This item was published during the term of a previous administration that ended in April 2007
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Redressing the balance for victims in court
09/11/2000
The distressing practice of victims of rape and other sexual offences being cross-examined in court by alleged perpetrators is set to end, with today's publication of a range of proposals to bring in better protection for victims.
The paper, Redressing the Balance, outlines a number of possible ways of tackling the problem and discusses the practicalities of achieving greater protection for victims, while ensuring the accused still has a fair trial.
Ministers' preferred option is for the accused to be legally represented throughout the trial, subject to Human Rights requirements. An alternative is for the accused to be allowed to continue to carry out his or her own defence, with a legal representative being appointed by the court for the cross-examination of the victim.
In addition, the paper details proposals for extensive changes to protect victims' privacy by restricting invasive and unnecessary questioning on their character or past sexual history. Where questioning of the victim on her character or sexual history is allowed, this could result in automatic disclosure of previous sexual crimes by the accused.
Justice Minister Jim Wallace said:
"Great distress can be caused to the victims of rape and other sexual crimes, when giving evidence at the trial of the person accused of attacking them. This can be made much worse if that individual elects to conduct their own defence and to cross-examine the victim personally. That's why we are taking steps today to protect those victims.
"We also recognise that asking a victim irrelevant and intrusive questions about their sexual history or character can also cause great distress. We are determined to tighten up the existing measures in that area as well.
"Redressing the Balance lays out the options we have identified for ensuring that victims' rights are respected, while still making sure that the trial remains fair to the accused.
"Taken together, this package of measures sends a clear signal of our commitment to a better justice system - one which upholds the rights of all involved, and gives better protection to those who need it most."
Procedures on Cross-Examination
Four options are identified in the paper and discussed. They are:
- requiring the accused to be represented only for cross-examination of the complainer;
- giving the court discretion to appoint a legal representative for the accused in particular circumstances;
- requiring the accused to be legally represented throughout the trial; and
- requiring the questioning of the complainer to be done via the Judge when the accused is unrepresented.
Sexual History and Character Evidence
Views are sought on a number of possible changes to the law, including:
- requiring applications for the admission of sexual history or character, and the reasons for granting such applications, to be in writing; plus determining the admissibility of such evidence by means of a 'trial within a trial';
- abolishing the exemption which the Crown currently have, which allows it to introduce evidence about the complainer's sexual history or character without first seeking the approval of the court;
- a new approach to the question of evidence of other sexual activity of the complainer, which requires the court to weigh the relevance and probative value of evidence against an assessment of any prejudicial effect it may have;
- a new approach to issues of credibility of the complainer;
- automatic disclosure of any sexual offence convictions of the accused, where the defence has made a successful application to lead evidence about the complainer's sexual history or character; and
- making the issue of consent a special defence, so that the accused has to intimate that this will be his defence before the trial starts.
The Executive is fully committed to supporting the victims of crime and to a criminal justice system in which the voice of the victim is heard. Work is underway on a new Victims Strategy, to be published later this year.
BACKGROUND
- In June 2000 Ministers undertook to develop proposals to prevent an accused person charged with a sex offence from cross-examining a victim personally and to strengthen the provisions restricting cross-examination on sexual history.
- As was promised by the Towards a Just Conclusion Action Plan, discussions have been held over the summer with a range of victim support, rape crisis and women's groups, and with representatives of the legal professions and the judiciary. The final date for responses is 31 January 2001.
- Public copies of the Consultation are available from Steve McCourt on 0131 221 6806 or from the Scottish Executive Website.
News Release: SE2894/2000
9 Nov 2000