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Chapter Eight: Cases without s.275 Applications

8.1 This chapter is concerned with High Court sexual offence cases that did not involve a s.275 application. It considers what leads to the absence of an application in these cases and whether, when such cases go to trial, questioning about sexual history and sexual character evidence was indeed entirely absent.

8.2 Chapter Three has already shown the distribution of cases without and with s.275 applications and their flow through the criminal justice system. Of all High Court sexual offence cases between 1st June 2004 to 31st May 2005, slightly more than half, (128 or 55%) did not involve an application. The majority of these cases ended in a "guilty" plea, a small number did not result in a trial for other reasons and only 35 cases (27%) involved a "not guilty" plea and proceeded to a trial. This contrasts with the 88 percent of cases with an application that did go to trial.

8.3 Because the submission of a s.275 application is now part of the pre-trial process, it is possible for a case to involve the lodging of an application without a subsequent trial taking place, because the accused subsequently pled guilty, failed to appear or the case was deserted. In fact this was relatively unusual and only happened in 12 of the 103 cases with applications.

Why applications are and are not made

8.4 Chapter Three has also shown that the likelihood of an application varies by the charges involved and by the plea. One reason why the rate of applications varies with the charges is because particular charges create more or less reason for Defence interest in attacking the credibility of a complainer through her or his sexual history or character. A higher incidence of applications in rape cases than in other sexual offences could be anticipated because of the particular weight placed by the Defence on testing the credibility of the complainer in these cases. In Scots law, rape is also one of the "pleas of the Crown" and therefore one of the most serious charges that can be brought.

8.5 Sexual history evidence is often presented as directly relevant to contradicting the complainer's account of absence of consent to sexual intercourse, a key element in the crime of rape, simultaneously attacking her credibility. Eighty one percent of the rape cases in which a defence of consent was lodged also involved a s.275 application. In comparison, only 40 percent of rape cases involved an application when no defence of consent was lodged. However, it is not clear why applications should also be relatively high in cases that involved charges not of rape but indecent assault, attempted rape, or assault with intent to ravish. Consent cannot be an issue in the same way in these cases and while the credibility of the complainer is always potentially at issue when he or she is a key witness, it is likely to carry less weight than in rape cases. It seems surprising therefore that the rate of s.275 applications was close to that of rape in cases of indecent assault rather than being relatively rare as they were in cases of sodomy, incest and lewd and libidinous practices.

8.6 Further analysis of the relatively low rate of s.275 applications in cases with charges of incest, sodomy and lewd and libidinous practices suggests that this is influenced by the fact that such cases typically involve children. It was possible to identify the ages of complainers in a total of 136 cases, 97 of which involved charges of rape. There were no applications in four fifths of the small number of cases (39) in which the complainer was under 12 years of age, none in almost two thirds of all cases in which a complainer was aged 12 to16 years, and none in over half of rape cases in which the complainer was aged 12-16 years. Note that in the case of rape, being a teenager afforded little protection against sexual history or character evidence.

8.7 It was noted in the introduction that the majority of cases indicted in the High Court, in which there was no application, ended in a guilty plea rather than going to trial. Nevertheless, in almost a quarter of rape trials (24%) and almost half of trials that did not involve charges of rape (48%), there was no s.275 application to introduce sexual history or character evidence.

Table 8.1 High Court Sexual Offence Trials, 1st June 2004 to 31st May 2005: Charges by the absence or presence of a s.275 application.

8.8 It is not possible to say with certainty whether in some or all of these cases the Defence actively sought possible evidence to make an application but found none. However, interviews with legal practitioners suggest that this is likely, at least in cases of rape and perhaps also in the case of other charges. Many of the legal practitioners interviewed agreed that the Defence routinely consider whether there is sexual history or character evidence they may wish to introduce and often make active enquiries to seek such possible evidence.

8.9 It is likely then that in the majority of trials in which there was no application, nothing was known to the Defence concerning the complainer's sexual history or character which could be used to question credibility or to suggest consent to sexual intercourse in the case of rape. The only likely exception concerns the small number of cases in which the accused had a previous conviction for an analogous sexual offence. In such cases it was possible that the Defence was deterred from making an application by the possibility that the accused's previous convictions would then be put before the court.

Previous convictions deterring s.275 applications

8.10 The circumstance that was consistently suggested in interviews with legal practitioners as one in which the Defence might choose not to make an application, despite being aware of past sexual history or character evidence, was when there were analogous previous convictions. Data on actual practice in cases with analogous convictions, however, suggested at most a very modest effect on whether or not an application was made, which rather contradicts the views of those practitioners who argued that it was a very significant deterrent. This was discussed at length in Chapter Six. In order to reiterate the point, the table presented in Chapter Six is represented here, formatted to show percentages, despite the small numbers and so it is necessary, therefore, to read these with caution.

Table 8.2 All Rape Cases (whether going to trial or not) 1st June 2004 to 31st May 2005: Previous Convictions by s.275 applications

* Includes cases with Defence only and Crown & Defence applications.

Does the absence of a s.275 application from a trial mean no sexual history or character evidence?

8.11 Twenty five rape trials (over the course of the case mapping period) did not involve an application. Eight of these were included in the in-depth sample of cases, and so it was possible to check whether or not complainers were questioned about their sexual history or character during the trial and to consider whether inferences might be made from these 8 trials to the larger group.

8.12 In case 012, the Advocate Depute established that the complainer and the accused were ex-partners who had previously lived together for a number of years and had had children together. Because this involved establishing a past sexual relationship, some practitioners might have made an application, but none was made in this case, perhaps because the Advocate Depute did not intend to ask about sexual matters. He simply began with the question "Were you in a relationship with [the accused] for a number of years?" In cross-examination, the Defence asked the complainer if she had "consensual intimacy" on a particular night approximately 3 weeks before the alleged event. This was a clear breach of the procedures. However, the pattern of decision-making in cases with applications studied suggests that it is very likely that if the procedures had been followed and a s.275 application had been made, then it would have been allowed. This was the only case that involved questions about sexual history that should have involved a Defence application under both the current legislation and the previous legislation. There was no judicial objection. In the same case, the Defence also put questions to the complainer that implied that she was of a certain character: "you were going to discos all the time, you were going out to get drunk all the time and you were having a great old time" (case 012).

8.13 In one other case, 240, the Defence asked the complainer a question which bordered on sexual history and character evidence: "Have you ever dated somebody from the Middle East?" but this line was not developed into any more explicitly sexual questioning or detail which unequivocally required an application. The Defence also asked very detailed questions about not only how much she had to drink on the evening but about her "student" drinking practices which bordered on an attack on her character, as well as developing the suggestion that drink may have made her behave in unusual ways, through a series of questions culminating in directly asking:

Defence: "Do you think having a drink affects your sex drive in any way?"

Complainer: "No not really."

Defence: "Have you ever heard of the expression beer goggles? Making you look at people you would not otherwise look at?"

Complainer: "Yes."

Defence: "So would you agree with me that having a drink might make some people more foolish with the opposite sex?"

Complainer: "Yes." (Case 240)

8.14 Suggestions about drunkenness that border on character attacks were also made by the Defence in other cases. For example, suggestions about "loud and drunken behaviour" were put to the complainer in case 192. In case 094 both the Crown and the Defence asked very detailed questions about drinking habits. The Crown also asked the complainer if she had taken drugs and the Defence made similar suggestions about the possible consequences of alcohol to those put to the complainer in case 240.

8.15 In 2 cases the Crown asked explicit questions about sexual history, which should have involved an application under the current legislation, and again these cases involved a breach of procedure, although they may have been allowed if an application had been made.

8.16 In case 214, the Advocate Depute asked:

AD: "Had you had sex with [accused] before?"

Complainer: "No."

AD: "Had you had sex with other boys before this incident?"

And at this point the Defence intervened:

Defence: "Don't answer that question. I shouldn't be jumping to the defence of a Crown witness, my Lord, but there's no s.275 application."

Judge: "Yes, indeed. I think you should withdraw that question."

AD: "Yes, sorry my lord. Did you want to have sex with [accused]?"

Complainer: "No."

8.17 In case 241, the Advocate Depute asked the complainer fairly detailed questions about her sexual history in the context of her relationship with her boyfriend, who was not the accused.

AD: "Was he your first sexual partner?"

Complainer: "Yes."

AD: "Did you often stay at (boyfriend's) house?"

Complainer: "Yes, a few times a week."

AD: "And did he stay at your parents'?"

Complainer: "Yes 2 or 3 times a week."

AD: "Before this happened when had you last had intercourse?"

Complainer: "About a month before."

AD: "Have you ever had anal intercourse?"

Complainer: "Never."

8.18 On the one hand, some of the evidence led by the Crown in case 125 can be read as evidence suggesting "bad" character and, as such, perhaps it should have involved an application. On the other hand, some questions were necessary to provide a jury with background context to the alleged events. These included asking the complainer who was 14 years old at the time of the offence: "Did you smoke in May of last year? Did you ever drink alcohol? Being 14 did you ever buy alcohol?" The narrative of events involved the complainer asking the much older accused to buy drink and cigarettes for her and her friend. Had they been included as proposed questions in an application, it would either have been allowed or judged as an unnecessary aspect of the application. However, some of the questioning that could be read as suggesting "bad" character went beyond the requirements of providing context for the jury. For example, the Advocate Depute also asked: "When was the first time you had an alcoholic drink? Had you ever been drunk?"

8.19 In sum, out of 8 cases, questions that required an application were introduced by the Defence and arguably also the Crown in one case (012), and by the Crown in at least 2 (214, 241) other cases.

8.20 In addition, questions about alcohol use and its effects, which bordered on character attacks were asked by the Defence in 4 cases. The sequences of questioning in clear breach of the legislation were typically short and in several cases their subject matter, involving sexual events between the complainer and the accused, was likely to have been allowed if the procedures had been followed. Nevertheless, some questioning asked by the Crown may have been experienced as an invasion of the dignity and privacy of the complainer and was not immediately obviously relevant to the guilt of the accused.

Objections to sexual history and character evidence without application

8.21 Judges took the view that they would always intervene if prohibited evidence was introduced by the Defence without an application, even if the Crown did not object. Several drew attention to the fact that this was a different situation than under the previous legislation when silence from the Crown would be interpreted as agreement and therefore a reason not to intervene. They also spoke of the need to be alert to potential breaches by the Crown.

Comparison with the baseline study

8.22 In both the baseline study and the current study, trials without s.275 applications were examined to check whether the prohibited evidence was indeed absent. In making a comparison between breaches of the procedures before and after the current legislation, it is very important to remember that only the Defence was previously prohibited from introducing sexual history and sexual character evidence concerning a complainer, and also that the exclusion did not encompass general character.

8.23 Comparison of cross-examination of complainers before and after the current legislation suggests a decline in breaches of the procedure by the Defence with respect to sexual history and sexual character evidence being introduced without application. Among the sample of such cases without applications examined in detail in the baseline study, half involved some breach by the Defence during cross-examination of the complainer. In the current study, only one in 8 cases clearly involved such a breach. Yet this must be placed alongside the finding that most trials now involve an application, and that the contents of applications in terms of the evidence sought are much more extensive than previously.

8.24 The Judges interviewed stressed that they would actively intervene if the Defence introduced such questioning without an application and acknowledged that this was different from the situation under the previous legislation. Some also spoke of needing to be alert to breaches by the Crown. However, examination of cases indicates that breaches can still occur with no judicial intervention. This is another example of a disjuncture between practitioner beliefs about court practice, and the research findings.

Chapter Summary

8.25 This chapter has sought to further clarify whether cases without s.275 applications are distinctive in other respects and to examine whether sexual history and character evidence was indeed absent from cases without applications.

8.26 The likelihood of a sexual offence case having or not having a s.275 application varied by charges and not surprisingly, with rates of "not guilty" pleas. The effort involved in preparing a s.275 application is not likely to take place if early indications suggest an accused will plead guilty. A higher incidence of applications in rape cases reflects the centrality of the issue of consent to sexual intercourse and the particular weight placed by the Defence on testing the credibility of the complainer. Rape cases in which a defence of consent was lodged were twice as likely to involve an application as those without such a defence. However, it has to be noted that applications were also relatively high in non-rape cases involving indecent assault, attempted rape or assault with intent to ravish in which consent was not an issue. An absence of applications characterised the majority of cases involving children under 12. The modest nature of the effect of the accused's previous convictions on deterring the Defence from pursuing a s.275 application discussed in Chapter Six was reiterated.

8.27 Eight rape cases in which there was no s.275 application were studied in detail. The Crown was rather more likely than the Defence to introduce prohibited questioning about sexual history in the absence of an application. Where this occurred, the sequences of questioning in breach of the legislation were short, concerning sexual events between the complainer and the accused. These questions were likely to have been allowed if the procedures had been followed. Nevertheless, some questioning asked by the Crown may have been experienced as an invasion of the dignity and privacy of the complainer and was not immediately obviously relevant to the guilt of the accused. For example: "Had you had sex with other boys before this incident?" and "Have you ever had anal intercourse?" In one of the 8 cases, the Defence asked about sexual history of the complainer in the absence of an application.

8.28 In 4 of the 8 cases, the Defence attacked the character of the complainer by asking very detailed questions about the complainer's alcohol use. Questions about alcohol use were also pursued by the Crown in 2 of the cases.

8.29 Comparison with the baseline study suggests a marked decline in one particular breach of the procedure by the Defence, that is, it indicates a decline in the introduction of sexual history or sexual character evidence without an application. Questioning that bordered on a character attack that was non-sexual remained quite common and was frequently introduced through sequences of questions about alcohol consumption.

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