Change to rape law rejected by appeal judges

APPEAL judges have rejected a plea to rewrite the law in rape cases, easing the fears of campaigners that a change could have led to a reduction in the number of successful prosecutions.

Clifford Mearns, 50, claimed he had been denied a fair trial in 2011 when he was convicted of historical sexual offences against three girls and jailed for six years.

One of the victims had made a complaint to police several years before the trial in which she claimed a man - not Mearns - abducted her and took her to woods and tried to force her to have sex.

Later, she had admitted fabricating much of the story and she was charged with wasting police time, although not prosecuted.

Lawyers for Mearns, from Moray, wanted the jury at his trial to hear of the allegation, but the trial judge ruled it was “collateral” and inadmissible evidence.

A bench of five judges considered the issue at the Court of Criminal Appeal in Edinburgh. The case was seen by campaigners for women’s rights as a test of the current law which aimed to protect complainers in rape and sexual assault cases from attacks on their character.

The court heard that the victim had been a child when Mearns abused her. She had gone on to have “significant problems” in her life and in 2006, aged 17, she made the abduction complaint.

It was argued for Mearns that the “fictional” allegation would have been capable of demonstrating to the jury that the woman was predisposed to telling lies of a sexual nature.

Permission can be given for evidence about a person’s “condition or predisposition” to be led at a trial, but the Crown argued that one incident would not be enough to meet the test for allowing it.

The advocate-depute, Gillian Wade, said that the current provisions had the basic objectives of ensuring that evidence of a complainer’s sexual history and/or character was admitted only when it was relevant to the crime charged and would not cloud issues unnecessarily or cause undue prejudice.

She submitted that the proposition that any prior false allegation, no matter how far removed in time and circumstances, could indicate an underlying condition or predisposition to make complaints, ran contrary to the intention of Parliament.

It would “open up a complainer to the risk of having her sexual history and medical history aired in public,” she added.

Lord Carloway, the Lord Justice-Clerk, sitting with Lords Clarke, Menzies and Brodie, and Lady Cosgrove, said: “What is sought to be admitted here is evidence that, at least on one view, has no direct or indirect connection with the facts in issue, but may conceivably affect the weight to be attached to testimony which does have direct relevance to the facts. ..it is evidence of ‘bad character’ with the purpose of undermining the complainer’s credibility.

“The objections to allowing this type of material to be introduced, in the context of the trial of entirely different events involving a different accused, are substantial.

“The two matters appear to be quite separate in nature and, on this ground alone, the court considers that evidence of the 2006 incident ought to have been excluded as collateral at common law.

“To bring evidence within the exception...the ‘condition or predisposition’ requires to be one which is objectively diagnosable in medical, notably psychiatric, terms. The exception cannot be applied in the absence of medical evidence to that effect. On any view, therefore, the appellant’s application (to lead evidence of the 2006 incident) could never have been allowed, since there was no such medical diagnosis.”

Lord Carloway added that the court was satisfied that, even if evidence of the incident had been wrongly excluded, Mearns had not suffered a miscarriage of justice.

“The court does not consider that the jury’s determination of the appellant’s guilt on (the charge involving the woman) could have been materially affected by the existence of a partially false report relating to quite different circumstances and at a different time,” he said.