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Footnotes
1. Scotland has a 3-tier criminal court system. These are, in order of precedence, the High Court of Justiciary (the High Court), the sheriff courts and the district courts. Criminal procedure (i.e. the procedure for the investigation and prosecution of crime) is mainly regulated by the Criminal Procedure (Scotland) Act 1995 and is divided into solemn and summary procedures. Solemn procedure involves the most serious of criminal cases and may lead to a trial on indictment, either before a judge in the High Court or before a sheriff in the sheriff courts. All trials at the High Court are conducted with a jury.
2. Pressure for a change in the law intensified following the case of HMA v Anderson at the High Court in Perth in 2000. Anderson, who was acquitted, was accused of raping a 13-year-old girl and her mother and was allowed to subject his alleged victims to extensive cross-examination.
3. This legislation is the subject of a detailed evaluation commissioned by the Home Office (see Kelly et al, 2006).
4. For a discussion of the earlier history of rape reform in Scotland, see Brown et al 1993, chapter 1.
5. At common law, it is always open to an accused to put their own character in issue - normally evidence of 'good' character which he is entitled to raise as an issue (see Dickson on Evidence, n. 2, para. 15).
6. Scottish Law Commission Report No 78
7. First Scottish Standing Committee col 878
8. Or at the intermediate diet in summary proceedings.
9. Unlike the similar legislation enacted in England and Wales, and set out in Sections 41-43 of the Youth Justice and Criminal Evidence Act 1999, section 275 of the 2002 Act does not impose strict pre-determined constraints on adducing evidence of sexual character.
10. The Vulnerable Witnesses (Scotland) Act 2004 is being introduced in phases, and the new regime has applied to cases tried at the High Court since 1st April 2005 for child witnesses (under 16 years when the indictment is served) and since 1st April 2006 for adult vulnerable witnesses. The Act is designed to make it easier for children and adult vulnerable witnesses to give evidence in court and provide clarity in relation to the use of special measures, such as screens and video-links. The Act can potentially apply in trials for sexual offences where it is considered that a victim or a witness is vulnerable. In terms of the definition provided by s27(1)(b), an adult person is vulnerable where 'there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of (i) mental disorder or (ii) fear or distress in connection with giving evidence at trial'. All children are considered vulnerable in terms of the Act.
11. McKearney v HMA 2004 SCCR 251
12. Cinci v HMA 2004 JC 103
13. Since the decision of the High Court in the Lord Advocate's Reference (No 1 of 2001) rape has been defined as a man having sexual intercourse with a woman without her consent. However 'consent' is not defined, and juries are expected to apply what they consider to be the ordinary meaning of that word.
14. Included in this category are a small number of single rape charge cases which also included a charge of contravention of bail.
15. Section 6 Criminal Law (Consolidation) (Scotland) Act 1995 (indecent behaviour towards girl between 12 and 16 years).
16. Cases which are deserted pro loco et tempore ('without place and time') on the motion of the prosecutor can be re-raised at a later date.
17. Prior to the decision by the Appeal Court in Lord Advocate's Reference (No. 1 of 2001) 2002 Scots Law Times 466, it was thought that rape required that the woman's will had been overcome by force, threats of force, or drugging. It was not rape to have sexual intercourse with a woman who was asleep, or insensible through drink or drugs (unless the accused or an accomplice had plied her with drink or drugs for this purpose). Such acts amounted to the criminal offence of "clandestine injury" or indecent assault. The Reference decision arose after a student was acquitted of rape at a trial in March 2001 because there was insufficient evidence to prove he had used force to "overcome the will" of the victim. Following a media outcry, the Lord Advocate exercised his statutory power to refer the point of law involved in the case to the Appeal Court for an authoritative ruling. The court ruled that previous court decisions which laid down a force requirement should be overruled. As a result of this decision, the crime of "clandestine injury" was effectively abolished - such conduct is now necessarily rape.
18. The COPFS Review counted the number of charges rather than cases with a rape charge so, for example, an indictment with 2 rape charges was counted as 2 rapes ( COPFS, 2006).
19. In the baseline study, researchers were reliant on the Defence identifying consent to sex on the part of the complainer as a reason for wishing to introduce otherwise prohibited evidence in the application made verbally to the court, usually just prior to the cross-examination of the complainer, or an indication that a defence of consent had been led in the trial recorded by the court clerk in the Book of Adjournal. In contrast, in the current study, whether or not a defence of consent had been lodged was ascertained from the presence of the written notification contained in the case Sitting Papers.
20. Anderson v HM Advocate 1996 J.C.29; 1996 S.L.T.155; 1996 S.C.C.R.487
21. The accused in Anderson was charged with assault. Following his conviction, he complained at appeal that his solicitor advocate had ignored his instructions to challenge the character of one of the complainers, who he claimed was a violent person, by putting to him in evidence his previous convictions. The court rejected the appeal, and highlighted that not only was the appellant's contention regarding the complainer's character unsupported by the evidence, any such attack was irrelevant to his defence of alibi. More fundamentally, however, the decision as to whether an attack should be made upon the character of a witness related to the manner in which the defence was conducted was accordingly for the solicitor advocate to take, not the accused. The Appeal Court drew a distinction between an instructed defence (on which the Defence required to accept direction from the accused) and decisions made as to how the defence should be presented (on which the Defence is entitled to refuse such direction and proceed according to his or her own discretion). Only when the instructed defence was not presented at trial would the court be prepared to intervene (Anderson v HMA 1996 JC 29)
22. In Garrow v HMA 2000 SCCR 772, the court held that the failure of the Defence to obtain a medical opinion on the appellant's amended defence to a charge of rape, resulted in that defence not being properly presented to the jury. The court was prepared to look beyond whether the defence was presented at all, and consider the manner in which it was presented. In E v HMA 2002 SCCR 341; 2002 SLT 715, the appellant was convicted of raping his 2 daughters and appealed on the ground that his Counsel had not adequately prepared or presented his defence. In particular, it was alleged that the appellant had provided his solicitor with material bearing upon both the medical evidence which it was anticipated the Crown would lead, as well as the possible manipulation of the child witnesses into giving false accounts of sexual abuse. Following conviction the appellant obtained expert reports which reflected the material he had earlier produced, which supported certain aspects of his defence. He argued that to substantiate his defence, the children's mother (his former wife) should have been cross-examined as to her character. He claimed she had previous convictions for dishonesty, had been vindictive and violent towards the complainers in the past and had unduly influenced them. E's Counsel, in his response, acknowledged that he had not made an "all out attack" on the mother's character and explained that this had been a tactical decision, to avoid antagonising the jury, and exposing the appellant, who also had previous convictions, to a similar attack. The appeal was upheld. The Lord Justice Clerk stated that the distinction made in Anderson between a failure to present an instructed defence and the judgement as to the manner in which it is presented should not be applied "too rigidly". The underlying principle was whether the presentation of the appellant's defence was such that he did not receive a fair trial. A second appeal judge was of the view that a "substantial line of defence", which supported the proposition that the complainers' evidence was incredible and unreliable, was not presented to the jury. Given the nature of the defence, he considered that there was no option but to also attack the complainers' credibility on the basis that their evidence was deliberately false. Such an approach would also have necessitated an attack upon the mother's credibility, even though this would have exposed the appellant himself to such an attack.
23. Hemphill v HM Advocate 2001 S.C.C.R.361; E v HM Advocate 2002 S.C.C.R.341 and Winter v HM Advocate 2002 S.C.C.R.720
24. The 2002 Act stipulated that this should be not less than 14 days before trial, but this was subsequently amended by the Criminal Procedure (Amendment) (Scotland) Act 2004 to 7 days before the preliminary hearing in the High Court.
25. S.274(1) (a), (b), (c) (i) and (ii), (d) Restrictions on evidence relating to sexual offences
26. S.275(1) (a) (i) and (ii), (b), (c) Exceptions to restrictions under section s.274
27. Cases 007, 076, 099, 121, 128, 172, 231, 233, 234, 239.
28. For example, case 138 concerned the fact that the complainer and accused had been involved in a long term relationship and had a child together; case 056 sought to elicit that the complainer was not a virgin prior to the alleged sexual incident.
29. The accused in this case had previous analogous convictions and there is some discussion in the preliminary hearing suggesting that the Crown section 275 application allowed the Defence to avoid incurring 'certain consequences and penalties' in this regard. This case is discussed in more detail in Chapter Six.
30. Section 275 (1)(a) of the 2002 Act stipulates that the court may admit questioning or evidence contained within a s.275 application if it is satisfied that: "the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating (i.) the complainer's character; or (ii.) any condition or predisposition to which the complainer is or has been subject."
31. s.274(1) (c) prohibits evidence which shows or tends to show that the complainer has, at any time, (other than shortly before, at the same time as or as shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, as might found the inference that the complainer (i) is likely to have consented to those acts; or (ii) is not a credible or reliable witness.
32. Section 288C applies to the following sexual offences: rape; sodomy; abduction of a woman or girl with intent to rape; assault with intent to rape; indecent assault; indecent behaviour (including any lewd, indecent or libidinous practice or behaviour); an offence under section 106(1)(a) or 107 of the Mental Health (Scotland) Act 1984 (c.36) (unlawful sexual intercourse with mentally handicapped female or with patient); an offence under ss. 1,2,3,5,67(2) and (3), 8, 10 and 13(5) (b) or (c) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)
33. In the initial sweep of data collection, the Books of Adjournal ( BOA) were used as the primary data source. However, the individual case Sitting Papers were the only reliable data source available to us about previous convictions since the BOA only provided information in some cases. Information about previous convictions of the accused was found in the papers titled the 'History of the Accused', which stated whether the accused had previous convictions, allowing this information to be positively identified, rather than relying on finding an actual schedule of previous convictions in the BOA. Some papers had been removed from the BOA (for example, because they were required for appeal proceedings). Further information about the existence and nature of any previous convictions can also be found in Social Enquiry Reports pertaining to the accused. The level of information available in Social Enquiry Reports, however, can vary.
34. In all of the mapped cases, there were just 11 Crown only 275 application cases.
35. Under the 1995 Act, s.275 (1) (a) afforded the Defence the opportunity to pick up on evidence or questioning led by the Crown
36. There were 21 applications cases in that year but the tapes from one case were unable to be located.
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