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EXECUTIVE SUMMARY

PURPOSE OF STUDY

In November 2000, the Scottish Executive issued a consultation paper, Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials ¹, seeking views on proposals to change the law of evidence in sex offence trials. Specifically, the aims were to prevent the accused in sexual offence cases from personally cross-examining the complainer, and to strengthen restrictions on the use of evidence about the sexual history and character of the complainer in sexual offence trials. In Redressing the Balance, the existing 'shield' legislation restricting the use of sexual history and sexual character evidence, ss.274 & 275 of the Criminal Procedure (Scotland) Act 1995, was acknowledged to be in need of reform. Earlier research had identified a number of shortcomings in the legislation, with the result that the type of evidence the legislation was designed to restrict was nonetheless being introduced (Brown, Burman and Jamieson, 1992; 1993). Redressing the Balance (2000) recognised the distress that 'irrelevant and intrusive questions' about sexual history or character can cause to those who give evidence as victims of sexual assault, and put forward proposals for a new approach to the question of sexual history and sexual character evidence, which would require the court to weigh the relevance and probative value of such evidence against an assessment of any prejudicial effect it may have.

Following the consultation, the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 ('the 2002 Act') was enacted, amending the relevant provisions of the earlier 1995 Act. The 2002 Act is intended to strike a balance between protecting the complainer from indignity and humiliating questions, and admitting evidence which is nevertheless so relevant that to exclude it would endanger the fairness of the trial.

This research study focuses on the operation of the 1995 Act, with the aim of providing a set of baseline data for a future evaluation of the impact of changes to the law of evidence in sexual offences following the introduction of the 2002 Act.

KEY OBJECTIVES

The key objectives of the research are:

(a) To explore the nature of the examination-in-chief and cross-examination of complainers in sexual offence cases and assess whether, to what extent, and in what circumstances questioning of the complainer may have been intimidating, humiliating or harassing, and to what extent and in what circumstances the judiciary or prosecution intervened to prevent this.

(b) To examine how often, in what kinds of cases and on what grounds the defence applied to the court to lead evidence about sexual history and character, and how often these applications were granted, and how often and in what kinds of cases such evidence was introduced by the defence without an application to the court, and without objection.

(c) To examine how often, in what kinds of cases and on what grounds information about the sexual history and character of the complainer was led by the prosecution or introduced as a result of questioning from the judge.

(d) To explore how often and from whom objections to the use of such evidence were made and how often these objections were upheld.

(e) To explore how often the defence of consent was employed by the defence and at what point in the trial this was introduced.

(f) To provide data on the length of sexual offence trials, and the causes and extent of delays in trials starting or being adjourned.

(g) To examine the extent and nature of the use of special arrangements to assist complainers in giving evidence e.g. use of CCTV, screens, allowing a supporter to sit nearby.

(h) To examine how often, and in what circumstances, judges used their powers to clear the courtroom before evidence from the complainer was led.

THE RESEARCH DATA

The research necessarily entailed a retrospective analysis of sexual offence cases tried at the High Court and heard under solemn proceedings in Edinburgh and Glasgow Sheriff Courts over a 3-year period (1999, 2000, and 2001).

Data were obtained from written records on trial charges, outcomes, special measures and the uses of the relevant provisions of the 1995 Act for all of the 313 High Court sexual offence cases identified as having gone to trial in the 3 year research period. A sub-sample of 84 High Court cases were selected for more detailed scrutiny by listening to and analysing sections of the tapes of these trials. They included all those trials which involved an application to introduce sexual evidence under the 1995 Act (n=66), and an additional 18 trials which involved similar charges, but which did not involve applications to introduce sexual evidence.

Data were also obtained from written records for all of the 62 Sheriff Court sexual offence cases which were heard under solemn proceedings in Glasgow and Edinburgh Sheriff Courts over the 3 year research period and the first 3 months of 2002. The taped proceedings of a sub-sample of 42 of these cases were obtained. This included all those trials which involved an application (n=4) and 38 cases which did not.

This Executive Summary outlines the main findings from the research.

THE NATURE OF GIVING EVIDENCE IN SEXUAL OFFENCE TRIALS

The research explored the nature of giving evidence in order to assess whether, to what extent, and in what circumstances, questioning of the complainer may have been intimidating, humiliating or harassing.

In one third of High Court trials, the complainer was in the witness box for one to 2 hours; in one quarter of trials, the complainer was in the witness box for 2 to 3 hours. A small proportion (4%) of complainers were in the witness box for over 5 hours. In the Sheriff Court, just under half were in the witness box for up to one hour; 32 percent from one to 2 hours and a small number (4) for over 3 hours.

In order to establish the elements of the particular offence, complainers are required to recount the sexual violence against them in explicit detail, during examination-in-chief and again in cross-examination. The nature of the questioning and the inspection of the complainers' most private aspects of their sexual lives, including their medical or gynaecological histories, can be potentially humiliating and intimidating. The tapes revealed that 61 percent of complainers in the High Court and 16 percent of complainers in the Sheriff Court were audibly distressed, in that they were crying or sobbing, when giving evidence.

SELF-REPRESENTATION

The research identified one High Court case in which the accused self-represented. It did not involve an application to introduce sexual evidence.

APPLICATIONS TO INTRODUCE SEXUAL EVIDENCE

Under the 1995 Act, the defence is required to make a verbal application to the court in order to introduce sexual history or sexual character evidence. A key objective was to examine how often, in what kinds of case and on what grounds the defence applied to the court to lead evidence about sexual history and character, and how often these applications were granted.

High Court Applications

Applications were made in 66 of the 313 High Court trials (21%).

Two thirds of trials involving applications involved rape charges. Applications were made in less than one in 4 rape trials (23%); in 2 fifths of clandestine injury trials (40%), and; in 15 percent of trials that involved sexual offences other than rape or clandestine injury.

The vast majority of applications (95%) were made spontaneously by the defence. Where the defence gave reasons for introducing evidence or questioning, this was invariably to suggest or show consent, to test the credibility of the complainer, to suggest/show motive for false allegation, or to lead evidence about the source of physical or forensic evidence suggesting that the complainer had sex with a third party on or around the time of the alleged offence.

In 15 applications, the Crown opposed the application by the defence and attempted to convince the court to place limits on the evidence proposed, or have the questioning expressly restricted to certain issues in the trial.

Discussions of the relevance of the proposed evidence were rare during applications, only occurring in 12 High Court cases. In all of these, the relevance of the proposed questioning or evidence was queried by the judge and/or the prosecution.

Applications are rarely unsuccessful; in the High Court, 5 out of 75 applications to introduce sexual history or sexual character evidence were not allowed by the court; 63 percent were wholly successful in that the court allowed all the evidence sought by the defence, and; 29 percent were partially successful, in that the court placed some restrictions on the proposed line of questioning or evidence.

Sheriff Court Applications

Applications were made in 4 Sheriff Court trials. One was wholly successful, 2 were partially successful, and one was refused by the sheriff.

SEXUAL EVIDENCE INTRODUCED WITHOUT APPLICATION

Sexual history or sexual character evidence of the type prohibited by the 1995 Act was introduced by the defence without an application to the court in half (9 out of 18) of the sample of High Court trials without an application which were scrutinised as part of the research. If this pattern is generalised to all serious sexual offence trials then potentially half of all cases still contain sexual history or sexual character evidence. In the Sheriff Court, six of the scrutinised 38 trials in which an application was not made were identified as cases in which defence questioning on sexual matters took place in the absence of an application.

Information about the sexual history and character of the complainer was rarely led by the prosecution during examination-in-chief. The main exception to this was those cases involving women who worked as prostitutes, where the alleged offence took place whilst the women were working and evidence of prostitution was led by the prosecution as part of establishing the context and antecedents of the offence.

There were no incidences of sexual history or sexual character evidence being introduced as a result of judicial intervention.

OBJECTIONS TO SEXUAL EVIDENCE

The research sought to establish how often and from whom objections to the use of sexual evidence were made. No objections by the prosecution or judicial interventions were noted in any of the cases where sexual evidence was introduced without an application.

In 16 of the 66 High Court trials that involved applications, the defence introduced additional sexual history or sexual character evidence which either did not form part of the application or had been expressly forbidden by the court during the application. The judge intervened in 2 of these cases, the prosecution objected in another 2 cases, and the prosecution and judge both objected in 1 case.

THE DEFENCE OF CONSENT

One of the research objectives was to explore how often the defence of consent was employed in sexual offence trials, and at what point this was introduced. Consent was a key reason for 20 of the 75 High Court applications (4 of which involved mistaken-belief-in-consent) and was the main defence argument in another 15 trials involving applications. Consent was given as a reason in one of the 4 Sheriff Court applications. Consent was most commonly introduced by the defence during the cross-examination of the complainer.

Prior sexual conduct with the accused (that is, any sort of sexual contact, from sexual intercourse to kissing or cuddling) was presented by the defence as being relevant to the issue of consent. In particular, where the accused was the complainer's partner or ex-partner, this evidence was presented as an indicator of consent or as posing a very strong counter to any presumption of non-consent.

TRIAL LENGTHS AND DELAYS

The research sought data on the length of sexual offence trials. In the High Court, sexual offence trials ranged from 1 day (9%) to 29 days (<1%) in duration. Most trials took between one and 4 days for all the evidence to be heard and a verdict reached. In the 2 Sheriff Court locations, the average trial length was 3 to 4 days. In Edinburgh, 1 trial lasted 7 days; in Glasgow trials ranged from 2 to 11 days. More high number multiple charge cases (with upwards of 10 charges) were heard in Glasgow, and hence the longer average trial length in this court.

In over a third of High Court trials where information on changes and delays in the commencement of trials was available, there was no change to the scheduled trial start-date. In 30 percent of trials, there was one change; in 18 percent there were 2 changes; in 8 percent there were 3 changes; in 4 percent there were 4 changes and in just over 5 percent there were more than 5 changes to start date.

SPECIAL MEASURES

The research sought to establish the extent and nature of the use of special court-room arrangements to assist complainers in giving evidence. Special measures ( e.g. the use of screens, CCTV facilities, presence of a support person) were used in just under a third of High Court trials (96 out of 313) and used in at least 19 of the 62 Sheriff Court trials. Special measures tended to be used with younger complainers and also in cases where the accused was a member of the complainer's family.

A. INTRODUCTION

THE LEGISLATIVE BACKGROUND

The key aim of this study was to collect baseline data about the operation of ss.274 & 275 of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act'), which restricted the use of sexual history and sexual character evidence in sexual offence trials, in order to inform a future evaluation of the Criminal Procedure and Evidence (Scotland) Act 2002.

'Rape shield' legislation came into force in Scotland for the first time in 1986. ² The stated aim of the legislation was to achieve overall, a balance between minimising undue questioning of complainers on their sexual life, while continuing to admit all the evidence necessary for justice to be done to the accused. This legislation (see Appendix 1) laid down a general prohibition on certain types of sexual evidence, specifically that which showed, or tended to show, that the complainer was 'not of good character in relation to sexual matters', 'a prostitute or an associate of prostitutes', or had 'at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge'. These prohibitions applied only to the defence, and not to the prosecution.

Under this legislation all such evidence was prohibited unless one or more of a number of exception clauses applied. The permitted exceptions were: where the evidence is designed to 'explain or rebut' evidence already adduced; where it relates to sexual behaviour which took place on the 'same occasion' as that outlined in the charge, or is relevant to a defence of incrimination and; where it would be 'contrary to the interests of justice' to exclude the evidence. The legislation required that defence seeking to introduce prohibited evidence make a verbal application to the judge/sheriff during the course of the trial.

Although widely welcomed by feminist groups, the legislation met with some early criticism from legal commentators and socio-legal researchers. Research by Chambers and Millar (1986) had confirmed the prevalence of sexual history and character evidence in rape trials, and found that it was common for both the prosecution and the defence to introduce sexual evidence. They also pointed to the ways in which the prosecution could lead evidence which gave the defence the opportunity to raise questions about sexual history as a means of explanation or rebuttal (1986: 108). Field (1988) criticised the legislation for being open to too much interpretation, particularly in respect of the last exception that sexual history and character evidence could be led if it was 'contrary to the interests of justice' to exclude it.

In the early 1990's, research on the use and effectiveness of the legislation in the High and Sheriff Courts pointed to shortcomings in the provisions (Brown, Burman and Jamieson, 1992, 1993). First, this research showed that the statutory provisions were

not being properly observed, and that evidence about sexual history and character was being admitted in the courts without an application being made by the defence to introduce such evidence. Evidence about the complainer's sexual history or character featured in about half of all jury trials for sexual offences and, in a third of the cases in which this evidence was introduced by the defence in the High Court, no prior application had been made. The research also showed that it was even more common in Sheriff Court trials, than in High Court trials, for sexual evidence to be introduced by the defence without an application.

Second, the research also showed the limitations of the application process. Even where the evidence was preceded by an application, the ensuing questioning often strayed beyond that which was agreed by the court in the application. Sexual history evidence often carried connotations which went beyond the relevance stated in the application, and, even where applications had been refused, the defence was still able to effectively pursue the requested line of questioning in less direct ways. The research also showed that, in practice, the exception clauses were used freely and loosely, resulting in a much wider spectrum of sexual evidence being introduced than was anticipated in the pre-legislative discussion (Brown et al, 1992, 1993).

The key problems, as identified by Brown et al (1992; 1993) were first, that there was a lack of specificity regarding the relevance of sexual evidence. Relatively few applications incorporated an explicit discussion of relevance to issues in the trial. Second and relatedly, the legislation gave little leeway for the probative value of the sexual evidence to be considered and weighed against its potentially prejudicial effects. Questions of weak relevance to key matters in the trial, often poorly based, yet with much potential for connotations of 'bad' sexual character were introduced. In some cases, this was following an application; in others, such evidence was introduced without an application. Lines of questioning which were justified as tests of the credibility of the complainer often became attacks suggesting a person was of bad character or sexual character and sometimes also explicitly suggesting a tendency to consent to sexual acts. Such lines of questioning had the potential for diverting attention away from the key issues under determination in the trial, and were also likely to prejudice a jury against the complainer. Questioning about sexual history and sexual character evidence is typically extremely distressing for the complainer, and the research documented incidents of complainers breaking down in the witness box during such questioning, followed by adjournments during which complainers tried to compose themselves (Brown et al 1992, 1993).

Throughout the 1990's, there were calls for a strengthening of the rules of evidence in sexual offence trials in Scotland by feminist groups and academics. In 2000, the Scottish Executive issued a consultation document, Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials ³ in which the Justice Minister called for a 'tightening' up of existing measures concerning the use of sexual history and sexual character evidence. Following the consultation on Redressing the Balance, the existing 'shield' legislation was reformed and new statutory rules restricting sexual evidence were introduced by means of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 ('the 2002 Act').

The 2002 Act introduced 2 main amendments to the earlier legislation:

• that the accused be legally represented throughout his or her trial, thereby preventing him or her from personally cross-examining the complainer; and
• a strengthening of the rules surrounding the use of questions into the sexual history and character of the complainer.

The need for the first amendment originated from a perceived risk that the accused might use their entitlement to personally cross-examine the complainer, to humiliate and intimidate her, by forcing her to 're-live' elements of the offence. ⁴ It was suggested in Redressing the Balance (2000) that the court may be reluctant to intervene too severely in a case where an accused person is conducting his own defence. Because an accused is not normally legally qualified or trained in criminal procedure, the court may not wish to be seen to be unduly restrictive to an unrepresented accused, since to do so might be seen as harsh and oppressive and give rise potentially to grounds for appeal against a conviction.

The key aim behind the second main amendment is to prevent the use of irrelevant sexual evidence, and discourage the use of evidence of limited relevance where the primary purpose of such evidence is to undermine the credibility of the complainer or divert attention away from the issues under determination. It is intended to strike a balance between protecting the complainer from indignity and humiliating questions, whilst admitting evidence which is nevertheless so relevant that to exclude it would endanger the fairness of the trial. As such, the 2002 Act provides for a sharper focus on the relevance of sexual history or sexual character evidence.

There are a number of differences to procedure. It is now necessary that a written application to introduce sexual evidence is made, before a trial commences, if either the prosecution or the defence wish to present sexual history or character evidence. The court can choose to hear evidence to help it reach a decision. If the court admits evidence, it must state what it is admitting, the line of questioning allowed, its reasons for allowing the evidence, and the relevance of the evidence.

Where the defence does succeed in convincing the court that such evidence should be admitted, there is now a presumption that any relevant sexual offence convictions of the accused should be disclosed to the jury. The 2002 Act also necessitates that, if the defence of consent is to be employed, then this intention must be made clear prior to the beginning of a trial. Prior to the 2002 Act, such a defence could be introduced at any point in the trial.

The legislation is still framed as a general prohibition followed by a set of exceptions. The general prohibition now applies to evidence that the complainer is 'not of good character' (whether in relation to sexual matters or otherwise) and specifically prohibits evidence that might found the inference that the complainer is 'likely to have consented' or 'is not a credible or a reliable witness'. The provisions demonstrate a shift from a focus on sexual history per se to more general issues of character.

A set of exceptions are still specified but the nature of the admissible evidence is further restricted to only a specific occurrence or occurrences of behaviour and only if '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'. The 2002 Act explicitly requires that consideration of justice must include taking account of a complainer's dignity and privacy and must ensure the relevance of the evidence.

PURPOSE OF STUDY

This research study is specifically concerned with providing a picture of how the evidential issues in sexual offence trials that the new legislation sought to address were being dealt with by the court under the previous legislation (the 1995 Act) in order to provide a baseline measure against which it will be possible to assess the impact of the 2002 Act.

The issues addressed in this research include not only the nature of sexual history and sexual character evidence introduced, but also the ways in which such evidence was introduced, the reasons for its introduction and, where provided, the relevance and probative value of the evidence, and the degree of invasion of the dignity and privacy of the complainer resulting from the introduction of such evidence. These issues were incorporated into a list of specific research objectives which structure the rest of this report.

The main objectives of this research, as contained in the research specification issued by the Scottish Executive, are:

(a) To explore the nature of the examination-in-chief and cross-examination of complainers in sexual offence cases and assess whether, to what extent, and in what circumstances questioning of the complainer may have been intimidating, humiliating or harassing, and to what extent and in what circumstances the judiciary or prosecution intervened to prevent this.

(b) To examine how often, in what kinds of case and on what grounds the defence applied to the court to lead evidence about sexual history and character, and how often these applications were granted, and how often and in what kinds of cases such evidence was introduced by the defence without an application to the court, and without objection.

(c) To examine how often, in what kinds of case and on what grounds information about the sexual history and character of the complainer was led by the prosecution or introduced as a result of questioning from the judge.

(d) To explore how often and from whom objections to the use of such evidence were made and how often these objections were upheld.

(e) To explore how often the defence of consent was employed by the defence and at what point in the trial this was introduced.

(f) To provide data on the length of sexual offence trials, and the causes and extent of delays in trials starting or being adjourned.

(g) To examine the extent and nature of the use of special arrangements to assist complainers in giving evidence e.g. use of CCTV, screens, allowing a supporter to sit nearby.

(h) To examine how often, and in what circumstances, judges used their powers to clear the courtroom before evidence from the complainer was led.

(i) To explore the extent to which evidence was agreed in advance in sexual offence trials and the nature of such evidence. ⁵

B. THE RESEARCH DATA

The research entailed a retrospective analysis of sexual offence cases tried at the High Court and heard under solemn proceedings in Edinburgh and Glasgow Sheriff Courts over a 3 year period (1999, 2000, and 2001). Records for the 3 years were trawled to identify all sexual offence trials over this period.

The main sources of data for the study were written records generated by the criminal justice system and taped recordings of trial proceedings. A data-base was created of sexual offence cases over the period. Written records were used to find the following details for the database: numbers and ages of accused and complainers; charges and trial dates; whether there were delays in the case coming to trial; plea at trial and trial outcomes; verdicts; the use of any special measures such as screens or video link; whether an application was made to introduce sexual history or sexual character evidence; and trial tape reference numbers. Information about the nature of evidence led, the use of sexual history and character evidence and the distress of the complainer were sought by listening to a sample of tapes drawn from all cases identified.

Identifying sexual offence cases was more difficult in the High Court because of their relative lack of computerised systems at the time of the study and this involved examining several types of written records. These included Court Indexes, Books of Adjournal, Sitting Papers and Minute Books. Each of these sources are organised rather differently. For example, Court Indexes are a list of cases ordered alphabetically by accused and by year, whereas Books of Adjournal are ordered by the fiscal case number and by year. In all types of record, the contents are mainly hand written, unavailable electronically and unable to be searched by type of offence. Court Indexes and Books of Adjournal were the main sources for identifying cases. In some cases these sources were sufficient to extract the details sought. However, in many cases it was also necessary to examine additional sources. In these cases, and in cases known to have an application to introduce sexual history and character evidence, and in an additional sample of cases, the case sitting papers and Minute Books were also examined. These sources provide some documentation of the type of evidence led and, in the case of Minute Books, sometimes a summary of the content of legal discussions that took place, such as in the dialogue during an application to introduce sexual history and sexual character evidence.

However, for both levels of court, listening to tapes was the only way of looking in detail at evidence led, the nature of cross-examination and gaining some insight into the distress or otherwise of the complainer. For this reason, a sample of cases were selected in which we listened to tapes, as is discussed below.

HIGH COURT DATA

The research identified 313 trials involving sexual offences in the High Court over the 3 year period 1999, 2000 and 2001, as shown in Table B.1. Approximately half of the sexual offence cases called to court went to trial and evidence was led.

Table B.1 Cases called to the High Court, 1999, 2000, 2001

Data were obtained from written records on trial charges, outcomes, special measures and the uses of ss.274/275 of the 1995 Act for all of the 313 sexual offence trials identified. A smaller sub-sample of 84 ⁶ cases were selected for more detailed scrutiny by listening to, and analysing, sections of the tapes of these trials. The sub-sample included all those trials which involved an application to introduce sexual evidence under the 1995 Act (n=66) as it was important to focus on cases in which sexual history and sexual character evidence was known to be introduced.

It was also important to check whether any sexual history or character evidence was introduced despite the absence of an application by looking at a smaller sample of serious sexual offences. Tapes of an additional 18 trials were also scrutinised; these were cases in which no application was made and which involved a charge of rape or clandestine injury. ⁷ Table B.2 shows the types of research data utilised in the different court locations.

Table B.2 Source and location of research data, by year

* first 3 months only

SHERIFF COURT DATA

Sixty-two trials involving sexual offences were heard under solemn proceedings in Glasgow and Edinburgh Sheriff Courts over the period 1999, 2000, 2001 and the first 3 months of 2002. Case sitting papers for all of the 62 trials heard over this period were obtained, as were the corresponding trial tapes for a sample of 42 cases. Just 4 of these trials entailed an application by the defence to introduce sexual evidence

C. THE NATURE OF GIVING EVIDENCE IN SEXUAL

OFFENCE TRIALS

This section of the report addresses the first stated objective of the research, which is:

(a) To explore the nature of the examination-in-chief and cross-examination of complainers in sexual offence cases and assess whether, to what extent, and in what circumstances questioning of the complainer may have been intimidating, humiliating or harassing, and to what extent and in what circumstances the judiciary or prosecution intervened to prevent this. To also explore how often the accused chose to represent himself in such cases .

GIVING EVIDENCE IN SEXUAL OFFENCE TRIALS

The Experience of Giving Evidence in Sexual Offence Trials

All research evidence points to the intimidating and distressing nature of giving evidence for complainers in sexual offence trials, so much so that the trial has been characterised as a form of secondary victimisation (see, e.g. Chambers & Millar, 1986; Adler, 1987, Brown et al, 1993; Lees, 1996; Lees & Gregory, 1996; Temkin, 2000, 2002).

The trial process can be difficult for complainers in a number of ways. As in all cases, the prosecution has to lead evidence to establish that the elements of the crime have taken place, the defence has a right to cross-examine and the prosecution to re-examine each witness. In order to establish the elements of the particular offence, complainers are usually required to recount the sexual violence against them in explicit detail, both during their examination-in-chief and in cross-examination. This is perhaps inevitably upsetting because it requires a re-living of a very distressing event. The previous research referenced above has suggested that the unfamiliar nature of the courtroom, the lack of control which the complainer has over how her or his story can be told and the adversarial response of the defence are likely to add to the ordeal and may create further distress and humiliation. While it is a characteristic of the adversarial system for the defence to cross-examine a witness testing her or his credibility and consistency, the legislation prohibiting sexual history and sexual character evidence is an attempt to protect complainers from unnecessary ordeal. One of the motivating factors of the legislation was concern over the use by the defence in sexual offence trials of suggestions of bad character to both discredit a complainer's credibility as a witness and to imply that she was somebody likely to consent to sex.

Intimidation, humiliation and harassment

Methodologically, this research was limited in that the extent to which questioning of the complainer may have been intimidating, humiliating or harassing could only be established by listening to trial tapes, and by the researchers applying a subjective measure of harassment, humiliation and intimidation. From listening to the taped proceedings, it was possible to determine complainer responses to questioning, in

particular, whether the complainer was crying; whether the complainer was unable to speak or respond to questions; and/or whether the complainer became angry at the questioning. What follows here may be a conservative assessment as distress manifests itself in different ways, not all of which are audible.

In many of the High Court trials, the complainers were audibly distressed (and some extremely so) when giving evidence, and particularly during cross-examination by the defence. As Table C.1. shows the complainer was crying or sobbing in 61 percent of High Court trials; in a small number of cases the complainer was both crying and angry (n=4), and crying and unable to speak (n=6). In 32 percent of cases there was no audible signs, but that does not mean that the complainer was not distressed or upset.

Table C.1 Complainer response to questioning, from High Court trial tapes

Note: first complainer only (10 cases involved more than one complainer)
* One case missing.
** In 6 cases complainers were crying and unable to speak and in 4 cases they were crying and angry.

From the taped trial proceedings it was also possible to determine that, in 11 of the High Court trials, the judge adjourned the case for short periods as a result of the complainer's distress. In 1 such case, the complainer was so upset that she was unable to come back onto the witness stand at all.

In 7 of the 42 Sheriff Court trials (16%), the complainer was crying or sobbing when giving evidence; the sheriff adjourned 3 of these cases to allow the complainer to try to regain her composure.

Cross-examination by the defence

In common with other research findings ( e.g. Chambers & Millar, 1986; Adler, 1987, Brown et al, 1993; Lees, 1996; Temkin, 2000, 2002) this research found questioning which tests the credibility of the complainer to be a key component of cross-examination. Defence lines of questioning which tested credibility included arguments concerning (past) false allegations of sexual assault on the part of the complainer and/or arguments that drew on the abusive past of the complainer as a context for explaining the current allegation. Inferring that the allegation is falsely made casts strong doubts on the complainer's credibility. Specifically, the motives for false allegation cited by the defence included revenge, malice against the accused, in order to obtain some financial compensation, a more lucrative divorce settlement, custody of children, and fear of being found out (having consensual sex) by parents, husbands or boyfriends.

Tests of credibility also included disputing the complainer's version of events, and putting forward an alternative explanation for the source of physical ( e.g. bruising, torn clothing) or forensic evidence in order to suggest that the complainer had sex with another person at or around the time of the alleged offence.

Information from the medical report, such as the complainer's contraceptive and gynaecological history, absence of hymen, and information regarding a history of depression or substance abuse were similarly used to suggest that the complainer was not a credible witness.

This research documented lines of defence questioning delivered in a hostile and intimidating tone which resulted in the complainer breaking down and weeping, as shown in Table C1. This included asking the same question, again and again, in an increasingly louder voice, with little opportunity given for the complainer to answer; calling the complainer a liar and a time-waster; suggesting that the allegation was false; and putting forward an alternative version of events and asking the complainer to agree with that version.

It is important to note that even when the tone used by defence counsel is not aggressive or hostile, the nature of the questioning and the detailed inspection of the minutiae of complainers' most private aspects of their sexual lives, including their medical or gynaecological histories, is potentially humiliating and intimidating. Not all of those who broke down in the witness box did so because the questions were put to them in a verbally hostile way.

Time spent in witness box

During their time in the witness box, complainers are subjected to continual questioning concerning each detail of the incident(s) in the charge(s). Information on time spent in the witness box for High Court trials was available in 70 of the 84 High Court trials selected for detailed examination through analysis of the tape recordings of the proceedings. This is detailed in Table C.2.

Table C.2 Duration of complainer's evidence, High Court

* first complainer only (10 cases had more than one complainer)

Most complainers are in the witness box for over an hour and some can spend several hours in the witness box as Tables C.2 and C.3 show. As shown in Table C.2, in one third of the 84 trials, the complainer was in the witness box for between one and 2 hours; in one quarter of trials, the complainer was in the witness box for 2 to 3 hours. A small proportion (4%) of complainers were in the witness box for over 5 hours. The latter cases involved 2 accused, and so the complainer was cross-examined by counsel for each accused.

Information on time spent in the witness box giving evidence and undergoing cross-examination was obtained from written records and tapes for 59 of the 141 complainers who gave evidence in the Sheriff Court. This is shown in Table C.2.

Twenty-nine complainers were in the witness box for less than one hour; 21 from one to 2 hours, and 9 for over 2 hours, 3 of them for over 3 hours.

Table C.2 Duration of complainer's evidence, Sheriff Court

Interventions and objections from judge and prosecution

The legislation creates grounds for judges and prosecution to object to sexual character or sexual history evidence that has been prohibited by the legislation but is introduced without permission. Objections provide opportunities to ensure the effectiveness of the legislation, and to curtail distress experienced by the complainer. The research documented some cases of the introduction of sexual character and sexual history evidence without permission but less than half resulted in objections from the judge or prosecution.

In 16 of the 66 High Court trials that involved applications to introduce sexual history or sexual character evidence, the defence introduced additional sexual history or sexual character evidence which either did not form part of the application or had been expressly forbidden in the application. In some cases in which the defence had been given permission to introduce all the issues specified in their application, the defence then went on to introduce additional issues which had not been indicated. The judge intervened in 2 of these cases, the prosecution objected in 2 cases, and the prosecution and judge both objected in one case. In cases where the application was only partially successful and the defence strayed into prohibited areas, the judge intervened to remind the defence of the parameters in 2 cases; the prosecution objected in 3 of these cases.

In half of the 18 rape and clandestine injury trials selected for further scrutiny because they did not involve an application to introduce sexual character or history evidence, such evidence was introduced, despite the absence of an application. There were no objections or interventions to this evidence in any of these nine trials.

Extent of self-representation

There are no court statistics to indicate the extent of self-representation for sexual offence cases that go to trial. The mapping exercise identified only one High Court trial where the accused led his own defence. This case was widely reported in the press. It did not involve an application under the 1995 Act. None of the accused persons in the Sheriff Court trial sample represented themselves in court.

D. APPLICATIONS TO INTRODUCE SEXUAL EVIDENCE

This section of the report addresses the second, third and fourth stated objectives of the research, which are:

(b) To examine how often, in what kinds of cases and on what grounds the defence applied to the court to lead evidence about sexual history and character, and how often these applications were granted, and how often and in what kinds of cases such evidence was introduced by the defence without an application to the court, and without objection.

(c) To examine how often, in what kinds of cases and on what grounds information about the sexual history and character of the complainer was led by the prosecution or introduced as a result of questioning from the judge.

(d) To explore how often and from whom objections to the use of such evidence were made and how often these objections were upheld.

HIGH COURT TRIALS IN WHICH APPLICATIONS WERE MADE

The defence made an application to the court to lead evidence about sexual history or sexual character evidence in 66 (21%) of the 313 High Court trials. A total of 75 applications were made, as 8 trials involved more than one application. Table D1 shows the numbers of applications made over the 3 year period of the research.

Table D.1 Numbers of application cases by year

Characteristics of cases

Table D2 shows the type of charges involved in the sexual offence trials over the research period, and the proportion of applications. Two thirds of the trials where applications were made involved charges of rape. Half of these involved rape only; 18 percent involved rape with other offences of a sexual nature. High Court trials where applications were made to introduce sexual evidence tended to involve a single complainer.

Applications were made in 23 percent of rape trials heard over the 3 year monitoring period.

Table D.2 Sexual offence charges in High Court trials

* may also include additional non-sexual offences
** includes 2 cases of rape and murder in 2000 and one in 2001.
3 cases originally charged as sexual offences proceeded to trial with non-sexual charges.

Two thirds of the High Court trials with applications took place relatively shortly after the incident in the charge (within 2 years). As Table D3 shows, most applications were made in trials which involved adult female complainers. Seventy-one percent of applications took place in trials in which the complainer was adult at the time of offence; 17 percent took place in trials where the complainer was a child at the time of offence, but an adult at the time of trial. In these cases, the incidents were reported and came to trial at a much later date than when they were alleged to have occurred.

At least 5 percent of applications were made in order to question children about sexual history or sexual character evidence.

The remaining cases involved multiple complainers of different ages, some adults and some children, although at least one of the offences in each of these cases had occurred several years earlier.

Table D.3 Age of complainer at offence and trial, High Court application cases

Applications to lead sexual evidence

When making an application, typically, the defence simply states to the judge or sheriff that he or she would like to introduce evidence prohibited under the 'shield' legislation and/or address certain questions to the complainer. In the majority of cases the application was made immediately after the complainer's evidence-in-chief, and before the commencement of cross-examination, although some were made during the complainer's cross-examination.

Section 274 (n=3) of the legislation specifically states that an application should be made in the absence of the jury, the complainer, or any other witness. When the intention to make an application is made known, the complainer and the jury will be sent out and the defence is able to address the court. That said, a small number (n=3) of applications did not follow this procedure, in that the application discussion took place without the court being cleared.

Ninety-five percent of applications were made spontaneously by the defence, with a very small number prompted either by the prosecution (n=2) or at the behest of the judge (n=2). Three of the non-defence initiated applications occurred during the cross-examination of the complainer, and one during the cross-examination of another Crown witness, when the defence questioning strayed into the territory of restricted evidence.

One of the applications identified in this research was made by the Crown during the complainer's evidence-in-chief, although the prohibitions do not relate to the Crown. In this case, the application was made to introduce evidence concerning sexual behaviour 'on the same occasion' with the accused. In response, the defence counsel stated that he did intend to ask the complainer about her previous sexual relationship with the accused, and the evidence was allowed. The defence did not subsequently make his own application, but picked up on what had been raised by the prosecution in his cross-examination of the complainer.

Grounds on which applications are made in the High Court

Following intimation by the defence that he or she wishes to introduce prohibited evidence, and the clearing of the court, the judge, and sometimes the prosecution give a

response. This whole process can be very brief (lasting a matter of minutes) and, in approximately one third of all the application cases, there were very few, if any, comments made or questions asked by the judge and no involvement of the prosecution. Some applications were unquestionably cursory, where the judge simply agreed to the defence request to be able to question the complainer, with no input from the prosecution.

In other cases, however, the application discussion was a lengthier and more detailed affair, ⁸ with the prosecution consistently objecting to the proposed evidence on several grounds, along with some probing questions put by the judge concerning the relevance and admissibility of the evidence. It is important to note however that these cases were notable exceptions to the general rule.

During the course of an application, the defence may explicitly refer to the provisions of the legislation, that is, to a specific exclusion clause or, more frequently, the relevant exception clauses. Exclusion clauses specify the type of evidence that is prohibited under the legislation. The exception clauses, on the other hand, specify a set of exceptions that may result in lifting the prohibition. Reasons for questioning or introduction of evidence are not always explicitly provided by the defence, nor sought by the court. Where they did occur, references to specific exception or exclusion clauses were recorded, as were any references to evidential matters or specific issues in the trial, such as consent, credibility of the complainer, motive for allegation, and reliability.

Use of exception and exclusion clauses (s274(1) (a), (b), (c) and s275(1) (a),(b), (c))

In 59 percent of applications the defence cited a specific exclusion clause to indicate the nature of the evidence that he or she wished to lead. The most frequently cited was s.274 (1) (c) 'sexual behaviour not forming part of the subject matter of the charge' which was cited solely in 25 of the 66 applications and in combination with other clauses in another 9 applications.

Exception clauses were invoked much more commonly than exclusion clauses (in 93 percent of applications). S.275 (1) (c) 'the interests of justice' was by far the most common, and was invoked either singly or in combination with other exception clauses in 91 percent of applications. The frequency with which interests of justice is invoked and the wide range of interpretations it gives rise to suggest it is routinely being used as a 'catch-all' clause.

Consent, credibility, motive and contested source as reasons for introducing sexual evidence

In applications where reasons for introducing evidence or questioning were given, the defence invariably sought to introduce the evidence to address several different issues that either had arisen, or which he or she anticipated would arise, in the course of the trial.

When reasons were provided, they fell into one of the following categories:

• To suggest/show consent on the part of the complainer. Consent was given as the main reason in 20 applications, 4 of which involved mistaken-belief-in-consent.
• To test the credibility of the complainer. Credibility was stated in 35 applications. This included arguments that drew on the abusive past of the complainer as a context for explaining the current allegation, attempting to show the complainer as someone with a sexual reputation and therefore not a credible witness.
• To suggest/show motive for allegation. Motive was stated as a reason in 10 applications. This ranged from revenge, spite and malice against the accused, to fear of being found out (having consensual sex) by parents or boyfriends.
• To provide an alternative explanation about the source of physical or forensic evidence that tended to suggest that the complainer had sex with a third party on or around the time of the alleged offence. This was stated in 5 applications.

Discussion of relevance of proposed questioning

The research found very little explicit discussion weighing up the evidential value of such evidence. Discussion was more likely to focus on which was the technically correct sub-section of ss.274/275 to use, effectively sidestepping the relevance of issues in the case.

It is reasonable to expect that questioning should have an evidential starting point. Yet, explicit specification by the defence of the reasons for the proposed questioning or evidence, and its admissibility in terms of its relevance to a particular issue or set of issues in the case was notably absent, occurring in just 12 application cases. In these cases, discussion about the relevance or admissibility of the proposed evidence or questioning was precipitated by specific questions from the judge and/or prosecution.

Detailed and persuasive arguments by the defence in application discussions were very rare, so success in applications cannot be attributed to defence rhetoric and skill in deploying compelling arguments concerning the relevance and applicability of sexual evidence. On the contrary, many application discussions were fairly perfunctory, with the defence largely appealing to the 'interests of justice' clause and with little explicit mapping out of evidential relevance or reference to specific issues

in the trial. It is important to bear in mind, however, that there is no statutory requirement in the legislation that any such relevance be shown by the defence in making an application.

Role of the Crown in applications

In 15 (23%) of the High Court trials with applications the Crown opposed the line of questioning proposed by the defence. Specifically, the Crown did this by either challenging the relevance of the evidence, or attempting to convince the court to place limits on the evidence proposed by the defence, or attempting to have the questioning expressly restricted to certain issues in the trial (most commonly consent), or trying to ensure that questions were put to the complainer only. This did not always mean that the Crown objected to the basis of the application or the relevance of the evidence. Indeed, in some cases, the Crown was openly supportive of the application; yet seemed determined to place some parameters around the proposed defence questioning. The 15 cases include the 2 applications which were precipitated by an objection by the prosecution.

On the basis of this research, the Crown contribution to the application discussion was limited, and opposition or objection to the line of questioning or evidence proposed by the defence was relatively infrequent. Indeed, even application cases where the judge specifically called for a view from the Crown, the Crown rarely challenged the proposed line of questioning. Without speaking to the relevant personnel, it is not possible to know how to interpret this silence. It could, for example, indicate prior agreement between the prosecution and defence about the relevance of a line of questioning or a tactical decision by the prosecution to address the evidential issue at some other point in the trial, or deference to the judge as the sole arbiter on matters of law with ultimate responsibility for ensuring proceedings are lawful. Previous research which did interview practitioners (Brown et al, 1992) reported judges as sometimes disinclined to intervene in the absence of stated opposition by the Crown.

Results of applications to introduce sexual history or sexual character evidence in the High Court

Applications to introduce sexual evidence are rarely unsuccessful. Five of the 70 applications were not allowed. The Crown opposed all of the 5 unsuccessful applications.

Table D5 shows charges involved and the results in cases where applications were made. Forty-seven of the 75 applications (63%) were wholly successful, in that the court allowed the defence to introduce all of the evidence sought, without any restrictions. Another 22 applications (29%) were partially successful, in that the judge placed boundaries around the proposed evidence or questioning, or restricted it in some way. This could take the form of specific instructions to the defence, or more general cautionary remarks alerting the defence to adhere to what had been agreed in the application. Overall, 92 percent of applications had some success in that all or part of the proposed evidence or questioning was allowed.

Table D.5 Number of trials, charges involved and results of applications, High Court, 1999- 2001

HIGH COURT TRIALS IN WHICH SEXUAL EVIDENCE WAS INTRODUCED BUT NO APPLICATION WAS MADE

Sexual evidence was introduced in breach of the legislation in 9 of the 18 trials which did not involve an application under the 1995 Act. The presence or use of prohibited sexual evidence without any reference to the legislation is, in part, a matter of procedures not being followed. Table D.6 shows the numbers of trials involving sexual evidence introduced without an application.

Table D.6 Sexual evidence in trials without application, High Court (n= 18)

Seven of the trials which involved sexual evidence but no application involved rape charges and 2 involved single charges of clandestine injury.

Nature of sexual evidence introduced in absence of application

Table D7 shows the High Court trials in which sexual evidence was introduced in breach of the legislation. The nature of the sexual history evidence introduced was primarily in respect of some kind of past sexual relationship with the accused. In all but one of these cases, consent was the crux of the defence case.

In 3 cases, the defence also challenged the character of the complainer; and in 2 cases, the defence additionally raised doubts about the credibility of the complainer.

Given the very high level of success of applications, it is probable that most, if not all, of the prohibited evidence introduced by the defence without an application may well have been admitted legitimately had an application been made. However, the introduction of such questioning or evidence by way of an application provides a formal opportunity to check the admissibility of the evidence and, if seen to be necessary, place limits on the questioning.

Table D.7 High Court Trials with sexual evidence introduced without application

Objections to sexual evidence introduced without application

No objections by the prosecution or judicial intervention were noted in any of the cases where sexual evidence was introduced without an application.

SHERIFF COURT TRIALS IN WHICH APPLICATIONS WERE MADE

The defence made an application to the court to lead evidence about sexual history or sexual character evidence in 4 of the 62 Sheriff Court trials.

Grounds on which applications are made in the Sheriff Court

As in the High Court, the reasons for questioning or introduction of evidence are not always provided by the defence at the stage of making the application. As Table D8 shows, in 2 cases the defence explained that the evidence was intended to address the credibility and reliability of the complainer. In the second case, the defence also referred to motive for false allegation.

Use of exception and exclusion clauses (s274(1) (a), (b), (c) and s275(1) (a),(b), (c))

Explicit reference to clauses occurred in 2 applications: in one case s.275 (1) (a) 'rebut and explain' and s.274 (1) (c) 'sexual behaviour not forming part of the charge' were cited. In the other, the defence referred solely to s.274(1)(c) 'sexual behaviour not forming part of the charge'.

Table D.8 Applications made in the Sheriff Court

Results of application to introduce sexual history or sexual character evidence in the Sheriff Court

One Sheriff Court application was wholly successful, 2 were partially successful and one was refused by the judge.

SHERIFF COURT TRIALS IN WHICH SEXUAL EVIDENCE WAS INTRODUCED BUT NO APPLICATION WAS MADE

Six Sheriff Court trials involved questioning on sexual matters in the absence of an application. Three of these involved adult female complainers who were currently working, or who had worked, in prostitution. In all 3 cases, this fact was raised initially by the prosecution during the complainer's evidence-in-chief in the context of establishing the context and antecedents to the offence, and subsequently picked up by the defence in cross-examination.

In all 6 cases, sexual character evidence was used to challenge the woman's credibility and reliability.

Table D.9 Sheriff Court trials with sexual evidence introduced without

application

SEXUAL EVIDENCE INTRODUCED BY THE JUDGE OR PROSECUTION

High Court

A key difference between the earlier research by Chambers and Millar (1986) and Brown et al (1992; 1993) and the current study concerns the incidence of the use of 'good' character evidence led by the prosecution. The earlier research found that the Crown frequently led evidence of the complainer's virginity, chastity or fidelity in order to strengthen a case of lack of consent and that this inevitably resulted in a vigorous counter-attack by the defence. The current study found that 'good' character evidence ( e.g. complainer was a virgin, had only ever had one sexual partner, was a faithful wife) was led in only a small number of cases (n=5). However, these assertions of 'good' character were always challenged by the defence.

In a small number of cases (n=6) in the current research, it was the evidence led by the prosecution that became the starting point for an application made by the defence. The exception clause 'rebut/explain' (s.275 (1) (a)) affords the defence the opportunity to pick up on evidence or questioning led by the prosecution as part of the complainer's evidence-in-chief. Four applications cited 'rebut/explain' as a sole clause, although it was referred to in combination with 'interests of justice' in another 14 applications. 'Rebut/explain' cases involved debates about what the Crown had 'adduced' or intended to adduce, specifically whether the Crown had adduced certain information, exactly what had been adduced, and whether an application was necessary. For example, in one such case, the defence intimated to the court that he had not anticipated making an application, but was provoked into doing so because of something that was led by the Crown in the complainer's evidence-in-chief. Specifically, the Crown had asked the young complainer about the extent of her knowledge about sexual matters when she was 15 years old, and she had replied 'I did'na ken anything other than what I got in school.'

In 3 other cases which resulted in an application by the defence, the complainer either was or had been working as a prostitute around the time of the offence. This evidence had been introduced by the prosecution during the complainers' evidence-in-chief, in the context of establishing the context and antecedents to the offence.

There were no incidences of sexual history evidence being introduced as a result of judicial intervention. In a small number of cases (n=4) the judge attempted to clarify the complainers' position or response to a defence question which concerned the complainers' sexual history or sexual character, but the evidence was not initiated by the judge.

Sheriff Court

Three of the Sheriff Court trials without applications involved adult female complainers who were currently working, or who had worked, in prostitution. In all 3 cases, this fact was raised initially by the prosecution during the complainers' evidence-in-chief. Although these cases did not involve applications, their involvement in prostitution was

subsequently picked up by the defence in cross-examination and used to challenge the woman's credibility and reliability.

OBJECTIONS OR INTERVENTIONS TO THE USE OF SEXUAL EVIDENCE

Objections and interventions when evidence strays beyond what was agreed in application

It is clear from this research that there are instances in which sexual evidence is introduced without any application giving permission to do so, and instances in which questioning permitted by application then strays beyond the boundaries set in the application discussion. Also in 2 of the 5 High Court applications that were refused, the defence still managed to introduce sexual evidence without any objection from the prosecution or judge.

The prosecution rarely objected to defence questioning which strayed beyond the boundaries set within the application or when such questioning did not conform to what the defence had set out in the application. The prosecution objected in 3 cases, all of which were upheld by the judge.

Where an application had been partially successful and the defence strayed beyond what was agreed in the application, the judge intervened to remind the defence of the parameters in 2 cases.

Objections and interventions where sexual evidence is introduced without application

There were no objections or intervention in the 9 Sheriff Court trials in which sexual evidence was introduced.

E. THE USE OF THE DEFENCE OF CONSENT

The following part of the report concerns the fifth objective:

(e) To explore how often the defence of consent was employed by the defence and at what point in the trial this was introduced.

The Role of Consent in Sexual Offence Trials

The role of consent makes adult sexual offence trials different from most other criminal proceedings (see, for example, Temkin, 2002). In most sexual assault cases, consent is the main point at issue. Where the alleged offence occurs in private (as was the case in virtually all of the cases in this research), it often comes down to the word of the complainer against the word of the accused. Sexual offence trials still turn on the credibility of the complainer because, in the majority of cases, consent plays a key role, and the key prosecution evidence in relation to the issue of consent is the evidence of the complainer. In many of the cases examined in this study, the sexual activity was not contested by the accused. This is particularly the case where forensic evidence is available. Since the complainer is generally the only witness, the main thrust of the defence usually rests on attempts to cast doubt on the credibility of the complainer as a reliable witness. Furthermore, the fact that consent is the central issue in most adult sexual offence cases means that the complainer's character is put on trial in ways that are unmatched in other areas of the law (see, for example Temkin, 2002).

Consent in the High Court

Information about the use of consent was obtained from the taped proceedings. Consent was employed by the defence in at least 35 of the 84 trials in which tapes were listened to. Consent was identified by the defence as the main reason for making an application in 20 trials. Four of these trials involved mistaken-belief-in-consent in which the defence sought to introduce sexual behaviour between the complainer and someone other than the accused on the basis that, because each of the accused knew about this alleged sexual behaviour involving third parties, he believed that the women consented to sex with him.

In at least another 15 trials, although consent was not specifically cited as a reason by the defence in the application, it was nonetheless a key defence argument deployed in the course of the trial, where the defence attempted to show the women had a 'general predisposition' to consent (either with the accused on the particular occasion or more generally, with anyone). In these cases, the issue of consent was invariably introduced during the complainer's cross-examination, but also continued as a defence line of argument through the cross-examination and examination of other witnesses in the case. Any type of prior sexual conduct with the accused was argued, by the defence, as being relevant to the issue of consent. Examples of sexual conduct cited by the defence as part of a consent argument included sexual intercourse, kissing, cuddling, fondling, necking, sitting on laps, and 'intimate dancing' as well as

behaviour that did not involve any actual physical contact such as 'making eyes' 'suggestive talk', and 'fooling around'.

In particular, where the accused was a partner or ex-partner of the complainer there was a strong assumption of consent. The fact of a past sexual relationship between the complainer and the accused was invariably presented as straightforwardly indicating consensual sex or, at the very least, as posing a very strong counter to any presumption of non-consent. The idea that one can indicate consent in this way is crucial to understanding the perfunctory nature of some applications, particularly those which merely invoke the 'interests of justice'

The relevance of the prior sexual contact to consent on the occasion of the alleged offence is a critical presumption, and one that is highly contentious. The presumption that consent on one occasion is open to interpretation as consent for all time, subverts the idea of sexual autonomy or sexual choice on each occasion of sexual activity. It does not give full recognition to the idea that consent must be to a particular act at the particular moment it takes place.

Consent in the Sheriff Court

Defence arguments concerning consent were less common in the Sheriff Court trials than in the High Court trials.

A possible explanation for this lies in the types of cases that are typically heard in the different courts. Whereas in the High Court, trials typically involve one adult female complainer and one male accused and a charge of rape, the Sheriff Court cases typically involved offences against children, and involved a blood or affine relationship between the complainer and accused, where an argument about consent is less easily made to the jury. In the Sheriff Court, the defence tended to focus on the credibility and reliability of the complainer(s).

Consent tended to be introduced in those Sheriff Court trials which involved more recent allegations, and where there was no close familial relationship between the complainer and the accused. Although over a third (n=24) of Sheriff Court trials took place within 2 years of the commission of the alleged offences, under a third (n=21) took place over 10 years later, and so many complainers were adult at the time of the trial. Somewhat paradoxically, consent was also more likely to be led in those cases which involved the age-related statutory offences where the complainer is, legally, under the age of consent.

F. TRIAL LENGTHS AND EXTENT OF DELAYS

The sixth research objective is addressed in this section:

(f) To provide data on the length of sexual offence trials, and the causes and extent of delays in trials starting or being adjourned.

Delay in trials starting, High Court

Some information on delays and adjournments in advance of the commencement of trials could be determined from the written sources, for example, successive dates set for trial recorded on the cover of the indictment, or noted in the case papers, or detailed in legal correspondence, but the precise reasons for delays to trials starting or being adjourned were not always available in the records consulted in this research.

Information on changes to the dates on which trials were scheduled to commence was recorded for 289 of the 313 sexual offence cases that were heard in the 3 year period. In over a third of cases where this information was available, there was no change to the scheduled trial start-date. In 30 percent of trials, there was one change to the start-date; in 18 percent there were 2 changes; in 8 percent there were 3 changes; in 4 percent there were 4 changes and in just over 5 percent there were more than 5 changes resulting in delay to the trial commencing.

Information on reasons for delay was limited. There were a small number (4-6) of references to the inability to obtain witness statements, non-attendance or disappearance of a Crown witness, and, in 2 cases, the ill-health of a Crown witness was recorded as a reason for re-scheduling the date of trial. Noted on the indictment for one case, which was adjourned on the day of the trial, was 'waiting for papers'; 2 others were adjourned on the day to allow legal submissions, and 2 more were marked 'joint motion'.

Table F.1 Cases with recorded changes to start-date

Note: 24 missing cases

Duration of trials in the High Court

Sexual offence trials in the High Court ranged from one day (9%) to 29 days (<1%) in duration. Most trials took between one and 4 days for all the evidence to be heard and a verdict reached.

Table F.2 Duration of trials in the High Court

Note: 4 cases missing

Duration of trials in the Sheriff Court

In both Sheriff Court locations, the average trial length was 3 to 4 days. In Edinburgh, one trial lasted seven days; in Glasgow trials ranged from 2 to eleven days. More high number multiple charge cases (with upwards of ten charges) were heard in Glasgow, hence the longer average trial length in this court.

Table F.3 Duration of trial, Sheriff Court

G. SPECIAL MEASURES AND JUDGES' POWERS

This section addresses the seventh, eighth and ninth objectives:

(g) To examine the extent and nature of the use of special arrangements to assist complainers in giving evidence.

(h) To examine how often, and in what circumstances, judges used their powers to clear the courtroom before evidence from the complainer was led.

Availability of special arrangements to assist complainers in giving evidence

Many jurisdictions around the world have introduced a range of special measures which have the potential to be of assistance to the complainer in sexual offence trials, such as screens and closed circuit television links, video-recorded examination-in-chief and cross-examination, communication aids, the use of intermediaries, allowing supporters to sit close by, physical arrangements of furniture, and the removal of gowns and wigs where children are involved. Such arrangements may help reduce distress and are intended to enable a complainer to give evidence more effectively.

Closed circuit television is available in Scottish courts and involves the transmission of video and audio signals from one site to another. The witness is able to give evidence from a remote location, usually a room within the court building, which is equipped with the appropriate technology. The evidence is transmitted to the courtroom from the remote site, so the court can see and hear the witness. A mobile screen can be used to obstruct a witness' view of the accused. Other physical arrangements may be used to facilitate this, such as a special seating arrangement.

The use of special measures

The use of some sort of special measure was recorded in 96 of the 313 High Court trials, and in 19 of the 62 Sheriff Court trials. This suggests that special measures are not used to any great extent, although it should be recognized that only the most conservative estimate of the use of such measures are given here, as the use of a special measure is not always routinely recorded.

Table G.1 The use of special measures

Cases in which special measures are used

In both types of court, special measures tended to be used with younger complainers and/or in cases where the accused was a member of the complainer's family. In the High Court, the use of a support person/counsellor was the most commonly used special measure, with 55 trials involving the presence of such a person and an additional 20 trials involving a support person in conjunction with another special measure.

Judges' powers to clear the courtroom before the complainer's evidence from the complainer was led

In Scotland, it is normal practice to clear the court of the general public before the complainer gives evidence.

There was one High Court trial in which it appeared that the court was not cleared for the complainer's evidence.

H. CONCLUSION

The Effectiveness of the 1995 'Shield' Legislation

The research has shown first, that applications to introduce sexual evidence are being made less frequently now than they were in the late 1980's and, second; that when applications made to introduce sexual evidence are made, then they are likely to be successful and the evidence or questioning is invariably allowed to go ahead.

At the same time, the research also shows that sexual evidence is still introduced without any application being made to do so, and even when evidence has been allowed following an application, subsequent questioning can stray beyond the boundaries set in the application discussion. As noted, 9 out of the 18 rape and clandestine injury cases examined in detail which did not involve an application, contained some sexual history or character evidence. If this pattern is generalised to all such serious sexual offence trials then we can conclude that the majority still contain sexual history or sexual character evidence. Whilst the requirement to make an application to the court, if duly enforced, can remove some of the excesses of questioning on sexual matters, it is clearly not enough. Although some evidence is excluded, much still does persist.

Shared presumptions of relevance

How to account for the relative ease with which sexual evidence is still being introduced, with or without application? A key factor appears to be the prevalence of shared presumptions concerning the relevance of certain types of sexual evidence. In application cases, the most common reasons for introducing sexual evidence put forward by the defence concerned past sexual behaviour with the accused. This is invariably used to try to show consent, and is presented as self-evident. There is little or no objection to this type of evidence, suggesting that the defence presumption about the relevance of such evidence is shared by the judge and prosecution, in particular when the complainer and accused have been previously married or have had some sort of past relationship.

Lack of requirement to focus on relevance

Discussion between counsel and judge concerning the relevance and admissibility of such evidence and its probative value was, in the majority of cases, limited, and frequently non-existent. Indeed, the relevance of the proposed evidence to the trial issues was rarely revealed during the application discussions. With no statutory requirement in the legislation that any such relevance be shown by the defence in making an application, the legislation gives little leeway for the probative value of sexual evidence to be weighed against its potentially prejudicial effects. This was a recognised failing and weakness of ss274/275 and one which the new 2002 Act has been designed to address.

Effect of sexual evidence

While it is difficult to assess the full effect of such evidence on the outcome of a trial, many researchers argue that it is very likely that a high rate of admission of such evidence is an important factor in the low conviction rate for rape and other serious sexual offences ( e.g. Chambers and Millar, 1986; Lees, 1996; Lees & Gregory, 1993, 1996; Temkin, 2000, 2002). This may be one of the causal factors contributing to the low conviction rates documented in the High Court cases in this study. Although jury research is rare, in the US, such research has tended to show that jury prejudice against the complainer is a consequence of the use of sexual history evidence (Kalven & Zeisel, 1966).

Another significant consequence of the use of sexual evidence is that it deters victims from reporting the offence. A Home Office report, Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (1998), suggested that one reason why women who do report rape to the police subsequently withdraw their complaint is that they are deterred by the prospect of being cross-examined on their previous sexual history or sexual character. The report recognised that while giving evidence may be stressful for any witness, it is particularly traumatic for complainers in sexual offence trials.

Although complainers were not interviewed, the recordings of trials indicated that many complainers were extremely distressed when giving evidence, and particularly during cross-examination by the defence. Complainers can be in the witness box for long periods of time, during which they are subjected to continual questioning concerning each detail of the incident(s) in the charge(s). When, in addition to the normal process of cross-examination and probing of the complainer's credibility, this also involves past sexual history and/or suggestions of immorality or sexual character, then it is likely to be experienced as particularly distressing. The adversarial process whereby the defence re-presents the complainer's version of events as consistent with the account of the accused, typically involving claimed indicators of consent, may be experienced by the complainer as a deeply personal attack. While numbers are not sufficiently large to present a statistical correlation between the use of sexual history or character evidence and distress, our findings are certainly consistent with such an association. In cases where the complainer and accused are known to each other (and most are), questioning is often particularly detailed, for example, focusing on intimate aspects and sexual habits and preferences. The potential for humiliation and the ordeal of giving evidence in a sexual offence trial should not be under-estimated.

Undoubtedly, rules limiting the use of sexual history and sexual character evidence and restricting its admission on the grounds of relevance can help to reduce the complainer's ordeal of giving evidence in court, but documentation of the 1995 Act indicates that these rules alone are simply insufficient to protect the complainer from distress and humiliation.

Lack of enforcement of legislation

On the basis of this research, defence counsel in Scotland continue to deploy a range of adversarial tactics and questioning routines which involve the harassment of the complainer in sexual offence trials, and some invoke and use sexual history and sexual character evidence in a way that undermines the spirit of the 'shield' legislation.

Notwithstanding, a key consideration in any discussion about breaches of the legislation must also concern the lack of objection and intervention by the judge, who has ultimate responsibility for legal matters in the court, and from the prosecution when such breaches occur. There was found to be a distinct lack of reaction by the Crown and the court when the legislation is breached. Although there may be many reasons why the Crown may choose not to object to a particular line of evidence, the lack of opposition may signal acceptance of the proposed questioning to the judge. When evidence which is prohibited is introduced without an application to do so, or strays beyond the boundaries specified by the court in an application without any intervention or objection then this arguably undermines the effectiveness of the legislation, and contributes to the distress experienced by the complainer in such trials.

On the basis of these findings, it must be concluded that the reforms of the criminal law and procedure concerning sexual offences as evidenced in the 1995 'shield' legislation are limited in effectiveness. Whilst the reforms resulting in the 1995 Act were imperative, they nevertheless remain inadequate. If shared presumptions about the relevance of sexual history and character evidence are a significant factor in the ineffectiveness of the 1995 Act, this is also likely to effect the operation of the more recent legislation. Real and marked changes in the prevalence of sexual assault and in the criminal justice response to such crimes may be dependent upon significant changes in social values and understandings of gender and sexuality. Research on the operation and effectiveness of the 2002 Act will be able to throw further light on this issue.

APPENDIX 1

Ss.274 & 275 Criminal Procedure (Scotland) Act 1995

Restrictions on evidence relating to sexual offences

274 - (1) In any trial of a person on any charge to which this section applies, subject to section 275 of this Act, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer -

(2) This section applies to a charge of committing or attempting to commit any of the following offences, that is to say -

(3) In this section "complainer" means the person against whom the offence referred to in subsection (2) above is alleged to have been committed .

(4) This section does not apply to questioning , or evidence being adduced, by the Crown.

Exceptions to restrictions under section 274

275 (1) Notwithstanding section 274 of this Act, in any trial of an accused on any charge to which that section applies, where the court is satisfied on an application by the accused -

(2) Where questioning or evidence is or has been allowed or admitted under this section, the court may at any time limit as it thinks fit the extent of that questioning or evidence

(3) Any application under this section shall be made in the course of the trial but in the absence of the jury, the complainer, any person cited as a witness and the public.

REFERENCES

Adler, Z. (1987) Rape on Trial London: Routledge and Kegan Paul

Brown, Burman & Jamieson (1992) Sexual History and Sexual Character Evidence inScottish Sexual Offence Trials Scottish Office Central Research Unit

Brown, Burman, & Jamieson (1993) Sex Crimes on Trial: Sexual Evidence in the ScottishCourts Edinburgh: Edinburgh University Press

Chambers, G. and Millar, A. (1986) Prosecuting Sexual Assault Edinburgh: Scottish Office

Central Research Unit

Chambers, G. and Millar, A. (1983) Investigating Sexual Assault Edinburgh: Scottish

Office Central Research Unit

Field, D. (1988) The Law of Evidence Edinburgh: W Green & Son

Home Office (1998) Speaking Up For Justice: Report of the Interdepartmental WorkingGroup on the Treatment of Vulnerable of Intimidated Witnesses in the CriminalJustice System London: Home Office

Lees, S. (1996) Carnal Knowledge: Rape on Trial London: Hamish Hamilton

Lees, S. and Gregory, J. (1993) Rape and Sexual Assault: A Study of Attrition London:

Islington Council

Lees, S. & Gregory, J. (1996) 'Attrition in rape and sexual assault cases' British Journal ofCriminology vol 36, no. 1 pp1-17

Scottish Executive (2000) Redressing the Balance: Cross-Examination in Rape and SexualOffence Trials

[Available online at : http://www.scotland.gov.uk/consultations/justice/rtb-00.asp]

Temkin, J. (2000) 'Prosecuting and Defending Rape: Perspectives from the Bar' Journal of Law and Society 27(2) 219-248

Temkin, J. (2002) Rape and the Legal Process [2 ^nd edition] Oxford: Oxford University Press

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