Act: Kerrigan QC, Pike; Philip Rooney & Co

Alt: Wade, AD; Crown Agent

22 May 2013

[1] On 9 March 2012, at the High Court in Edinburgh, the appellant was found guilty, by a majority verdict, of a charge that:

"(1) on 17 February 2011 at [XX], Newtongrange, Midlothian you ... did assault [JM] c/o Lothian and Borders Police, Dalkeith, Midlothian, seize her on the neck, thus restricting her breathing, push her onto a sofa, restrain her, lower her nightwear ... and penetrate her vagina with your penis all to her injury, and you did thus rape her; CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009."

[2] In this appeal against conviction the appellant has presented two grounds of appeal. The first is that at a preliminary hearing on 28 October 2011 the judge erred in refusing an application made on behalf of the appellant under section 275 of the Criminal Procedure (Scotland) Act 1995. The evidence and questions which the appellant had thereby been prevented from leading or putting to the complainer related to the circumstances of an allegation of rape made by the complainer in December 2002. In the same ground of appeal it is argued the trial judge also erred in refusing the application when it was effectively renewed in the course of the trial. In the second ground of appeal, it is argued that a miscarriage of justice has resulted from what is said to have been certain improper conduct by the trial advocate depute in circumstances where he knew that the section 275 application had been refused and that those acting on behalf of the appellant could not refer to the circumstances described in it.

[3] In the course of a careful report to this court the trial judge has summarised the evidence given in the trial as follows:

"Circumstances of the offence

At the time of the alleged offence the appellant was an employee in a convenience store in Newtongrange, Midlothian. The complainer, who was aged 30, was a customer of the shop who lived nearby with her daughter [B], who was then aged 11. The complainer had met the appellant at the shop a month or two before the date of the incident. Although the appellant listened to and gave evidence at the trial through an interpreter, it appears that his command of English was sufficiently good to strike up a friendly relationship with the complainer. From time to time they would chat and smoke together outside the shop. On one occasion the appellant invited the complainer to come to his flat in Leith for a meal. The complainer accepted the invitation but on arrival with her daughter she discovered that the appellant had no food in his flat. In the end the three took a taxi to the complainer's house in Newtongrange where they ate a takeaway together and the appellant by invitation stayed the night because this would be convenient for his work at the shop the following morning. The appellant spent the night in the complainer's bedroom and the complainer slept with her daughter in the latter's bedroom. The complainer denied that she and the accused had sexual intercourse on this occasion or on a subsequent occasion when he again spent the night at her house.

On the day prior to the date of the incident which formed the basis of the charge, the complainer had visited the shop to buy cough medicine for [B]. She invited the appellant to come for a drink that evening. The appellant arrived at her house at around 9pm after finishing work in the shop. The complainer had indicated to him earlier in the day that she would again allow him to stay overnight at her house as he would be working at the shop the following morning. The complainer and the appellant drank alcohol, played with a karaoke machine and watched television. Although [B] had been in bed unwell, she was allowed to come through and join them for a while in the living room. [B] later went to her bedroom where she watched a DVD; the complainer went through from time to time to check on her.

By now it was the early hours of the morning. According to the complainer's account, she and the appellant watched a DVD together while still laughing and talking. She then showed the appellant to her bedroom with the intention that he would again sleep alone there while she would sleep with [B]. The complainer spent some time with [B] in her bedroom. She then returned to the living room, assuming that the appellant had gone to bed. She had another drink and began to tidy the cushions of the couch. At this point the appellant reappeared. He approached the complainer from behind and pushed her face down on to the couch. She fell forward and her mouth struck the corner of the couch. Her face was buried in a cushion. She thought she knew what was about to happen and protested, albeit quietly as she did not want [B] to hear what was happening. Specifically, she said to the appellant 'Please don't - I thought we were going to be friends'. She was sure the appellant would have heard. He pushed her further up the couch and pulled down her pyjama trousers. She felt a sharp pain inside her vagina. The appellant then penetrated her vagina from behind with his penis. She was crying but did not shout or scream. However, [B] (who gave evidence at the trial by video link) did hear noises and a high-pitched scream and came through to the living room. According to her account, she saw the appellant pushing her mother into the cushions of the couch. He was standing behind her putting his penis inside her from behind. She ran over and began to punch the appellant, while shouting at him and trying to drag him off her mother. The appellant released the complainer and she got up and went with [B] into [B]'s bedroom. The appellant lay down on the couch and fell asleep.

[B] was upset and insisted that the complainer telephone the complainer's mother, who lived nearby, to tell her what had happened. The complainer was reluctant to do so and attempted to persuade [B] that everything would be okay once the appellant had left the house. (It is relevant to note here that according to the evidence [B] spent a significant proportion of time living with her grandmother rather than her mother and appears to have placed greater faith in her grandmother's judgment than that of her mother.) Eventually the complainer acceded to [B]'s demands and called her mother. She told her mother that she had been raped but did not want anyone to know. She asked her mother to come to her house, but urged her not to call the police. However when the complainer's mother became aware that the appellant was still in the complainer's house she took it upon herself to call the police. By now the appellant had woken up and shortly after the telephone calls were made he left the house. The police arrived and found the complainer and [B] in a distressed state. Having been given an account of events, they went to the shop where the appellant worked and detained him. He remained in custody thereafter until trial.

Case for the defence

The appellant gave evidence. He accepted that he had had sexual intercourse with the complainer on the night in question but insisted that it had been consensual. According to his version of events, he and the complainer had begun a sexual relationship on the first night when he stayed at her house. They had also had sexual intercourse on one further occasion prior to the date of the incident forming the basis of the charge. On the night of the incident they had spent the evening drinking and dancing in the complainer's house. [B] went to bed at around 1.00/1.30 am, and about an hour and a half later he and the complainer had sexual intercourse in the living room. The appellant decided to go to bed in the complainer's bedroom but she persuaded him to come back through to the living room where they began drinking again. At some point in the course of the night the complainer gave the appellant a love bite on his neck. They danced and kissed for a further 2-3 hours and then began to have sexual intercourse again on the couch. Before he had reached the point of ejaculation, [B] entered the living room and started crying and shouting and threatening to tell the complainer's mother what she had seen. The complainer reassured the appellant that everything would be okay and he slept for a couple of hours on the couch. When he left the house to go to work in the morning he noticed nothing untoward about the demeanour of the complainer or her daughter.

In his address to the jury Mr Wheatley invited them to prefer the appellant's account of events to that of the complainer. He suggested, not implausibly, that the complainer's version left too much time during the night unaccounted for; that the reactions of the various people in the house after the time when [B] found them together in the living room were not consistent with the commission of the crime of rape; and that the lovebite on the appellant's neck (which bore traces of the complainer's DNA) was indicative of consensual sexual activity for which the complainer had no explanation.

However, it seems that the majority of the jury did not accept the appellant's version and were satisfied to the requisite standard that the offence of rape had been committed, although as noted above certain words alleging non-penile penetration of the complainer's vagina were deleted from the indictment."

[4] It is clear from that summary that there were in this case several apparently strong bases upon which the credibility of the complainer could have been, and was, attacked. However, as the trial judge himself has stressed, it is plain that a majority of the jury cannot have accepted the appellant's account, must have accepted as credible and reliable the evidence of the complainer in material respects and must have been satisfied that the Crown had proved the charge to the requisite standard on credible and reliable corroborated evidence. And we think it right to stress that it is not a ground of appeal before this court that no reasonable jury could have convicted (and the whole notes of evidence have not been extended). Rather, as indicated at the outset, the appeal is restricted to the two grounds referred to. We deal with each of these in turn.

The first ground of appeal

Background Circumstances
[5] Prior to the trial, the agents then acting on behalf of the appellant presented an application under section 275 of the 1995 Act. The application sought (a) the admission of evidence (and questions) that the complainer and the appellant had had a sexual relationship on dates in February 2011 leading up to the date of the incident alleged in the charge. This was not opposed by the Crown, and was granted. Part (b), which was opposed, sought the admission or eliciting of evidence,

"that ... the complainer ... has previously made an allegation of rape on 28 December 2002. This allegation was investigated by officers of Lothian and Borders Police. The specific allegations were made to Police Constable Sarah Hamilton. During a meeting with Detective Sergeant Derek Fulton on the 10 February 2003 the complainer admitted lying to the police about the allegation of rape. The complainer was subsequently prosecuted for making a false representation to the police."

The application explained the reasons why the evidence (and questioning) was considered to be relevant as being:

"The evidence that is sought to be elicited relates to an allegation of the same type of behaviour and crime that is alleged against the applicant. The complainer made a direct admission that she had lied about the allegation of rape in 2002 to a police officer. The admission or fabrication of an allegation of rape is directly relevant to the jury's assessment of the complainer's testimony."

[6] On 28 October 2011, in the High Court at Perth, the application came before Sheriff Principal Bowen QC, sitting as a Temporary Judge, at a preliminary hearing. At that hearing the detail of the events in 2002 (and early 2003) were summarised by the advocate depute (based, it seems, on a police report of 4 April 2003 which had been provided to the defence) as follows:

"The complainer had been with friends in the High Street of Dalkeith. She was 'removed' by two men in a car; she had not wished to report the incident but her friends did, and the complainer 'ultimately' made a complaint of rape to the police. However, she refused to be medically examined and her clothes could not be found. CCTV evidence cast some doubt on the veracity of what she had said, and she appeared to be 'dancing' when she got out of the car. She then asked the police if she would 'be in any trouble' if she dropped the allegation, and did so, giving an explanation that she and her friends had been taking ecstasy and amphetamines. She was subsequently charged with wasting police time, but the case did not proceed to trial."

[7] Before this court the full terms of the police report were made available. It is agreed that the judge at the preliminary hearing was not afforded a sight of the report. While there is nothing to suggest that the information which was made available to him was not an accurate summary, it is right, in fairness to the appellant, to record that in the body of the report, and in relation to the date when, it is said, the complainer withdrew her allegation, (10 February 2003), it is reported that she "explained that she had told lies in relation to her account", and that, having been cautioned, she is reported to have said:

"I'm really sorry, Derek, but we all took drugs that night and although I thought that it happened I realised that it didn't and because they lied about being on drugs and made up their statements thinking they would be helping me I panicked about saying so."

[8] We record also that it is agreed between the parties that although the complainer appeared on summary complaint in relation to a charge of wasting police time, proceedings were on 19 March 2004 discontinued by the procurator fiscal.

[9] In so far as the application related to the events of 2002 and 2003 it was refused at the preliminary hearing. In the course of giving his reasons, and after reference to a number of authorities including Thomson v HM Advocate 2010 JC 140, Sheriff Principal Bowen QC said:

"There is no rigid rule that evidence of a previous unfounded or untruthful allegation by a complainer in a rape case falls to be regarded as inadmissible at common law. Nor could there be; it is perfectly conceivable that there might be a clear connection in time and circumstance between such an earlier allegation and that before the Court. The case of Green is entirely consistent with this. The alleged making of previous false allegations was said to be a symptom of the complainer's psychiatric disturbance, all of which brought her credibility into question. There was no suggestion from a distinguished Bench or an eminent Lord Advocate who appeared for the Crown that the evidence of previous unfounded allegations was inadmissible.

In that situation I am satisfied that the evidence upon which Mr Auchincloss [the defence agent] seeks to found might be admissible at common law; but it does not appear to me to be necessary to determine whether it would or would not be since the question of whether to admit it falls, on any view, given the nature of the application, to be determined by reference to the three stage test contained in section 275(1). In that respect I consider that even if the proposed evidence or questioning relates to the complainer's character (stage one) it is at best doubtful whether the occurrence of the event is relevant to establishing whether the accused is guilty of the crime with which he is charged given the interval in time between the events and the different nature of the circumstances (stage two). But even if I am wrong in that I have no difficulty in holding that I am not satisfied that '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 from its being admitted or elicited' - the third stage of the test as desiderated by sub-section (1)(c).

In the first place evidence of a false allegation by the complainer some 9 years ago, even if relevant to the present allegation, could not be categorised as other than of limited probative value given the different circumstances of the allegation. Secondly notwithstanding the sincerity of Mr Auchincloss' assurance that the evidence could be restricted to the one question of whether the complainer had lied on a previous occasion, the whole circumstances of the earlier complaint as outlined by the Advocate Depute appear to me to [be] capable of raising any number of questions relating to the motivation for making of the complaint; whether there was any substance in it, and why it was eventually withdrawn. Frankly, it appears to me that to open this can of worms would result in something of a 'trial within a trial', and is precisely the sort of distraction which the provisions of section 275(1)(c) are intended to avoid.

For these reasons I am not prepared, in the exercise of my discretion, to admit the line of evidence contained in part 1(b) of the section 275 application."

[10] In the course of the trial, and in particular in the course of the cross-examination of the complainer by Mr Wheatley QC, who then appeared on the appellant's behalf, the complainer (having been asked on a number of occasions whether she had always told the truth in respect of the events of 2011) was asked "Has there ever been a time when you have not told the police the truth?". When she answered "No" (albeit it at a time when the notes of evidence suggests the advocate depute was already rising to his feet to object to the line), Mr Wheatley immediately moved the trial judge to grant the section 275 application which had earlier been refused. This, it was argued, could be said to be a fresh application in the changed circumstances provided by the witness's most recent answer. Although the statutory basis for the application was not spelled out in the course of argument (reference instead being made to the trial court's "discretion"), it may be that Mr Wheatley was seeking, as did counsel in similar circumstances in CJM (No. 1) v HMA [2012] HCJAC 83, to show special cause under section 275B(1) of the 1995 Act for making in the course of the trial what could be regarded as a fresh application albeit in the same terms as that which had been refused.

[11] The trial judge refused the application as incompetent. He was not satisfied that there had been any change of circumstances. He took the view that the effect of the ruling of the judge at the preliminary hearing was that the complainer could not be asked the very question which it was said had given rise to the change. He took the view that the defence had effectively attempted to engineer a change of circumstances by asking that question. He added, for the sake of completeness, that he was:

"... not satisfied that I should take any different view of this from what was taken at the preliminary stage, and I am not satisfied that it has been demonstrated that there is any reason for disagreeing with the decision which was given by Sheriff Principal Bowen, so I am not going to allow this line of questioning to proceed."

Submissions
[12] Before this court Mr Kerrigan QC argued that the judge at the preliminary hearing had erred in refusing the application. Further he argued that the trial judge had also erred in refusing the application when it was made to him. He readily recognised that the majority reasoning in the recent five judge opinion of this Court in CJM (No. 2) v HMA [2013] HCJAC 22 (in particular the reasoning in the opinions of the Lord Justice Clerk, Lord Menzies, Lord Brodie and Lady Cosgrove) made plain the restricted scope at common law for similar attacks on the character, or prior truthfulness in other circumstances, of a complainer, quite apart from the additional hurdles provided by section 275. Under reference, nevertheless, to the opinion of Lady Cosgrove, where (at para [59]) she said:

"I agree that the principle behind the exception of allowing 'instantly verifiable' material must be capable of being extended to admit evidence of a conviction for a crime such as wasting police time where the complainer has made a previous false report in relation to an event similar to that charged on the indictment. The principle must also, in my view, be capable of being extended to allow evidence of an admission by a complainer of having previously made such a false allegation provided that admission was unequivocal and unqualified and related to a similar event.",

he submitted that the information to which the appellant wished to refer could be said to come within the latter extension of the exception referred to.

[13] The advocate depute submitted that the judge at the preliminary hearing had been well entitled to refuse the application for the reasons which he gave. Above all, she stressed that there were very significant differences between the apparent events of 2002 and the events which were the subject of the 2011 charge - apparent both on the information before the judge at the preliminary hearing and manifest from the full terms of the police report. The complainer was only 20 at the time of the apparent event in 2002. The apparent allegation was of having been transported against her will by four men in a car and raped by two of them. Her purse and its contents were also, it was said, taken from her. The apparent evidence suggested that she was extremely intoxicated with alcohol and had taken drugs. It appeared at the outset that she had refused to give any statement to the police. She was not able to identify any of her alleged assailants by name, other than that one of the men in the car was said to be "Paul". She refused at any stage to undergo a medical examination. Within a reasonably short space of time, she contacted the police herself and withdrew the allegation. For these reasons, and absent any conviction of the complainer arising out of the circumstances, the application should in any event have been refused at common law. It was also important to note that all that was available was a police report. It was not known at the time the section 275 application was heard, nor even now, what the complainer's position was and whether she would, and if so to what extent, accept that her previous apparent allegations were false. If the circumstances of 2002 had been referred to at all, in fairness to the complainer the whole background to her state at the relevant time would require to have been explored, the Crown having information to suggest that she was at that stage in a particularly vulnerable state as a result of a history of apparent sexual abuse by a third party.

Discussion
[14] We have come to the view that this ground of appeal must be refused. As has been said many times, the question for decision on an application of this kind is one essentially of fact and degree for the presiding judge. The question for judges on appeal is not whether they would have reached the same decision. An appeal court will interfere only if it can be said that no reasonable judge could, on the facts presented, have reached the decision which was made (see eg Thomson v HMA 2001 SCCR 162, at para [16], Wright v HMA 2005 SCCR 780, at para [8], and CJM (No. 1) v HMA at para [22]).

[15] We are quite unable to say that the judge at the preliminary hearing was not entitled to reach the decision he did. In particular he was, on the information before him, entitled to have regard to the apparently considerable differences between the circumstances of the events in late 2002 and early 2003 and those the subject matter of the 2011 charge. Further, even the briefest study of the police report suggests that all of the points made by the advocate depute in this connection were well justified. Indeed it appears to us to be strongly arguable, in light of the recent decision of CJM (No. 2) v HMA, that the application should have been refused at first instance at common law (not, on the face of it, relating to a collateral fact which could be demonstrated more or less instantly and could not be challenged - see e.g. the Lord Justice Clerk at para [32]). Not only was there no previous conviction for wasting police time or the like (see in particular the opinion of the Lord Justice Clerk at paras [32] and [33]), but we are not persuaded that the circumstances, so far as known, could be said to have amounted to an unequivocal and unqualified admission in relation to a similar event, such as was envisaged by Lady Cosgrove. Quite apart from the considerable differences already alluded to, the only information available at the time the application was considered was the police report, and that remains the case. The report itself was not agreed as being accurate. As the advocate depute stressed it is not known what the complainer's position in response to questioning would be. The limits of using such a report as the basis for a similar proposed line of questioning (even when intended to be restricted) were fully described in CJM (No. 1) v HMA (at para [21]) and appear to us to be equally present in the instant case. It may be noted that when the application was presented in the course of the trial, Mr Wheatley was not, on the face of it, confident that the complainer would necessarily accept that her previous allegation of rape was in all respects false. What he submitted, by contrast, was that the questions which he wished to ask would reveal either that the allegation of rape, or its withdrawal, was false.

[16] Nor are we persuaded that it could be said that the trial judge erred in refusing the application made to him as incompetent. In the event the submissions made on behalf of the appellant on this matter were not, it appeared to us, strongly pressed. The trial judge was, in our view, perfectly entitled to take the view that there had been no relevant change of circumstances (certainly none sufficient to justify the application at that stage). Indeed, he was, in our opinion, perfectly entitled to take the view that the line of questioning in cross-examination which prompted the application was the very line which had specifically been prohibited by the judge at the beginning of the hearing (if not, in any event, more generally by the terms of section 274 of the 1995 Act).

The second ground of appeal

Background circumstances
[17] This ground of appeal was not contained in the original note of appeal. It arises out of certain remarks made in the trial judge's report to this court, and was allowed to be received, and argued, only on the day of the hearing of the appeal.

[18] In his report to this court, the trial judge, after describing how he came to refuse the application which was made to him in the course of the complainer's cross-examination, writes as follows:

"Matters did not, however, end there. It should be noted first of all that in the course of examination in chief of the complainer, she had been asked by the Advocate Depute whether she had any reason to make a false allegation, and also whether she had been told that if she decided to stop the process of the prosecution she would not be in any trouble. She answered these questions in the negative and affirmative respectively. I did not regard them as exceptionable and they were not objected to. However, when the appellant gave evidence, the issue of a false allegation was raised again by the Advocate Depute in cross-examination. It was put to the appellant that the complainer might be embarrassed about being discovered by [B] but would not go on to make a false allegation of rape. He was then asked further questions about the consequences for the complainer of insisting in her allegation , and in particular whether he was aware of any reason why she would not withdraw the allegation if it was false. This line was not objected to by the defence but before the last question above was answered I intervened to ask the Advocate Depute whether he intended to pursue the line further. My intention, if he had indicated that he did, was to warn him that I might be sympathetic to an application by the defence to reopen the issue of the complainer's previous prosecution. The line was not pursued.

Much to my surprise, the Advocate Depute returned to this matter towards the end of his address to the jury. He invited the jury to consider whether, if the complainer's allegations had been false, it would not have been easier for her to bring the whole matter to an end, and invited them to conclude that there was no reason for her to persist with an invented account. I have to say that, in view of what had gone before and in particular the background of the unsuccessful section 275 application, I regarded this as improper. I sought to deal with it in my directions to the jury (page 4) in the context of the standard direction not to speculate on matters in respect of which there had been no evidence.

Looking at the whole matter with the benefit of hindsight and in view of the way in which the trial was conducted on behalf of the Crown, I now have a very real concern that the exclusion of evidence regarding the complainer's previous prosecution for making a false allegation of rape has resulted in a miscarriage of justice. If that evidence had been available to the jury it would have been open to the defence to invite the jury to consider a scenario in which

· the complainer and the appellant were discovered by [B] having sexual intercourse which was in fact consensual;

· because [B] was distressed by what she had seen, the complainer told her untruthfully that it had not been consensual;

· the complainer did not want to tell her mother about the incident but eventually had to do so because of [B]'s insistence;

· when the complainer did tell her mother she begged her mother not to tell the police;

· the complainer's mother telephoned the police against the complainer's express wishes;

· by this sequence of events the complainer found herself once again in the situation of making a false complaint of rape to the police;

· she had reason, by virtue of her previous prosecution, to fear the consequences of withdrawing the complaint

It would obviously have been a matter for the jury to evaluate the plausibility of such a scenario. My own view is that it is by no means unlikely that the jury (or a majority thereof) would have regarded it, when taken together with the whole other evidence in the case, as creating sufficient doubt to preclude a guilty verdict.

For these reasons, I respectfully support this appeal."

[19] We make a number of preliminary observations on these remarks.

[20] In the first place, in the scenario described by the trial judge it is plain that the first five matters identified by bullet points were already available to, and were, it seems, deployed by, the defence in attacking the credibility of the complainer. These, on the face of it, gave the defence a strong basis for suggesting the complainer had in the particular circumstances of 2011 found herself in the situation of making a false complaint of rape to the police. The only bullet point which would have depended in its entirety on evidence as to 2002 and 2003 is the last.

[21] Secondly, as to the description of lines of evidence pursued and arguments made by the advocate depute, we have had the advantage of seeing the relevant notes of evidence and of the advocate depute's speech to the jury, and we are satisfied that the trial judge's report provides an accurate summary (save that as regards the cross examination of the appellant the trial judge intervened in the way he reports only after the appellant had twice said he did not know, in answer to questions as to whether, if the allegation was false, it would not have been easier for the complainer to withdraw it). His concern as to what he regarded as improper conduct (although the reasons for his concerns are not, it seems to us, fully articulated) is mainly, it would appear, directed to the speech of the advocate depute. In these circumstances it is important that we quote from the relevant passage in full. Having invited the jury to consider the difficulties which the complainer would have faced in pursuing the allegation of rape to trial (in particular the fact that she was interviewed at length by police on intimate matters, was subjected to an internal examination, and was examined and cross-examined about how the apparent trauma of the events had affected her in her own life and in her relationship with her daughter) the advocate depute said:

"If [JM's] allegations were false, in these circumstances, the personal circumstances of herself and her family, would it not have been easier for [JM] just to bring the whole thing to an end, because [JM] said in evidence that she'd been told by the police and by the procurator fiscal that she could stop at any time and that would be fine, she wouldn't be in any trouble.

Now, these are all matters for you, ladies and gentlemen, but I would ask you to consider them in your deliberations, and I would invite you to find [JM's] account of what happened to her on the morning of 17^th February, as set out in Charge 1 on the indictment, to be both credible and reliable. Her account has, on the material points, been consistent, even when that might be seen to go against her. Her account is supported by the evidence of her daughter. It is consistent with the de recenti statement she made to her mother. It is consistent with the distress that she exhibited, and it is completely at odds with the evidence that the accused has given in this place. No proper reason has been offered to you why she would fabricate an account and persist in that false account, and I would suggest to you that there isn't one. There simply isn't a good reason."

[22] Lastly, by way of preliminary observation, in so far as the trial judge refers to how he sought to deal with matters in his directions to the jury, it is plain that he did so not merely by giving general directions to the effect that the jury must not speculate. He also said (at page 4):

"And in this connection there is one matter on which I would like to give you a specific direction. You may recall yesterday that in the advocate depute's address to you he made reference to the consequences for [JM] of making this complaint and then persisting in it, and you were invited to consider whether it would not have been easier for her to bring this to an end before it reached court. Now I have to direct you that that would be speculation and that you should not allow your assessment of that evidence, of the evidence which has been placed before you, to be influenced by that kind of consideration."

Submissions
[23] Before this court Mr Kerrigan argued that the conduct of the advocate depute, as described by the trial judge, and as particularly articulated in his speech, could be said to have been unfair and prejudicial to the defence of the appellant, given that, as he knew, those representing the appellant could not refer to the circumstances of 2002 and 2003. The advocate depute was, it was submitted, inviting the jury to consider questions for which there were further possible explanations referable to the circumstances of 2002 and 2003. On closer questioning, senior counsel's concern was that the defence would have wished, in the face of the line taken by the advocate depute, to seek to answer, by reference to the events of 2002 and 2003, the suggestion (a) that the complainer had no cause to invent the allegation against the appellant and (b) that she had no cause to persist in a false allegation. As to the latter, which was more strongly founded upon, those acting for the appellant would have wished to suggest, as one reason, the fact that she had been charged before with wasting police time and would have wished to avoid that again, and, further, that she would have wished to avoid telling her mother again that she had not in fact been raped (the police report apparently suggesting that her mother was present when discrepancies in her initial account, in particular as to the duration of events, were put to her by the police in January 2003, and when, so the report suggests, she was unable to provide a good explanation for these inconsistencies).

[24] For her part the advocate depute strongly resisted the suggestion that there had been any improper conduct by the advocate depute during the trial.

Discussion

[25] We have anxiously considered the submissions made on behalf of the appellant, particularly in light of the views which have been expressed by the trial judge. We have nevertheless come to the view that the conduct of the advocate depute could not be said to have been improper.

[26] Provided he did not seek to suggest or imply that the complainer had not made a false allegation of rape before or that she had not previously sought to withdraw such an allegation, and confined himself to the facts and circumstances particular to the case before the jury, the advocate depute was, in our view, perfectly entitled to invite the jury to consider, against the evidence which did relate to these 2011 circumstances, if there was any reason why she would wish to make an allegation of this kind against the appellant and as to why, if the allegation was false, she had in this case persisted with it in the face of the difficulties thereby created for her. In this and other similar cases, where the credibility of the complainer is the central issue, the Crown could not, in our view, be inhibited from taking that line simply because an application under section 275 relating to certain earlier and different circumstances had been refused, notwithstanding that it would be known that the agents for the accused would have wished, in other circumstances, to seek to take advantage of those earlier circumstances. And it has to be emphasised that there was no objection taken at any stage during the trial, or in the original note of appeal, to the advocate depute's conduct.

[27] The matter goes further than that when the specifics of the appellant's concerns are considered.

[28] As to whether the complainer would have any reason to make up the allegation against the appellant, it is not clear to us how any reference to the earlier apparent circumstances would have assisted the defence. It is true that the information in the police report relating to 2002 might be thought to be capable of suggesting that the complainer had then felt under pressure to maintain an allegation first reported to the police by others, but the circumstances in which her young friends had, according to the police report, come to make their reports, were very different from those which led her mother to make the specific complaint to the police in the present case. There was, for example, evidence in the police report to suggest the complainer's friends had also taken drugs on the night in question, but had, to the knowledge of the complainer, denied that to the police when they made their first report; indeed that they declined to give detailed statements as to what had happened when the police next attended. In short, the same reasons which in our view reasonably led to the refusal of the section 275 application would have continued to apply to any further attempt to explore the very different circumstances of the previous events, in this and in other respects.

[29] Further, as to the complainer's apparent persistence, one factor relied on by the advocate depute in the present case to suggest that the complainer had no reason to persist in her allegations against the appellant, if false, was the evidence obtained by him from the complainer in examination in chief, without objection and by questioning which the trial judge himself did not regard as exceptionable, that she had been told by the police and the procurator fiscal that if she did not want to go through with it she could stop and that she would not be in any trouble. Indeed, that was the factor the advocate depute specifically asked the jury to consider in his speech. Inviting the jury to consider whether it would not have been easier for the complainer just to bring the whole thing to an end (if false) "because of" that specific reassurance cannot, in our view, properly be described as inviting the jury to speculate. Further, even if the risks of seeking to open up the chapter of events in 2002 and 2003 (which led to the refusal of the section 275 application) are set aside, it is not obvious to us how, in the face of the assurance which the complainer had apparently been given in relation to the specific circumstances of the present case, any reference to her earlier prosecution (albeit one that was discontinued) would have assisted the defence. Indeed we doubt whether it would have been helpful to the defence at all to enable the jury to draw a contrast between her persistence in the present matter with her apparent withdrawal, within a reasonably short time, of the previous allegations.

[30] Nor are we persuaded that there is anything in the claim that the advocate depute's line was unfair because the defence would have wished to raise, as one reason for her persistence, a reluctance to tell her mother again that she had not been raped. In the first place, it is not at all clear from the police report that she did tell her mother that she had not previously been raped, far less what her mother thought of it. Secondly, in any event, the defence already had the line available to them, if Mr Wheatley had wished to deploy it (which it appears he did not), that the complainer would not have wished to withdraw the allegation if it meant telling her mother (to whom the allegation had been reported), or for that reason her daughter, that the allegation was in fact false. Nor do we consider it would have afforded any significant advantage to the appellant to allow the jury's attention to be drawn to the fact that, whatever she may have known of the previous circumstances, the complainer's mother in the present case chose immediately to report to the police the allegation made to her by the complainer when in an apparently distressed state.

[31] Overall, we are not persuaded that there was anything improper in the advocate depute's conduct. Nor would we have been persuaded that any conduct on his part could be said to have led, any more than the decision to refuse the section 275 application, to a miscarriage of justice.

Decision

[32] In all the circumstances, the appeal falls to be refused.