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Executive Summary
This Report presents findings from a study of the operation of the Sexual Offences (Criminal Procedure) (Scotland) Act 2002 ("the 2002 Act") which was introduced in response to the perceived failure of sections 274 and 275 (hereafter s.274 and s.275) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act").
Sexual Offences (Criminal Procedure) (Scotland) Act 2002
The 2002 Act introduced new procedures restricting the use of evidence or questioning concerning the sexual history and character of the complainer in sexual offence trials. The Act also introduced a requirement that advance notification must be given to the Prosecution if the defence is one of consent.
A key difference between the 1995 Act and the 2002 Act is the scope of the otherwise prohibited evidence; whereas the earlier legislation focused on sexual history and sexual character evidence, the 2002 Act extends to more general character evidence.
In order to introduce sexual history or character evidence, it is necessary that a written application is submitted to the court, in advance of trial. This requirement applies to both the Prosecution and the Defence. That the requirement applies equally to the Prosecution makes this legislation unusual as, in other jurisdictions, "rape shield" provisions apply only to evidence or questioning by the Defence. A written application to introduce otherwise prohibited evidence or questioning must be submitted, ordinarily, not less than 7 days before the preliminary hearing in the High Court, to allow consideration at first or preliminary diet in solemn proceedings.
The application must specify: the evidence sought to be admitted or elicited; the nature of any questioning proposed; the issues at trial to which the evidence is considered to be relevant; the reasons why the evidence is considered relevant to those issues; and the inferences that the court should draw from the evidence.
The court can only admit such evidence where it is satisfied that it is relevant to whether the accused is guilty of the offence, and the probative value of the evidence is significant and is likely to outweigh any risk of prejudice to the proper administration of justice.
Where a Defence application to introduce otherwise restricted evidence is allowed by the court, the Crown is required to place before the judge any previous analogous convictions that the accused may have. The provisions for the disclosure of previous convictions are unique to Scotland, and are not found in rape shield legislation in other jurisdictions.
The Research
The research was commissioned by the Scottish Executive and took place from September 2005 - December 2006. The research utilised a multi-method approach, and involved the mapping of all sexual offence cases indicted to the High Court over a 12 month period (1st June 2004 to 31st May 2005) using: court records; detailed analysis of a sample of 30 trials for sexual offences, using the taped proceedings of preliminary hearings and trials, and corresponding case Sitting Papers; attendance at court to observe 10 sexual offence trials; interviews with Judges, Advocates Depute, and Defence Counsel; and interviews with complainers in trials which had taken place since the introduction of the 2002 Act. Findings were compared with research findings from an earlier baseline study which examined the use of sexual history and sexual character evidence under the 1995 Act.
The Findings
Sexual offence cases indicted to the High Court
Two hundred and thirty one sexual offence cases were identified in the period 1st June 2004 to 31st May 2005. Almost half (45%) of these contained a s.275 application to introduce sexual history or character evidence. Just over half (53%) of all cases called proceeded to trial.
The research identified all cases for all types of sexual offences covered by the 2002 Act that were indicted to the High Court over a 12 month period. The research therefore extends beyond rape cases, and included cases for attempted rape, assault with intent to rape, indecent behaviour, the age-related statutory offences, and sodomy. That said, 80 percent of all High Court sexual offence trials involved at least one charge of rape. Over half (55%) of the sexual offence trials had an advance intimation of a defence of consent.
The accused was acquitted of all sexual charges in just over half of sexual offence trials (51%), found guilty of all sexual charges in just under a quarter of trials (23%), and guilty to some charges in just over a quarter of trials (26%).
Cases with applications to introduce sexual history and/or character evidence
There has been a substantial increase in the numbers of trials with s.275 applications under the 2002 Act. Almost three quarters of High Court sexual offence trials (72%) now include an application, compared to just over one-fifth of trials (21%) in the base-line study. This represents an increase of almost 3 and half times that found in the base-line study.
The proportion of cases involving multiple applications has more than doubled. In the baseline study, just 8 out of the 66 trials with s.275 applications (or just over one in 10) involved more than one application, this has risen to 26 out of the 88 trials (or just under 3 in 10).
Whilst an increase in the use of sexual history and character evidence is the opposite of the intention of the legislation, comparison with the baseline study indicates that the increase is at least partially the consequence of the inclusion of questioning and evidence relating to matters of character in written s.275 applications which, prior to the 2002 Act, did not require to be the subject of an application.
Over three quarters of rape trials (76%) involve s.275 applications, as do just over half of trials (52%) for sexual offences other than rape. The type of sexual charge involved is a factor affecting Defence decisions to challenge the credibility of a complainer through the use of sexual history or character evidence.
Application decisions
A total of 118 s.275 applications were made in 88 sexual offence trials. As in the base-line study, almost all applications were successful; just 8 (7%) were disallowed, although partial refusals, amendments and restrictions on questioning mean that a significant proportion of applications are modified by the court. In all but a few exceptions, all evidence allowed in the application was subsequently introduced in the trial, usually during cross-examination of the complainer. The evidence or questioning tended to be in more detail than outlined in the written application.
It is considered relatively easy to construct a case demonstrating that sexual history or sexual character evidence has some relevance to issues in the trial.
Who is making applications?
The majority of applications were made by the Defence, although the Crown were responsible for one quarter of applications made (22 out of 88). Just under one fifth of trials (17 out of 88) involved (separate) applications by both Crown and Defence. Applications by the Crown only were rarer, occurring in just 5 trials.
Nature of questioning and evidence sought
Written applications seek to introduce evidence or questioning about a wide range of sexual history and general character issues, over 40% of which concerned matters that were likely to have been asked without an application being regarded as necessary prior to the 2002 Act.
Reasons given for proposed questioning on sexual history and character were relevance to consent; credibility; and the complainer's character, in particular, dishonesty or motive for false allegation. Evidence or questioning concerning the character of the complainer featured in approximately one quarter of cases (24%). A common type of such proposed questioning concerned the complainer's use of alcohol or drugs. This type of questioning also occurred without any application.
Crown applications were typically made to introduce sexual history evidence that is required to enable a jury to make sense of subsequent evidence or to provide context for the alleged events.
Complainers are not routinely informed by the Crown that an application to introduce sexual history of character evidence has been submitted or allowed, however this is to be changed as a result of the recommendations made by the recent COPFS Review of the Investigation and Prosecution of Sexual Offences (2006).
Deciding whether or not to admit the evidence or questioning sought
The requirement to make a written s.275 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.
Communication between Defence and Crown at case preparation enhances the likelihood of agreement concerning the contents of applications. The majority of Defence applications are not challenged. In court Advocates Depute tend to take a neutral view on Defence applications, and interviews with practitioners indicate that this neutrality often reflects prior consultation between Defence and Crown. Challenges by the Crown are most often in relation to general character evidence and in particular to allegations of dishonesty on the part of the complainer.
Whilst the court decides each application on its merits, and is more likely to refuse applications that are seen to be poorly specified or of weak relevance, the position taken by the Crown is a factor affecting the likelihood of an application being allowed by the court. Judges are more likely to restrict or disallow Defence applications where the Advocate Depute registers opposition.
If duly enforced, the procedures introduced by the 2002 Act can remove some of the excesses of questioning on sexual and character matters that characterised sexual offence trials pre-2002 but, as the opportunity for detailed discussion of relevance and prejudice is not taken up, the possibility of tighter enforcement is not acknowledged.
Requiring applications in writing has resulted in greater transparency concerning the reasoning behind applications but it does not typically result in discussion of the relevance of evidence by the Court. Most preliminary hearings are characterised by a lack of discussion of relevance. Only a few cases where the relevance of questioning is challenged by the Crown provoke lively debate. The court disallows questioning or evidence which it considers to be too loosely phrased, too wide-ranging, lacking in specificity, or simply too speculative but applications which are loosely phrased and wide ranging or may be speculative are not always challenged.
Although much of the debate preceding the legislation regarded a complainer's past sexual history as likely to be largely irrelevant in a sexual offence trial, in practice sexual history evidence is generally regarded as relevant to establishing the guilt of the accused, particularly when it concerns a past history between the complainer and accused. Application decisions and the legal practitioner interviews indicate that sexual history evidence is seen as relevant by the Crown, the Defence and the judiciary.
The court tends 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 seem to outweigh the rights of the complainer. This approach sets aside the need to weigh up the probative value of evidence against the invasion of the privacy or dignity of the complainer, or the possible prejudicial effects on the jury concerning their views of the complainer, because any relevance of evidence to the issues in the trial is sufficient for its admission.
Most applications are decided by the court at one preliminary hearing, although several are continued to subsequent hearings before a court's final decision. The Judge and Advocate Depute at the preliminary hearing are usually different to those at the trial. Continuations occur due to lack of time or unavailability of relevant information, or where the application is refused or restricted, and the applicant amends or re-submits the application.
Previous analogous convictions of the accused
S.275A of the 2002 Act allows for the disclosure of the accused's relevant previous convictions following a successful Defence application to introduce questioning or evidence about the complainer's sexual history or character. The presence of analogous previous convictions does not appear to deter the accused from pleading not guilty, and the case proceeding to trial.
All 162 rape cases were examined for the presence of previous convictions. In 3 cases where the accused had an analogous previous conviction, a successful application was made by the Defence. The relevant previous convictions of the accused were not placed before the court as the legislation intended.
In 4 of the 7 rape cases in which an application was made by the Crown only, and not by the Defence, the accused had previous convictions. Although caution should be exercised in drawing conclusions from such a small number of cases, there is nevertheless some evidence from transcripts of preliminary hearings where the consequences of a Defence application were discussed, where it was acknowledged that submission of an application by the Crown allows the introduction of sexual history evidence into the trial, without the need for a Defence application, which could result in the accused's relevant previous convictions being disclosed to the court. It should be noted, however, that this was not a view fully endorsed by the legal practitioners interviewed.
In 8 rape cases, the accused had a previous conviction for assault, assault to injury, or assault to severe injury in the context of domestic abuse. Under the 2002 Act, these convictions are not defined as relevant convictions since they do not involve a substantial sexual element. Yet, prior convictions relating to domestic abuse on the part of the accused may well be considered relevant in a sexual offence case in that they demonstrate a previous history of violence against a woman. Even more so where the history of violence evidenced through the previous convictions is against the same woman as in the current trial (as it was in at least one of the 8 cases identified here) where, arguably, this is as much a part of the facts of the case as the previous relationship itself.
The "chilling" effect on applications of the potential disclosure of analogous previous convictions, which some practitioners anticipated, has not occurred. Although the numbers are small, we 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.
Straying beyond boundaries set by the court
Just less than half (14 out of 32) of the observed trials involved some evidence or questioning being led which had not been explicitly agreed in the application. Objections by the other party and/or interventions by the court occurred infrequently.
Judges tended to allow evidence once it was before the jury, even if the nature of the evidence was such that it required an application. The 2002 legislation has not reduced the amount of sexual history and character evidence that is introduced through straying beyond the permissions given following an application, indeed it has led to an increase in such evidence being introduced in sexual offence trials.
Although, again, numbers are small and should be viewed with caution, the Crown was more likely than the Defence to introduce sexual history evidence without application. However, character evidence, and particularly questioning concerning alcohol consumption, continued to be introduced by the Defence without application.
Complainers' views
A number of common themes emerged from interviews undertaken with 4 complainers who had given evidence in sexual offence trials since the introduction of the 2002 legislation. Due to the small numbers, the findings expressed here are illustrative rather than representative.
Cross-examination on character was reported to be particularly distressing, and some complainers had difficultly in understanding the relevance of specific issues which had been raised (e.g. marital status, self harming behaviour).
The level of relevant information provided to complainers about the general process of giving evidence in court, and more specifically about the 2002 legislation, particularly whether or not an application had been successfully made to pursue questioning about sexual history and/or character, were highlighted as areas of particular concern. All complainers felt inadequately prepared for the process of giving evidence, and expressed the view that it would be helpful to meet the Advocate Depute prior to giving their evidence. 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 their implementation, and the impact they may have on complainers' experiences
Impact of the 2002 Act
The amount of sexual history and character evidence introduced in the court room has increased markedly under the 2002 Act. The proportion of trials with applications has increased substantially; applications to pursue questioning on sexual history and character is now sought by both the Crown and the Defence; the extent of questioning has increased; and, the numbers of trials containing multiple applications has doubled.
The clear increase in applications has to be set against the fact that approximately 40 percent of the evidence or questioning sought would not have required an application under the 1995 Act. Questioning concerning the complainer's character figured in approximately one quarter of applications (24%), whereas it was not necessary to submit an application to introduce such evidence prior to the 2002 Act. The admissibility, or otherwise, of such evidence was determined under law. One reading of the increase in applications therefore might be that it simply reflects a channelling of questioning that was previously asked without an application, into an application. This interpretation, in turn, suggests a general compliance, by those seeking to introduce such evidence, with the requirements of the 2002 Act. It is, to some extent, an indication that the rules were being followed.
On the other hand, it is clear that the legislation has not had the effect of decreasing the kind of evidence that was previously prohibited, that is, questioning about the complainer's sexual history and sexual character. Moreover, character evidence is introduced in the absence of an application and again it seems clear that this type of evidence has not been reduced by the 2002 Act.
Questioning and evidence sought in applications is now more detailed and extensive than that sought under the 1995 Act. There are several reasons for the rise in level of detail and scale of information sought. Partly it is due to procedural changes, in particular, the requirement of a written application, which specifically seeks information on the nature and type of the proposed evidence or questioning. The increased level of detail is also due to the scope for refinement and/or expansion of the content of applications that is afforded by advance notification, and the ensuing pre-trial discussions that can span more than one preliminary hearing. A related contributory factor is the "belt and braces" or "scattergun" approach adopted by the Defence where they seek to include as much detail as possible in applications. The propensity of the Defence to do this has been exacerbated by a range of other factors, beyond the legislation, which have altered the general legal landscape within which applications are made.
This increased detail has not resulted in more Defence applications being challenged by the Crown or refused by the Judge. Questioning about sexual history and character allowed under application typically continued to stray beyond the boundaries of what had been formally permitted by the court.
This leads the research to conclude that the 2002 Act, launched with ministerial hopes of curbing sexual history and character evidence and support from campaigning organisations against violence against women, has had the largely unanticipated and unintended consequences of the introduction of more sexual history and character evidence than occurred under the 1995 legislation.
Whilst the 2002 legislation has not reduced the extent to which complainers are subject to questioning about their sexual history and character, the procedures have however rendered this much more visible. The greater visibility of the use of this type of evidence enhances the possibility of informed debate among practitioners, yet there has been little apparent shift in the balance in favour of complainers when weighing up the relevance of such evidence against the dignity and privacy of the complainer.
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