a substantial sexual element was present: section 275A(10).  Convictions for perjury, for example, which would have an obvious bearing on the accused’s credibility are excluded.

43.	I would hold therefore that section 275A must be approached on the basis that the main reason why previous relevant convictions are to be disclosed or taken into consideration is because they may be regarded as relevant to the accused’s propensity to commit other sexual crimes.  A further reason is that they may have a bearing on the accused’s credibility, if this is put in issue, as compared with that of the complainer.  It is in the light of these aims that the question whether it is in the interests of justice for the convictions to be disclosed or taken into account must be addressed.  As the Law Commission explained in its Report, Evidence of Bad Character in Criminal Proceedings, para 12.10 when it was designing the scheme that has been enacted in sections 101-106 of the Criminal Justice Act 2003, the court is required by that scheme to have regard to certain specific factors designed to limit the introduction of evidence on a tit-for-tat basis to those cases where it is truly required.  The question whether section 275A is compatible with the accused’s right to a fair trial depends on whether it is open to the court to take the same approach when it is considering an objection under section 275A(4)(b).  

What does the legislation mean?

44.	There are a number of points under this heading that must be addressed.  A judge who is considering an objection under section 275A(4)(b) must understand the effect of the presumption that, unless the contrary is shown, the disclosure or the taking into consideration of a relevant previous conviction is in the interests of justice.  Then he must know what tests are open to him to apply in order to determine whether the accused has rebutted that presumption.  To have reached that stage he will have had to construe sections 274 and 275.  It is not possible in this case to resolve all the issues of construction that may arise.  But several issues were raised in the course of the argument which have a bearing on the extent of the restriction which these sections impose.  I agree with all that Lord Rodger of Earlsfery has said about them.  I wish to add only a few brief comments of my own before turning to the issues of construction raised by section 275A.  The first relates to the meaning of the word “behaviour” in section 274.  The second relates to the first test that must be satisfied in section 275(1).
  
45.	The meaning of the word “behaviour”, with reference to what constitutes non-sexual behaviour for the purposes of section 274((1)(c), was considered by the High Court of Justiciary in Moir v HM Advocate, [2007] HCJAC 20; 13 March 2007.  There was a division of opinion among the members of the Appeal Court.  Lord Johnston said in para 21 that the word “behaviour” was all embracing and habile to cover not only any form of conduct but also the making or issuing of statements.  Lord Eassie said in para 43 that he had come to the conclusion that the word should not be given a restricted meaning and that it could include statements made by the complainer which reflected on her credibility or reliability.  But Lord Marnoch said in para 48 that he could not agree that non-sexual behaviour embraced all statements emanating from the complainer.  It would include conduct such as shouting or screaming or verbal abuse of one sort or another, but it would not include statements such as remarks made or things said in the course of daily life.  He added that if the legislation were to be construed in that way the freedom of questioning would not be unduly hampered and applications under section 275 kept within reasonable bounds.

46.	This question has, as Lord Marnoch observed, a direct bearing on the extent to which the accused must resort to section 275 before he can put questions that are directed to the complainer’s credibility or reliability.  This in turn has a direct bearing on the compatibility of section 275A, in view of the consequences that will inevitably flow from having to make an application under section 275 if there is a relevant previous conviction.  So it is one on which the Board can express its opinion when it is determining the devolution issue.  I think that the majority in Moir gave too wide a meaning to the word “behaviour” in this context.  On their interpretation, evidence that the complainer told a third party that she had consented to the acts charged would be inadmissible unless it was allowed under section 275.  Evidence to that effect would, of course, have a bearing on her credibility.  But, so confined, it would not intrude upon her dignity and privacy: see section 275(2)(b)(i).  In my opinion restricting the accused’s rights as to the evidence that may be led or questions put to that extent, bearing in mind what section 275A provides, would be incompatible with his right to a fair trial.  I would hold, reading the word so far as possible in a way that is compatible with the accused’s article 6 Convention right, that it did not extend to evidence that is directed simply to words that the complainer may have said to a third party which bear on her credibility or reliability.  As for the phrase “sexual behaviour” in section 274((1)(b), I agree with the Lord Justice Clerk’s observation in the earlier case of Moir v HM Advocate, 2005 1 JC 102, para 27 that any doubt as to whether it extends to a prior course of cohabitation between the accused and the complainer must be removed when the phrase is read with section 3 of the Human Rights Act 1998. 

47.	The question raised by the way the first test in section 275(1) is expressed in that subsection is whether the words “a specific occurrence or occurrences of sexual or other behaviour” are qualified by the words which follow “demonstrating” in the latter part of the subsection, or whether the words which follow qualify only the words “or to specific facts”.  In MM v HM Advocate, 2004 SCCR 658, para 40 Lord Macfadyen inserted a comma between the words “or other behaviour” and “or to specific facts” – the “invisible comma” – which made it clear that only the words which followed it were so qualified.  Here again the accused’s Convention rights are in issue.  In my opinion the placing of a comma between these words is necessary to avoid an undue restriction on the accused’s right to a fair trial.

48.	Turning to section 275A(7) in particular, I consider that it ought to be read, compatibly with the accused’s article 6 Convention right, as doing no more that set out the default position that will apply if the accused does not make an objection on the ground mentioned in para (b) of subsection (4).  There is no burden on the accused to do more than make the objection.  If an objection is made the court must consider it on its merits as an objection made under that paragraph.  Of course, the weight that is attached to it will depend on the issues raised and the information that is laid before the court to support it.  But the presumption should be disregarded by the court once it has reached the stage of deciding what weight it should attach to the objection.

49.	Section 275A, unlike section 103(1) of the Criminal Justice Act 2003 for England and Wales, does not seek to identify the factors to which the court must address its mind when it is considering whether the disclosure of the conviction or its taking into account would be contrary to the interests of justice.  It would not be right to attempt to lay down any specific factors that the court must take into account.  But it should bear in mind that the words “the interests of justice” should be read, in this context, as directed primarily to the accused’s right to a fair trial.  This issue should be addressed in the light of what I have already said about the reasons why previous convictions for sexual offences or an offence in which a substantial sexual element was present may be relevant.  The objection should be tested in the light of what use may properly be made of the conviction with regard to the accused’s propensity to commit the offence charged, and what use may properly be made of it with regard to his credibility if he were to give evidence or has made exculpatory statements before trial.  The test needs to be exacting in proceedings on indictment, in view of the risk that the jury may attach a significance to the conviction which, due to its age or other factors, it cannot properly bear.  

How does the legislation work?

50.	Section 275A is silent as to when in proceedings on indictment, if the objection is unsuccessful, the relevant previous conviction is to be laid before the jury.  The timing of this step is important, as the accused may decide not to pursue the questioning or to lead the evidence for which permission has been given under section 275.  The Lord Justice General said that this should not happen unless and until the accused leads the evidence or puts the questions which have been allowed on his application: 2006 JC 47, para 9.  I agree that the conviction should not be disclosed to the jury unless and until that stage is reached.  It will be for the judge to decide when it would be appropriate for this step to be taken thereafter, bearing in mind fairness to the accused as well as to the complainer.

51.	Before he reached this stage, however, the judge will have had to deal with the objection, if the accused wishes to displace the presumption.  Section 275A is silent as to what information, if any, may be taken into account apart from the facts set out in the notice served under section 69(2) or section 166(2) of the 1995 Act and those set out in an extract of the conviction which has been served on the accused or to which reference may be made under subsection (5).  Current practice suggests that this information is likely to fall short of providing the judge with what he needs to decide whether it would be in the interests of justice for the conviction to be disclosed or taken into consideration.  The notice gives the date, place of trial, the court where it took place, the offence and the sentence.  But no details of the offence are given, other than the nomen juris in the case of a common law offence or the statutory provision by which it was constituted.  The Board was shown an example of an extract conviction which indicates that here too the practice is not to include any part of the narrative of the offence of which the accused was convicted.  The matter depends entirely on practice, as the Acts of Adjournal do not provide what an extract conviction must contain.

52.	I do not read section 275A as prohibiting the judge from asking for further information about the nature and circumstances of the conviction if he thinks that he needs to have this to rule on the objection.  The Advocate Depute accepted that the Crown would have no interest in withholding any information in its possession that might be asked for.  I do not think that there can be any objection to providing the judge with a copy of the charge, as amended after trial if amendments have been made to it, narrating the offence of which the accused was convicted.  Nor can there be any objection to including this narrative in an extract of the conviction, based on the court’s own records, which has been prepared for the purposes of section 275A.  For the purposes of this case, therefore, I assume that practice will be developed to allow this to be done.

53.	Section 275A is silent too on what directions, if any, the judge should give to the jury about any relevant previous conviction that may have been laid before them.  But it does not prohibit the giving of directions in the interests of ensuring that the accused will have a fair trial.  Here too I assume that the content of any such directions can be addressed as a matter of practice.  Guidance as to the directions that may be appropriate is to be found in R v Hanson and Others [2005] 2 Cr App R 299, para 18, where Rose LJ (Vice President), giving the judgment of the court in three cases where evidence had been given of previous convictions under section 101 of the Criminal Justice Act 2003, said:

“Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful, the judge in summing up should warn the jury clearly against placing undue reliance on previous convictions.  Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant.  In particular, the jury should be directed: that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions; that, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case.”

A jury in Scotland would, of course, be told that propensity to commit offences cannot provide corroboration in support of the Crown’s case.  As for the rest, the opportunity to give directions along the lines suggested in R v Hanson, which section 275A does not obstruct in any way, is consistent with preserving the accused’s right to a fair trial.     

Conclusion

54.	Taking all these considerations into account, and the reasons given by Lord Rodger with which I agree, I am of the opinion that section 275A, if construed and applied as I have indicated, does not violate the accused’s right to a fair trial.  I would therefore hold that section 10 of the 2002 Act was within the competence of the Scottish Parliament.  I would dismiss the appeal.                                             
____________________

Lord Rodger of Earlsferry
55.	In 2002 the Scottish Parliament passed the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (“the 2002 Act”) which was designed to make significant changes to the procedure and rules of evidence to be applied in trials relating to sexual offences.  An attack on one set of changes, embodied in new versions of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), as being incompatible with article 6 of the European Convention, was rejected in Moir v HM Advocate 2005 1 JC 102.  In the present case another change, in the shape of section 275A in the same Act, is challenged on the same ground.  In my view, for reasons which I shall attempt to explain, this challenge too should be rejected.  The appellant also challenges section 275A as being incompatible with article 14, but that contention is hopeless and I need not enlarge on what Lord Hope of Craighead has said on the matter.  In addressing the main issue, I gratefully adopt his account of the relevant background and legislation.

56.	The Scottish Parliament purported to insert a new section 275A into the 1995 Act by enacting section 10 (“section 10”) of the 2002 Act.  As described in the Statement of Facts and Issues, the devolution issue before the Board is whether section 275A is inconsistent with the appellant’s article 6 Convention right and therefore not law in terms of section 29(1) and (2)(d) of the Scotland Act 1998.  Although nothing really turns on the point in this case, the true issue in terms of section 29(1) and (2)(d) of the Scotland Act is actually whether section 10 of the 2002 Act was not law.  More particularly, was section 10 outside the legislative competence of the Scottish Parliament because it purported to insert into the 1995 Act a provision which was incompatible with article 6?  If that were so, then the 1995 Act would remain unamended in that respect.  I refer to State of Mauritius v Khoyratty [2007] 1 AC 80, 96, para 28, where a similar point arose in connexion with an Act which purported to amend the Constitution of Mauritius.

57.	Sections 7 and 8 of the 2002 Act repealed the old, and inserted new, versions of sections 274 and 275 in the 1995 Act.  In the light of the decision in Moir v HM Advocate 2005 1 JC 102 the argument in the present case proceeded on the basis that these sections now form part of the procedural and evidential law of Scotland.  The aims behind the 2002 Act were fully discussed in the judgment of the Lord Justice Clerk (Gill) in Moir, 2005 1 JC 102, 106-109, paras 10-17, and 112-113, para 29, and were summarised by Lord Justice General Cullen in giving the High Court’s judgment in this case:  HM Advocate v DS 2006 JC 47, 55, para 22.  They were common ground at the hearing before the Board.  In short, the legislation seeks to protect complainers from unfair and intrusive attacks on their character and on their past sexual and other behaviour.  It also aims to prevent the leading of evidence in the belief that a complainer’s previous sexual experience or “bad” sexual reputation makes it more likely that she would have consented to sexual relations with the accused and makes it less likely that she is a credible witness.  Sections 274 and 275 give effect to that policy by restricting the circumstances in which evidence can be led or questions asked, especially about the complainer’s character or about her behaviour on other occasions.

58.	The disputed section 275A is intended to come into play when, having applied all the safeguards in section 275, the court decides to permit the defence to lead such evidence or to ask such questions.  In that situation section 275A presumes that it is in the interests of justice for any previous convictions which the accused has for sexual offences to be laid before the jury - unless the accused objects and shows otherwise.

59.	It is trite that article 6 of the Convention has nothing to say about the law of evidence as such or about the use of evidence of an accused’s previous convictions at his trial.  All that it guarantees is a fair trial.  One of many similar passages making this point is to be found in the judgment of the European Court of Human Rights in Doorson v The Netherlands (1996) 22 EHRR 330, 357-358, para 67:

“The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them.  The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken were fair.”

When judging whether any proceedings were fair, the European Court balances the interests of the defence against those of witnesses or victims called upon to testify:  22 EHRR 330, 358, para 70.

60.	Faced with this settled line of authority, Mr Bovey QC, who appeared on behalf of the appellant accused, did not suggest that section 10 of the 2002 Act was incompatible with article 6 simply because the provision which it sought to insert would authorise the disclosure of the accused’s previous convictions for sexual offences.  Rather, he contended that, by creating a risk that these convictions would be disclosed to the jury, section 275A would penalise the accused for exercising his legitimate right to lead or elicit evidence in terms of section 275(1).  That evidence or questioning was indeed only admissible, under section 275(1)(b) and (c), because it was relevant to the accused’s defence and its probative value was significant and likely to outweigh any prejudice to the proper administration of justice.  At the very least, the risk that their previous convictions would be disclosed in this way would prejudice the right of accused persons to a fair trial by making them hesitate to exercise their section 275(1) right.  Such a penalty was unnecessary and was not a proportionate means of pursuing the justified objectives of the legislation, which were fully satisfied by sections 274 and 275.  Section 10 of the 2002 Act was accordingly incompatible with article 6 of the Convention.

61.	For their part, the advocate depute and the Advocate General contended that laying the accused’s convictions before the jury in these circumstances would not make the trial unfair, not least because the judge was not to allow the convictions to be disclosed if it was not in the interests of justice.  Section 275A made for parity of treatment between the complainer and the accused.  His previous convictions would only be relevant to the jury’s consideration of the credibility of the accused’s position.

62.	By passing section 10 so as to insert section 275A, the Parliament undoubtedly purported to make a substantial change to the procedure and rules of evidence in trials for sexual offences.  Making such changes had  been very much part of the traditional role of the legislature.  Scottish procedural and evidential law is, and always has been, a mixture of common law and statute, with the legislature making changes as and when it thought fit.  Indeed many aspects of the procedures which practitioners today regard as the norm would have been quite unknown to practitioners in the past.  Until Parliament intervened as recently as 1980, for example, submissions of no case to answer at the end of the Crown case were unknown in Scottish practice.  Similarly, until the Criminal Evidence Act 1898, the accused was generally unable to give evidence on his own behalf.  So the mere fact that section 275A might strike practitioners as making a break with established rules and practices is not a relevant consideration for purposes of article 6:  what matters is whether its inclusion in the 1995 Act would prevent accused persons from having a fair trial.

63.	It is as well to remember not only that article 6 does not rule out reference to an accused’s previous convictions before the court reaches its verdict, but also that the common law of Scotland did not do so either.  Until 1887, evidence was routinely led before juries to prove both that the accused had committed the crime libelled against him and that he had committed the same crime on one or more previous occasions - and so deserved a more serious punishment.  The Crown evidence for the aggravation would take the form of an extract of the accused’s previous convictions.  In a trial for theft, evidence of the accused’s previous convictions for theft was also led before the jury where the Crown had libelled that he was habit and repute a thief – another aggravation for purposes of punishment.  See Alison, Principles of the Criminal Law of Scotland (1832), pp 296-307.  In relation to such aggravations, Dickson, The Law of Evidence in Scotland (third edition, 1887), para 15, refers to the general rule against admitting evidence of an accused’s bad character and comments:

“In principle, the admission of such evidence is not an exception to the general rule;  and the Court frequently directs the jury to disregard it in determining upon the main charge.  But in practice juries attach considerable weight to this kind of evidence as bearing on the whole case.”

64.	Parliament changed all this by enacting Lord Advocate Macdonald’s Criminal Procedure (Scotland) Act 1887 (“the 1887 Act”).  Section 67 provided inter alia:

“Previous convictions against a person accused shall not be laid before the jury, nor shall reference be made thereto in presence of the jury before the verdict is returned;  but nothing herein contained shall prevent the public prosecutor from laying before the jury evidence of such previous convictions where, by the existing law, it is competent to lead evidence of such previous convictions as evidence in causa to support the substantive charge, or where the person accused shall lead evidence to prove previous good character....”

From that time onwards, it was no part of the jury’s function when considering their verdict to decide whether the Crown had proved the accused’s previous convictions.  The judge now dealt with that matter after the jury had returned their verdict.  So Scots law entered a new phase in which the accused’s previous convictions were, on the whole, kept from the jury.  In 1975 the relevant part of section 67 was re-enacted in section 160 of the Criminal Procedure (Scotland) Act 1975 (“the 1975 Act”).  From there it found its way into section 101(1) of the 1995 Act which is in force today.

65.	Of course, it has always been open to the accused and his representatives to introduce evidence of his previous good character in the hope of persuading the jury that he was not the kind of person who would have committed the crime in question.  Where that evidence was misleading, the Crown could lead contrary evidence of the accused’s previous bad character.  Burnett, Criminal Law (1811), p 533, says:

“neither is general character to be made the subject of evidence against the prisoner, unless where it is brought to meet a proof of general character offered on his part.”

Dickson, The Law of Evidence in Scotland, para 15, says:

“But the prosecutor is never permitted to attack the prisoner’s character, unless the latter has set it up;  and even then he very seldom goes beyond cross-examining the prisoner’s witnesses on the point” (emphasis added).

In the 1887 Act Parliament clarified the position by positively providing in section 67 that the Crown could lead evidence of the accused’s previous convictions where he led evidence to prove his previous good character.  There was no requirement for the Crown to obtain the leave of the court before doing so.  This provision was retained in section 160(2) of the Criminal Procedure (Scotland) Act 1975.

66.	The important thing to notice is that Parliament enacted this restriction to section 67 of the 1887 Act at a time when the accused could not himself give evidence and when his judicial declaration was only admissible as evidence against him.  So Parliament could not have intended the evidence of the accused’s bad character to be used for the purpose of assessing his credibility.  Of course, the evidence was intended to help the jury to assess the credibility and reliability of the defence witnesses’ evidence that the accused was of good character.  But it was not simply designed to neutralise that evidence.  The sting of the provision – and, presumably, its intended deterrent effect – lay in the fact that the Crown evidence could go further and show that the accused was actually a man of bad character who had previously been convicted of crimes.  The jury must have been expected to take this evidence into account when considering all the other evidence in the case and deciding whether the Crown had proved that the accused had committed the crime in question.

67.	The Criminal Evidence Act 1898 introduced a wholly new question.  Since the accused could now give evidence, could he be cross-examined so as to show that he was of bad character or had previous convictions?  The general rule was that he could not.  But section 1(f)(ii) allowed the prosecutor to apply to the court to cross-examine the accused on his previous convictions not only where he had led evidence of his good character but also where the nature or conduct of the defence had been such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution.  This provision was consolidated as 141(f)(ii) of the 1975 Act and again in section 266(4) of the 1995 Act.

68.	In section 24(2) of the Criminal Justice (Scotland) Act 1995 Parliament, in effect, brought the power of the Crown to lead evidence of the accused’s previous convictions under section 160(2) of the 1975 Act into line with the power in section 141(f)(ii).  It did so by widening the former provision to cover cases where the defence led evidence or asked questions impugning the character of the prosecution witnesses or where the nature or conduct of the defence involved such an attack.  At the same time the new section included a requirement for the Crown to obtain the permission of the court before leading this evidence.  On consolidation, this wider provision became section 270 of the 1995 Act and was made an exception to section 101(1).  For the same reasons as applied to the original provision in section 67 of the 1887 Act, evidence led under this extended provision – which comes into play even if the accused does not go into the witness box – cannot simply have a bearing on his credibility.  It must also be intended to provide material for the jury to take into account in reaching their overall conclusion as to whether the Crown has established the accused’s guilt.

69.	The opinion of Lord Justice Clerk Ross in Leggate v HM Advcocate 1988 JC 127 shows how the Scottish courts had adopted an interpretation of section 1(f)(ii) of the Criminal Evidence Act 1898 and section 141(f)(ii) of the 1975 Act which was more favourable to accused persons than the one adopted by the English courts.  Although in Leggate the Full Bench changed that and adopted an interpretation which was in line with previous English and Commonwealth authority, experience and anecdotal evidence suggest that in practice remarkably little changed under section 141(f)(ii) of the 1975 Act or under its successor, section 266(4) of the 1995 Act.  Presumably, as the Lord Justice Clerk confidently expected, at p 147, prosecutors exercised “a wise judgment” as to whether it was “really necessary in the particular circumstances to invite the court to exercise its discretion in favour of the Crown….”  Similarly, little use was made of the Crown’s power to apply to lead evidence of previous convictions under section 270 of the 1995 Act.  When passing section 10 of the 2002 Act, the Scottish Parliament was aware of how little use prosecutors and judges had made of these powers which Parliament had given them to make the jury aware of an accused’s previous convictions.  The Parliament sought to prevent the same fate befalling its new measure on disclosing previous convictions for sexual offences by including in section 275A(1) an obligation on the prosecutor to lay the previous convictions before the judge.  This was coupled with a presumption in subsection (7) that disclosure of a conviction would be in the interests of justice.  In my view, having regard to what had happened in the past, the legislature was entitled to adopt this approach and the presumption, such as it is, would have a legitimate role to play.  The rights of the defence under article 6 would be fully protected since the accused would have the opportunity to persuade the court that disclosing his previous convictions, or any particular conviction, would be contrary to the interests of justice.

70.	Section 275A would only apply to an accused who had been given permission to lead evidence or to ask questions under section 275.  Since it is intended to operate as a response to the successful invocation of section 275, it is necessary to understand the true effect of sections 274 and 275.  Mr Bovey maintained that section 275A was not a rational complement to section 275, which was itself difficult to interpret.  Unfortunately, experience has indeed shown that these provisions are not drafted with the clarity and precision which are to be expected in legislation that has to be applied by busy courts and practitioners and that impacts significantly on the position of both the Crown and the defence.  I confine myself to a few points raised by counsel.

71.	First, section 274(1) forbids the court to admit evidence, or to allow questioning designed to elicit evidence, which shows or tends to show four things, listed in paras (a) – (d), about the complainer.  Conversely, in general terms, section 275(1) permits the court to admit evidence, or to allow questioning designed to elicit evidence, which relates to those four heads.  This is apparent from the reference in section 275(1) to permitting the court to admit such evidence or allow such questioning “as is referred to in subsection (1) of section 274”.  Understandably, therefore, although para (a) of section 275(1) does not reproduce the structure of paras (a) – (d) of section 274(1), it is designed to catch each of the elements listed in those paragraphs.  In particular, it refers first to a specific occurrence or occurrences of sexual behaviour (corresponding to section 275(1)(b)) and then to a specific occurrence or occurrences of other behaviour (corresponding to section 275(1)(c)).  In order to make the provisions correspond in this way, it is necessary to see a comma – now commonly known, the Board was told, as “the invisible comma” - between “behaviour” and “or” in section 275(1)(a).  In my view, that interpretation is correct.  The result is that the words from “demonstrating” to the end of the paragraph modify “specific facts” only and do not modify “sexual or other behaviour”.  The court must therefore be satisfied that the evidence or questioning will relate to specific facts demonstrating the complainer’s character (corresponding to section 275(1)(a)) or any condition or predisposition to which the complainer is or has been subject (corresponding to section 275(1)(d)).

72.	While sections 274(1) and 275(1) are closely linked in this way, as the Lord Justice Clerk pointed out in Moir v HM Advocate 2005 1 JC 102, 111, para 21, they do not coincide completely because section 275(1) allows evidence on the four heads to be led only where the court is satisfied that it meets the cumulative requirements of paras (a) – (c).  Those requirements are designed to exclude evidence which would relate to the four heads but which, in the view of the legislature, should nevertheless be excluded because it does not fulfil one of the requirements, such as being specific rather than general, in paras (a) – (c).

73.	Secondly, as the appeal court pointed out in Moir v HM Advocate [2007] HCJAC 20, any evidence or questioning in a trial must be relevant to the issues to be decided by the jury:  at common law evidence or questioning on collateral matters is generally excluded.  Section 275(1) does not change this;  rather, it lays down certain additional criteria which must be met if the (relevant) evidence or questioning is to be permitted under that section.

74.	Next, as already noted, the aim of section 274 is to restrict unnecessarily intrusive or distressing evidence or questioning relating to sexual or other behaviour which would not serve any legitimate forensic purpose.  Its terms should be interpreted with this general aim in mind.  On the other hand, they should not be interpreted so broadly that the section would restrict evidence or questioning which would obviously always have to be allowed if the accused was to have a fair trial.  As the Lord Justice Clerk said in Moir v HM Advocate 2005 1 JC 102, 113, para 30:
“the protection of the complainer cannot be seen apart from the basic principles of fairness in Scottish criminal procedure which entitle everyone accused of a crime to defend himself, to confront his accusers and to have a fair opportunity to put his own case.”

75.	In the light of that general principle - and despite what the advocate depute described as “misgivings” on the part of the Crown - I have no doubt that the Lord Justice Clerk was correct, in Moir 2005 1 JC 102, 112, para 27, to reject the submission that a period of cohabitation could constitute “sexual behaviour” for the purposes of section 274(1)(b).  Whatever the ultimate significance of such evidence turned out to be, it could never have been the intention of the legislature to prevent an accused from leading evidence or asking questions to show that he and the complainer had at one time lived together.  After all, to say that two people have lived together for five years is to make a statement, not about their sexual behaviour, but about their way of life, which encompasses much more than any sexual relationship.  Equally, to ask whether the complainer formerly lived with the accused for a year is to ask whether they shared a way of life, not to ask about the complainer’s sexual behaviour.  This can be tested by attempting to apply section 275(1)(a) which is designed to allow the defence to lead evidence or to ask questions relating “to a specific occurrence or occurrences” of the sexual behaviour envisaged in section 274(1)(b).  It is really impossible to apply that provision to evidence relating to a period of cohabitation of the complainer and the accused.

76.	The other point which was explored before the Board related to the interpretation of the word “behaviour” in section 274(1)(b).  In Moir v HMA [2007] HCJAC 20 Lord Johnston said, in para 21, that “‘behaviour’ is all embracing and is habile to cover both any form of conduct but also the making or issuing of statements” and added, in para 22, that “it embraces any form of conduct including statements emanating from the complainer in the context of the case in the most general terms.”  In para 43, Lord Eassie held that the term “behaviour” must “include statements made by him or her, provided of course that those … statements are relevant to whether the complainer was likely to have consented to the sexual acts alleged or reflect upon his or her credibility or reliability.”  Take, for example, a statement by a complainer who says in conversation with a friend some time before the incident, “I have always loved him” (referring to the accused).  Seeking to apply the approach of the appeal court, the advocate depute argued that evidence of this statement would constitute evidence of sexual behaviour for the purposes of section 274(1)(b).  Prima facie it would therefore be inadmissible.  Similarly, evidence that the complainer had said to a friend, some time after the incident, “I consented to the sex”, would constitute evidence of “other behaviour” in terms of section 274(1)(c) and prima facie would also be inadmissible.

77.	I very much doubt whether Lord Johnston or Lord Eassie would have intended “behaviour” to cover either of these statements.  But, in any event, I would reject any interpretation which would produce such extraordinary results.  It would not only put entirely unnecessary fetters on the conduct of the trial but would turn section 275 applications into a potential nightmare for both practitioners and judges.  Even more significantly, perhaps, it would risk making sections 274 and 275 incompatible with an accused’s article 6 right to deploy his defence.  In my view Lord Marnoch was right to say, at para 48, that “behaviour” relates in the first instance to things done rather than things said in the course of everyday life.  Whatever psychoanalysts might contend, for the purposes of section 274(1)(b) and (c), a woman who simply tells her friend in casual conversation that she has always loved the accused is not engaging in sexual or any other kind of behaviour.  Similarly, a complainer who tells her friend that she consented to the sex with the accused is not “behaving” but saying something – and something which the legislature could never have contemplated keeping from the jury.  That would be so, whether she made the statement in the course of casual conversation or when specifically challenged about the matter.  This is not, of course, to say that making a statement can never form part of some relevant sexual or other behaviour by a complainer which would be covered by section 274(1)(b) or (c).  Lord Marnoch gave the example of a complainer making a statement in a bout of shouting or screaming or in the course of verbal abuse of one sort or another.  Again, it takes no great powers of imagination to conjure up statements which a complainer might make in the course of flirtatious or seductive conduct and which would constitute, or form part of, some “sexual behaviour” in terms of section 274(1)(b).  Equally, making a statement in order to make someone jealous could constitute “other behaviour” in terms of section 274(1)(c).  But, in general, statements will not count as “behaviour” for purposes of section 274(1).

78.	Provided the restrictions in section 274 are not interpreted too broadly, sections 274 and 275 constitute a balanced response to the problem which the legislature set out to tackle and one which is consistent with the accused’s article 6 rights.  When the court gives the appropriate permission under section 275(1), the defence may lead evidence or ask questions about the complainer’s character, condition or predisposition or about what the complainer did some time before the incident which forms the subject-matter of the charge.  As subsection (1)(b) indicates, if the jury accept the evidence, it will be relevant to establishing whether the accused is guilty of the offence with which he is charged.  Plainly, the evidence is not admitted simply for its bearing on the credibility of the complainer as a witness.  If that had been the legislature’s intention, it would have spelled it out.  Moreover, one of the purposes of enacting sections 274 and 275 was precisely to counteract the view that evidence of a complainer’s sexual experience or bad character in sexual matters was an indication that the complainer was not a credible witness in such matters.  Where the evidence is admitted, the jury must simply be entitled to take into account what the complainer’s character or condition or predisposition was, or how she had behaved before or after the incident in question, when deciding whether the Crown has proved the accused’s guilt of the crime charged.  For example, the jury would be entitled to consider whether or not the fact that the complainer had indulged in some sexual act with the accused on another specific occasion cast light on whether she would have consented to the sexual act forming the subject-matter of the charge against the accused.

79.	With this aspect of section 275 in mind, I return to section 10 of the 2002 Act which purports to introduce section 275A.  The Board was favoured with a considerable amount of background material relating to section 10, including consultation papers, the results of consultation, reports of committees of the Scottish Parliament and reports of proceedings in the Parliament itself.  For my part, I prefer to concentrate on the wording of the provision which is – or should always be – the best indication of the effect of the legislation.  The general effect of section 10 is not in doubt:  it is intended to introduce a section which provides for the accused’s previous convictions for sexual offences to be laid before the jury in solemn proceedings or to be considered by the judge in summary proceedings.  One difficulty – or supposed difficulty – is in deciding what the jury or judge is supposed to make of the previous convictions.

80.	Before addressing that question, I must deal with Mr Bovey’s principal submission that section 275A would be an illegitimate fetter on an accused’s right to lead evidence or to ask questions under section 275 and so would be incompatible with article 6.  Even where the court granted permission to lead such evidence or to ask such questions, the pressure created by section 275A meant that an accused might decide to forgo this opportunity rather than risk having his previous convictions revealed.  In my view, this pressure on the accused and his representative would be no greater – indeed would actually be, in some ways, less - than the pressure which sections 266(4) and 270 are intended to produce.  Those sections are also deliberately drafted so as to make the accused and his representative think before taking a step that could lead to the disclosure of the accused’s previous convictions.  Admittedly, section 275A is different because the Crown does not need to take the initiative and the accused must persuade the court that it is not in the interests of justice for his convictions to be disclosed.  But, as section 275B indicates, in solemn proceedings the intention is that applications under section 275 and any objections under section 275A should usually be dealt with in advance of trial.  As the High Court held, 2006 JC 47, 51-52, para 9, even if the court repelled the defence objection, the previous convictions would only be laid before the jury if the defence actually led the evidence or asked the questions in the course of the trial.  So before the trial the accused and his advisers would have time to consider what they should do in the light of the court’s ruling.  That luxury is not available under section 266(4) or section 270 when all the decisions have to be taken in the course of the trial.  In that respect at least, under section 275A the pressure might not be so great.  For these reasons I do not consider that any pressure which section 275A would create would make the accused’s trial unfair for the purposes of article 6.

81.	Mr Bovey also submitted that the Scottish Parliament had not been presented with any coherent justification for the introduction of section 275A.  The Deputy Minister of Justice had told the Parliament that, where the accused had insisted on bringing in evidence about the complainer’s past, the court should also receive relevant information about the accused’s history in order to give a balanced picture.  On the other hand, the Deputy First Minister had subsequently indicated that the previous convictions would go to the credibility of the accused and the sheriff or jury could take them into account when deciding what they made of the accused and whether they believed him.  The two supposed justifications were inconsistent with one another.  In these circumstances it could not be said that the Parliament had been presented with a rational justification for passing section 10.

82.	In Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 and R (SB) v Governors of Denbigh High School [2007] 1 AC 100 the House of Lords has made clear that the decision on the compatibility with the Convention rights of any legislative provision or of any action of a public authority does not depend on the anterior reasoning of the body concerned.  If the court examines the matter objectively and comes to the conclusion that a provision or action is indeed compatible with the Convention, the fact that the reasoning of the decision-maker may have been flawed is irrelevant for Convention purposes.  So, here, any inconsistency in the explanations given to the Parliament would not, of itself, make section 10 incompatible with article 6.  Essentially what Mr Bovey was arguing, as I understood him, however, was that section 10 of the 2002 Act had not been thought through properly and, as a result, section 275A would operate arbitrarily.  This would be incompatible with article 6.

83.	On one view, some of the submissions of the advocate depute and of the Advocate General did little to dispel the allegation that section 275A would work in an irrational and arbitrary fashion.  The core of the problem lay in their insistence that the accused’s previous convictions would only have a bearing on his credibility – in line with the approach of Lord Justice Clerk Ross in giving the opinion of the court in Leggate v HM Advocate 1988 JC 127, 146 on the, significantly different, provision in section 141(f)(ii) of the 1975 Act.  The advocate depute was asked how this could be so when section 275A would take effect even in cases where the accused did not give evidence and the Crown did not lead evidence of any mixed statement made by him.  His only reply was to say that this was the most difficult question.  In my view, however, the advocate depute’s entirely understandable inability to devise a sensible answer to the question simply shows that his starting-point was wrong.  The position is much the same as with section 270 and its predecessors, which I have examined already.  The fact that section 275A would operate even where there was no evidence or statement by the accused shows that his previous convictions would not be intended to have a bearing only on his credibility.

84.	This conclusion is confirmed by another prominent feature of section 275A:  the only previous convictions which would be laid before the jury would be previous convictions for sexual offences.  As Lord Brown of Eaton-under-Heywood pointed out during the hearing, such a limitation would make little sense if the only purpose of adducing the previous convictions was to attack the accused’s credibility.  For that purpose previous convictions for dishonesty or for, say, perjury would be much more to the point.  Yet they are quite deliberately excluded.  The only sensible conclusion is that the jury are entitled to have regard to the accused’s previous convictions when deciding whether the Crown has proved its case.  In other words, when assessing the credibility and reliability of the evidence on which the Crown relies, the jury are entitled to take account of the fact that, on one or more occasions, the accused was prepared to go further than the law permits in pursuit of sexual pleasure.  Of course, where the accused has made a mixed statement or gives evidence, the fact that he has previously offended in this way may also have a bearing on the credibility of his version of events.

85.	This interpretation also helps to explain why section 275A would come into operation where evidence was led or questions were asked under section 275.  Such evidence or questioning would concern the complainer’s character or condition or predisposition, or her sexual or other behaviour on other occasions.  The jury are entitled to have regard to these factors when determining whether the Crown has proved its case against the accused.  Section 275A would provide an element of parity or balance in the treatment of the two sides by giving the jury an opportunity, when considering their verdict, to have regard also to what the accused had done on other occasions.  The balance between the two sides is not perfect:  it is tilted in the accused’s favour since the jury only get to know about his previous criminal sexual misbehaviour.  Any other behaviour or any other aspects of his character or any condition or predisposition are not revealed.

86.	Of course, an accused’s previous convictions are not evidence that he committed the crime with which he is charged.  Nor could they ever constitute corroboration of the evidence given by the complainer and any other witness on whom the Crown relied to prove the crime.  The presiding judge would require to make this clear in his directions to the jury.  The previous convictions would simply be a factor which the jury would be entitled to take into account when deciding whether to accept the evidence led in support of the Crown’s version of events.  If this amounts to a limited departure from the usual Scottish rule against adducing evidence of similar facts, then it is one which the legislature is entitled to make.  The courts have accordingly no power to strike down the provision and must simply apply it, provided - as is plain – it is compatible with article 6.

87.	For these reasons, as well as for those given by Lord Hope, I am satisfied that section 10 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 was within the powers of the Scottish Parliament and was accordingly law.  The appeal must therefore be dismissed.

____________________

Baroness Hale of Richmond

88.	I entirely agree, for the detailed reasons given by my noble and learned friends, Lord Hope of Craighead and Lord Rodger of Earlsferry, that this appeal should be dismissed. I wish only to emphasise two points.

89.	First, the question before us is whether an enactment of the Scottish Parliament is, or is not, the law. It is a strong thing for any court to declare an enactment of a democratic legislature invalid. The only possible basis upon which we could do so in this case is that it is incompatible with the Convention rights: see Scotland Act 1998, section 29(2)(d). The Convention rights are those set out in the Articles of the European Convention on Human Rights and its Protocols which are listed in section 1(1) of the Human Rights Act 1998. That Act turns the listed rights into rights in our domestic law but the substance of those rights is derived from the Convention. 

90.	As Lord Bingham of Cornhill has pointed out on more than one occasion, the fact that the Convention is an international treaty has various consequences. One is that the process of implying rights into the Convention which are not expressly there should “be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept”: Brown v Stott [2003] 1 AC 681, at p 703F.

91.	Another is that the role of the national courts in developing those rights is limited, in the way that Lord Bingham explained in a famous passage in R (Ullah) v Special Adjudicator [2004] 2 AC 323, at p 350, para 20, which should never be forgotten by anyone seeking to mount a compatibility challenge to a statutory provision:  

“. . . the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. . . . It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform  throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.” 

92.	This means that we can only rely on the Convention rights as interpreted in Strasbourg as a basis for invalidating the act of a democratic legislature, for it is only incompatibility with those rights which gives us a ground for doing so. The legislature can get ahead of Strasbourg if it wishes and so can the courts in developing the common law. But it is not for us to challenge the legislature unless satisfied that the Convention rights, as internationally agreed and interpreted in Strasbourg, require us to do so. 

93.	We were referred to nothing in the Convention jurisprudence which begins to suggest that Strasbourg would find a trial in which these provisions were invoked to be a violation of the right to a fair trial guaranteed by article 6. The rules of procedure and evidence vary so widely between the states party to the Convention that the Strasbourg court is usually content to leave these matters to the national authorities, provided always that the fundamental requirements of a fair trial are observed. 

94.	There is nothing intrinsically unfair in a court hearing evidence of an accused person’s character and conduct, provided that it is relevant to something which the court has to decide. Our historic reluctance to trust the jury with this information arises from the fear that they may give it more weight than it deserves or regard it as proving that which it does not prove. The answer to that does not have to be to withhold it from them; they can be given clear and careful directions about how to use it.

95.	Secondly, there is another consideration in judging compatibility in cases like this. The Convention is often about striking the right balance – usually between the interests of the community and the rights of individuals but sometimes between the rights of different individuals. There is a positive obligation under article 8 to protect the physical and moral integrity, including his or her sexual life, of every individual. As the Strasbourg court held in X and Y v The Netherlands (1985) 8 EHRR 235, para 27:

“This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable to this area and it can be achieved only by criminal law provisions; indeed it is by such provisions that the matter is normally regulated.” 

That case was about a legal system which denied effective protection to a mentally disabled young woman. But a legal system which allows wide-ranging cross examination about the sexual history of a complainant, clearly aimed at prejudicing the jury against her, while prohibiting any attack upon the sexual history of the accused person, might one day be held to be incompatible with the effective deterrence required by article 8. 

96.	In any event, I find it quite impossible to say that the balance struck by the Scottish Parliament in enacting these provisions is incompatible with the Convention rights.  

____________________

Lord Carswell

97.	I have had the benefit of reading in draft the opinions prepared by Lord Hope of Craighead and Lord Rodger of Earlsferry, with which I agree.  For the reasons which they have given I would dismiss the appeal.

____________________

Lord Brown of Eaton-under-Heywood

98.	I have had the advantage of reading in draft the opinions of my noble and learned friends, Lord Hope of Craighead and Lord Rodger of Earlsferry and I gratefully adopt their very full exposition of the detailed legislative and factual context in which the present devolution issue arises.  This enables me to say the comparatively little I want to say really quite shortly.

The issue

99.	The central issue, as my Lords have explained, is whether section 275A of the Criminal Procedure (Scotland) Act 1995 (inserted into that Act by section 10 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002) is compatible with the appellant’s right to a fair trial under article 6 of the European Convention on Human Rights.

The appellant's argument

100.	The appellant’s central argument for contending that section 275A is incompatible with article 6 comes essentially to this.  By virtue of sections 274 and 275 of the 1995 Act (as amended) anyone accused of a sexual offence needs the court’s permission before questioning witnesses or adducing evidence designed to impugn the complainer’s character or to show that she (or he) is likely to have consented to the act(s) complained of or is otherwise not to be regarded as a credible or reliable witness (I simplify, but sufficiently accurately for present purposes).  This permission will not be given unless three conditions are satisfied:  first, that the proposed evidence or question relates to specific occurrences or facts; second, that the occurrences or facts “are relevant to establishing whether the accused is guilty of the offence with which he is charged”; and third, that the evidence has significant probative value.  In short, the accused in a sexual case will only ever be permitted to adduce or elicit evidence liable to impair “a complainer’s dignity and privacy” (which these provisions are designed to protect—see section 275(2)(b)) where the court adjudge this to be necessary for the proper conduct of the defence.

101.	Section 275A, however, immediately then imposes upon the accused a penalty for having secured the court’s permission to defend himself properly: by stipulating that whatever previous convictions of a sexual nature he may have will be disclosed to the jury (or, in summary proceedings, taken into consideration by the judge) when otherwise they would not have been.  True, the accused has the opportunity to try to persuade the court that such disclosure “would be contrary to the interests of justice” (section 275A(4)(b)).  But the presumption is that their disclosure will be in the interests of justice (section 275A(7)) and in any event the legislation clearly contemplates and intends that sometimes at least disclosure will be ordered.

102.	This, submits the appellant, is necessarily unfair and inappropriate.  Even assuming that the court rules on the section 275A issue in time for the accused to have the opportunity not after all to adduce or elicit the evidence about the complainer for which permission has been granted under section 275 (and the opportunity, therefore, to keep his criminal record from the jury), this, he submits, is not a choice which the legislation should, or properly could, require him to make.  Rather, having won the initial ruling that the evidence is required to enable him to defend himself properly, he submits that no inhibition should thereafter be put in his path; he should not be subjected to the pressure of having to choose between two evils: either forgoing the opportunity to advance his defence properly or allowing the jury to learn of his previous convictions of which otherwise they would have remained in ignorance.
 
The argument considered

103.	Plausible and beguiling though at first blush this argument may appear, it is to my mind founded upon a central fallacy.  The long and the short of it is that the accused has no fundamental right to keep his past convictions from the jury.  There is nothing intrinsically unfair or inappropriate in putting these into evidence and, indeed, in doing so not merely on the limited basis that they go only to the accused’s credibility (the fiction which to my mind disfigured the administration of criminal justice in England and Wales for far too long, now at last ended by the Criminal Justice Act 2003—see particularly sections 101(1)(d) and 103(1)(a)) but on the wider ground that they bear also on the accused’s propensity to commit offences of the kind with which he is charged.

104.	Take the case of an accused with a previous conviction for rape now standing trial again for the same offence.  Assume that he had pleaded guilty to the earlier offence but is contesting the present charge on the ground that the woman consented.  His previous conviction plainly indicates a propensity (a preparedness, if only on a single past occasion) to have his way with a woman whether or not she consents and to this extent no doubt it bears upon the credibility of his present defence of consent.  But its real and substantial relevance is as to the likelihood of his having committed this fresh offence: of this being a true charge rather than a false accusation.  And this surely is no less clear in a case where the first offence was contested rather than admitted.

105.	I have to say that the sole respect in which section 275A is to my mind open to possible criticism is that it applies only to cases where the accused needs and is granted permission to advance his defence along particular lines, i.e. as provided for by sections 274 and 275.  Accused persons in other cases seem to me needlessly and sometimes inappropriately advantaged by the marked reluctance of the law to allow plainly relevant evidence, as previous convictions often are, to be put before the jury.

106.	But this is very far from saying that section 275A can be impugned as arbitrary or irrational.  On the contrary it seems to me to make a healthy start to what may eventually become the wider sort of reform achieved south of the border by the 2003 Act.

Result

107.	For these short reasons, as well as the fuller reasons given by Lord Hope and Lord Rodger, I too would dismiss this appeal.