Lord Glennie’s opinion in the recent ‘CH’ appeal ([2020] HCJAC 43) highlights a conflict of judicial thinking, and legal opinion in general, with respect to the Scottish rape shield. Could it be that the real issue is a fundamental lack of trust in the ability of a jury to reach a fair conclusion in such cases? This contention has echoes in the detail of Lord Glennie’s opinion and indeed in the recent address to the Society of Solicitor Advocates by Lady Dorrian. Those echoes reverberate around the fact that the details of the relevant events in any particular case, the res gestae, cannot be fully appreciated prior to the presentation of all the evidence at issue. Yet the preliminary hearing judge must decide on admissibility with respect to a section 275 (Criminal Procedure (Scotland) Act 1995) application prior to, and without being given the opportunity to fully evaluate, the res gestae in its entirety. Something which has been referred to elsewhere as having to make a ‘value judgement’. In order to make this value judgement, the preliminary hearing judge is given the somewhat shoogly tool of s274/275. Why shoogly? First of all, the somewhat cryptic propositions set out in the key test for admissibility are 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 arising from its being admitted or elicited’, where
‘…“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…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.’
These statutory edicts do not lend themselves to ease of interpretation, let alone implementation. Secondly, the legal ‘paradigm’ from which this language derives, namely that probative value must exceed prejudicial effect (from the opinion of Lord Mackay in DPP v P), has become something of a glib legal soundbite (particularly when written in the form PV > PE). This paradigm was never set out as a quantifiable proposition and seems to have lost its more complex basis in case law (all too briefly described as a ‘question of degree’ by Lord Mackay). It has arguably devolved into what amounts to a legal fiction. To briefly elaborate on this, take the situation where section 275 evidence has valid probative value which is favourable to the accused. It acts, in its effect, to diminish the case against him. Any additional, unfair prejudicial effect of that evidence which may elicit some form of bias from members of the jury (for example, on account of the ensuing belief that the complainer is, rightly or wrongly, to be regarded as sexually promiscuous), can act in the same way; namely to weaken the case against him. One can never directly outbalance or outweigh or eliminate the other. Both the probative value and the prejudicial effects weigh in against the complainer. It is entirely possible that the probative value can be greater than, or exceed, the prejudicial effect but that is by no means the same thing. The importance of this can be difficult to explain in a quantitative sense (the ‘question of degree’). It relates to the ‘importance of that issue to the jury’s verdict’ as described in the legislation. Even though the prejudicial effect may be pre-judged to have less significance or be of a lesser value in terms of evidential weight, it could be the thing that makes the difference between a conviction or an acquittal in the collective mind of the jury. It is a matter of how it aggregates with the net weight of evidence in relation to the standard of proof. To put this into an interdisciplinary perspective, believing that prejudicial effects can be directly outweighed, outbalanced, or eliminated by probative value is like an accountant, an engineer or a doctor respectively saying:
1.‘If you owe a £3,000 tax bill and are called to pay a £200 fine, £3,000 is greater than £200, so you don’t need to pay the penalty.’ (In fact, you owe £3,200 and that takes you over the £3,000 threshold for sequestration.)
2. ‘An old road bridge which is rated for a maximum of two tons in weight can support a truck weighing two tons and carrying a half ton load, because two tons is greater than half a ton.’ (In fact, you’ll exceed the two-ton safe working load threshold, and the bridge would collapse.)
3. ‘You’ve had three heart attacks and one more would be fatal, but it’s ok to keep on smoking, overeating and drinking alcohol because three is greater than one.’ (In fact, you’ll pass beyond life’s ultimate threshold).
The threshold in question with respect to the ‘importance of that issue to the jury’s verdict’ in legal terms is the standard of proof. To allow potentially ‘loaded’, or unfairly prejudicial evidence to be admitted at trial is to roll the dice on how the jury perceives it and risk acquitting a guilty party. On the other hand, not to allow it (or even to disallow evidence with a relatively small probative value) may rob the accused of an appropriate measure of evidential weight which could, on its own merit, take the case against him to below the threshold for conviction; upon which theft by omission, an innocent man may be convicted. Until such times as we can fully trust a jury to evaluate potentially prejudicial evidence fairly, or are able to replace it with another means of ‘fact-finding’ by which all the relevant evidence is assessed fairly and collectively (and that is another story), it seems we will be stuck with a shield which acts more like a double-edged sword of Damocles, suspended by the finest of threads and waiting to fall, always pre-emptively and often unjustly, against one side or the other.
