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Chapter Ten: Conclusion
Increase in sexual history and character evidence
10.1 The research has shown first, a marked increase in the numbers of s.275 applications. Almost three quarters (72%) of High Court sexual offence trials now include an application to introduce sexual history or character evidence. The research has also shown that applications were invariably allowed by the court. The extent to which sexual history and character issues were permitted to be present in trials following an application has therefore grown significantly.
10.2 At the same time, the research also found that sexual history and character evidence was being introduced without an application to do so, and where evidence or questioning had been allowed by the court following an application, the subsequent questioning could stray beyond the boundaries set at the preliminary hearing. Once evidence was before the jury, trial Judges tended to allow it, even if the nature of the evidence was such that it did require an application.
10.3 Previously, about half of rape trials without s.275 applications, involved some sexual history or sexual character evidence introduced without an application to do so. A comparison of cross-examination of complainers before and after the current legislation suggests a slight decline in breaches of the procedure by the Defence with respect to sexual history and sexual character evidence being introduced without application. Yet this must be placed alongside the findings that most sexual offence trials now involve an application to introduce sexual history and sexual character evidence, and these are almost always successful at least in part.
Character Evidence
10.4 The impact of the legislation is relatively difficult to assess with respect to more general character evidence. There is some variation in practice among practitioners concerning whether some evidence actually requires a s.275 application. Examples were found of the same type of questioning concerning alcohol consumption by the complainer being proposed in applications and being introduced without application. Although non-sexual character evidence was a feature of about a quarter of the questioning proposed in s.275 applications, interviews with practitioners suggested that the Defence may be more vigorous in seeking out character evidence than previously. This may again be partly due to the necessity of the wider scope of the Act, and the need to make an application in advance. Instances where the Defence strayed over the boundaries of questioning set by the court were characterised by attacks on the complainer's character, as noted in Chapter Seven. In addition, general character attacks by the Defence were possibly the most common forms of evidence or questioning introduced in cases where there had been no application made at all. It seems clear, therefore, that evidence of "bad" character has not been curtailed or reduced by the 2002 legislation.
10.5 There are a number of pertinent factors contributing to this paradox. First, against the background context of "Anderson Appeals", the requirement to produce a written s.275 application in advance, compels the Defence to apply their mind to the construction of an argument in which relevance is claimed for questions concerning some aspect of the sexual history or character of the complainer. Conversely, under the 1995 Act, a claim about the form, nature and value of such evidence or questioning was made in the course of the trial, as the case unfolded.
10.6 Second, the 2002 Act broadened the scope of restricted evidence to include all questions about the complainer's character. It is important to remember that not all of the applications in the current study involved proposed questioning that would previously have required an application. Many applications involved a relatively extensive mix of types of questioning and evidence sought and overall, as Chapter Four noted, at least 40 percent of the questioning would not have involved an application under the previous legislation. When considering the distribution of the nature and types of evidence or questioning sought and introduced by means of an application, as listed in Appendix 4 and discussed in Chapters Four and Five, it is important to note that much of the evidence introduced was as a result of this wider scope of the legislation, and would not have figured in applications prior to the 2002 Act. This includes: evidence or questioning sought about the general character of the complainer; non-sexual past history with the accused; and the behaviour of the complainer after the offence. Whilst these matters were certainly pursued by the Defence during the trial prior to the 2002 Act, they were not required to be the subject of an application. S.275 applications now encompass several types of questioning and evidence that complainers were previously exposed to in the course of trials but without any prior s.275 application.
10.7 Third, the Crown are now required to make a s.275 application to introduce restricted evidence when they were not previously required to do so, and were responsible for a quarter of the applications made.
10.8 Fourth, in recent years, Scotland has seen some far-reaching developments, in terms of a set of wider reforms that have streamlined procedure for serious prosecutions. These have quite considerably changed the legal landscape in which sexual offences trials are conducted. The greater emphasis placed on early preparation for preliminary hearings, more extensive and earlier disclosure by the Crown of material and evidence that may be pertinent to the decision of whether or not to lodge a s.275 application and the effect of "Anderson Appeals" and other influential Appeal Court decisions, along with the requirement of the 2002 Act that the application be made in advance and in writing, have combined to heighten early consideration of the possibility of a s.275 application by the Defence. There is little doubt that, taken together, these wider developments have contributed to the increase in s.275 applications.
10.9 Certainly sexual history and character evidence have now become much more visible. The more formalised procedure requiring written submissions seems, perversely, to make the Defence even more skilled at its introduction, whilst simultaneously giving more leeway for a greater range of matters to be introduced into cross-examination, as well as more attuned to its potential at a much earlier stage in the proceedings.
A Sharper Focus on Relevance?
10.10 The changes in procedures introduced under the provisions of the 2002 Act, and in particular, the requirement that the court take an evaluative approach to determining the relevance of the evidence sought, weighing the comparative benefit to the accused in admitting such evidence against any impact it might have on the dignity and privacy of the complainer, has provided both the means and the justification for a much sharper focus on relevance.
10.11 The requirement to make a written application to the court and for this to be discussed and decided at a preliminary hearing provides the opportunity for much closer attention to be paid both to the probative value and possible prejudicial effects of any evidence sought. Written applications list the evidence or questioning sought, often in great detail, and invariably state simply that the evidence is relevant to consent or the credibility of the complainer. Despite the opportunity afforded by the legislation for a sharper focus on the relevance of sexual history and character evidence, this has not resulted in very much discussion in court, as might have been anticipated.
10.12 A key question is whether the 2002 legislation has indeed led to a closer assessment of the relevance of sexual history and character evidence. A factor to consider here is the extent to which prior agreement between parties concerning the contents of applications influences the deliberations of the court. The research has shown that commonly there is discussion and exchange between the parties prior to the preliminary hearing and that consequently, this enhances the likelihood of agreement. However, there is little detailed discussion between the judge and the parties during preliminary hearings to decide applications as to the relevance of the proposed evidence.
10.13 While the written nature and required format of applications rendered them much more transparent than applications under the previous legislation, prior agreement between the Crown and Defence quite often meant minimal debate or discussion at preliminary hearings. In terms of the recommendations of the Bonomy Report (2002) to streamline court business, this can be read as a positive effect of the 2002 legislation.
10.14 It has been stated throughout the report that the position taken by the Crown is a key determining factor of whether or not an application is allowed by the court. Where the Crown supported the application, the court typically endorsed it without airing in any discussion the relevance of the evidence. Moreover, virtually all of the Crown applications were allowed.
10.15 Whilst most preliminary hearings were characterised by a lack of discussion of relevance, some cases have produced lengthy and lively discussions. For the most part, these are the cases where the relevance of questioning has been challenged by the Crown, although there were Defence applications in which the Crown acquiesced, but where the judge was not satisfied that the probative value outweighed the possibly prejudicial effects. The research has shown that the court disallowed some questioning or evidence which it considered to be too loosely phrased, too wide-ranging, lacking in specificity, or simply too speculative. There is little doubt that, if duly enforced, this procedure can, and does, remove some of the excesses of questioning on sexual and character matters that characterised many sexual offence trials pre-2002. However this has to be weighed against the fact that applications are almost always allowed, and there is relatively little discussion in court about the relevance of the evidence.
10.16 Another influential factor in undermining the anticipated rebalancing of the probative value of weakly relevant evidence against respect for the dignity and privacy of a complainer is the ease with which a "case" for relevance can be constructed. Several interviewees considered it relatively easy to construct a case demonstrating that any sexual history or sexual character evidence has some relevance to issues in the trial, in particular credibility or consent. This can again be attested to by the high incidence of applications that were allowed on these grounds. The research has shown that the court tended to take the view that where what is included in the application can be demonstrated to have some relevance to the issues in the trial, in particular, credibility and/or consent, then what might be termed "fair trial" considerations tend to outweigh the rights of the complainer.
Unintended Consequences
10.17 Given the significant increase in numbers of applications, and their very high rate of success, there is a marked increase in the amount of sexual history and character evidence being legitimately elicited and admitted than before. This means that there is more use of evidence of sexual matters in the court than previously
10.18 This leads us to conclude that the 2002 legislation has not gone in the direction intended. It has resulted in the introduction of more sexual history and character evidence than under the previous legislation, even allowing for the higher rates of sexual history and sexual character evidence introduced with disregard for the provisions under the previous legislation. The proportion of trials with applications have increased markedly, questioning on sexual history and character is now sought by both the Crown and the Defence, the numbers of multiple applications have doubled and the "belt and braces" approach adopted by Defence lawyers means that the questioning or evidence sought in written applications is now far more detailed and extensive than that sought in verbal applications made during the trial under the 1995 Act. Moreover, applications are rarely disallowed and the Defence is likely to introduce all of the evidence and question the complainer on all of the matters sought in the application.
10.19 The "belt and braces" or "scatter-gun" strategy adopted by Defence lawyers in the drafting of applications suggests that the objective is to find anything that the court will accept. The findings that the exception provisions were rarely specified and the evidential basis for proposed questioning was rarely scrutinised in detail (the possibility of calling witnesses to this purpose was never taken), means this is an effective strategy.
10.20 The research data has shown that it is relatively straightforward and easy to construct a case to claim that whatever questioning or evidence that the Defence want to put to the complainer has some relevance. Moreover, most Judges seem to take the view that if what the Defence seeks can be claimed to have some relevance to fair trial considerations, then those considerations outweigh those in relation to the complainer, and the evidence sought is allowed. If greater weight were placed by the court on the rights of the complainer, there is little doubt that the legislation would be more effective in terms of protecting complainers from distressing and intimidating questioning.
10.21 Legal practice has weakened the reform intent. The legal reform has not only not had the intended effect but could be said to have moved in the opposite direction. The intent of the reformers to limit sexual history and character evidence in sexual offence trials has not been realised, although arguably, it has had the effect of rendering common practice much more visible. The "chilling" effect on applications of the potential disclosure of analogous previous convictions anticipated by some practitioners, has not occurred. Although the numbers are small, we also remain sceptical that practice follows legislative intent in relation to the disclosure of any analogous previous convictions of the accused following a successful Defence application. Whereas practice may ensure the accused is protected from having potentially damaging information disclosed, the anticipated increased protections for complainers have not been forthcoming.
10.22 The outcome of various strands of legal practice has had the unfortunate and unintended consequence of undermining the intention of the legislators. In conducting sexual offence trials, lawyers are not just "interpreting" the law but are implementing it through legal practice in ways that "fit" with legal constructions and understandings of fairness, and this is in apparent tension with the legislative intent. That the 2002 Act has had an unanticipated and perverse outcome, increasing the presence of sexual history and character evidence rather than limiting it, was a common view expressed by several legal practitioners interviewed.
10.23 The overall, paradoxical result is that 7 out of 10 complainers in the most serious sexual offence trials are now virtually guaranteed to be questioned on their sexual history and sexual character. Questioning about sexual history and character in order to contest consent and challenge the credibility of the complainer have always been characteristic features of sexual offence trials; the routine submission of s.275 applications is ensuring that these features will endure. This plainly runs counter to the policy aims of the 2002 Act, expressed, for example, in the prior discussion document, Redressing the Balance, which were to prevent complainers being subjected to unnecessary and irrelevant questioning. It seems clear from this research that the legislation has not improved the position, and indeed has probably had the opposite of the anticipated, and hoped for, effect of reducing such questioning.
Informing the complainer
10.24 Another of the policy aims of the 2002 Act, to provide advance notification to the complainer, is also clearly not being met. The research found that advance notice of s.275 applications, like the advance notice of a defence of consent, is not typically translated by the Crown into explicit advanced notification to the complainer. Advocates Depute are wary of the possibility of being seen to 'coach' complainers in advance of trial, and so, whilst the Crown will consider whether it is necessary to re-precognosce a complainer to get his or her position concerning any emergent events or issues raised in a Defence s.275 application, this does not necessarily involve informing the complainer that such an application has been made, by either party, or of the detail of the lines of questioning which the Defence seek to admit. Nevertheless, it is widely believed by both Judges and Defence practitioners that complainers are indeed informed. The practice of the Crown in this area is to change following the recommendations of the COPFS Review (2006). Implementation of the recommendations will require that there is a presumption in favour of further precognition of the complainer and that in all cases the complainer will be informed of the fact that an application has been made and the outcome of the court's consideration of the application.
10.25 Complainers interviewed felt inadequately prepared for the process of giving evidence, in that they had little information about what giving evidence would entail, and were unaware that they may be questioned about sexual matters. Questioning around "bad" character evidence during cross-examination was identified as particularly distressing, and some complainers had further difficulty in understanding the relevance of specific issues which had been raised (e.g. marital status, self harming behaviour).
10.26 The level of relevant information provided to complainers about the provisions contained within the 2002 Act has been highlighted as an area of particular concern. The COPFS Review of the Investigation and Prosecution of Sexual Offences (2006) has made a number of positive recommendations in this regard. However, as yet, it is too early to evaluate the implementation of these recommendations, and the subsequent impact they may have on complainers' experiences of preparing to go to court, and giving evidence in a sexual offence trial.
Recommendations
Drawing on the data in this report, the following recommendations are made:
- The legislation would be more effective in protecting victims if greater weight was placed on the rights of the victim. This may mean that there may be, at times, a need to exclude evidence notwithstanding that it may be of some relevance to the credibility of the complainer. There should be some recognition that such an approach can be adopted while maintaining a fair trial;
- The court should consider resisting the view that any relevance to a complainer's credibility is adequate grounds for admission under "fair trial" considerations;
- The court should consider recording in more detail why it is satisfied of the merits of a s.275 application and, in particular the reasoning why the evidence or questioning sought is considered relevant;
- The making of successive s.275 applications should be strongly deterred, as this is sometimes an opportunistic use by the Defence of the procedures in order to maximise their chances of introducing sexual history and character evidence and in this sense runs counter to legislative intent;
- Given that most sexual offence trials now involve a (successful) s.275 application, then the routine provision, to all complainers in sexual offence trials, of written information about the legislative provisions and the implications for questioning on sexual history and character in the trial should be seriously considered;
- The provision of timely and sufficiently detailed information to individual complainers about the contents of any s.275 application made by either party in the case, and the court's decision on the merits of the application needs to be seriously considered;
- Whilst the provision of comprehensive information for victims spanning their information needs was recommended by the COPFS review, research needs to be undertaken to monitor the implementation of the recommendations of the COPFS Review, in particular those which refer to the provision of information to the complainer about successful s.275 applications;
- Consideration should be given to extending the provisions relating to disclosure of previous convictions to those committed within the context of domestic abuse, regardless of whether these were perpetrated on the same women as in the index offence; and
- There should be research to monitor the implementation and impact of the legislation in sexual offence trials heard under solemn procedure in the Sheriff Courts.
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