Impact of Aspects of the Law of Evidence in Sexual Offence Trials: An Evaluation Study

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Chapter One: "Rape Shield" Legislation in Scotland

Introduction

1.1 This Report presents findings from an evaluation of legislation intended to restrict the admission of previous sexual history and character evidence of the complainer in sexual offence trials in Scotland.

1.2 The use of sexual history and sexual character evidence is highly controversial, and questions concerning the relevance, admissibility and probative value of such evidence have excited critical attention from the legal profession, academics, and politicians over the past 30 years.

1.3 Since the early 1970s many jurisdictions around the world, with broadly similar legislative intent, have enacted "rape shield" legislation designed to curb the use of such evidence in sexual offence trials. All jurisdictions have encountered similar difficulties in the effective implementation of these provisions, and consequently such legislative attempts are seen as limited in effectiveness (see Birch, 2002; Brown et al, 1993; Temkin, 1993, 2002; Hornick, 1996; McColgan, 1996; Kelly, Temkin and Griffiths, 2006).

1.4 Scotland first enacted "rape shield" legislation in 1986. The Criminal Procedure (Scotland) Act 1975 sections 141A and 141B and 346A and 346B (as inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 section 36) placed restrictions on the use of sexual history and sexual character evidence of complainers in sexual offence trials. The restrictions were later extended to a slightly wider range of sexual offences by s.274 and s.275 of the Criminal Procedure (Scotland) Act 1995 (hereafter "the 1995 Act").

1.5 The use of sexual history and sexual character evidence has been the subject of criticism since the first statutory provisions restricting the admissibility of such evidence were introduced. Critics of the earlier Scottish legislation argued that the policy aims behind the provisions of protecting complainers from inappropriate character attacks were not being achieved and that, despite the statutory restrictions, irrelevant sexual character evidence, which was of limited probative value, continued to be admitted in sexual offence trials.

1.6 Research carried out shortly after the introduction of the first "rape shield" legislation (Brown et al, 1992; 1993) and much more recently (Burman et al, 2005) concluded that the legislation was largely ineffective in terms of achieving its stated aims, in that despite the statutory provisions, sexual history and sexual character evidence of the type that the legislation aimed to limit was still being introduced in Scottish courts.

1.7 The Sexual Offences (Procedure and Evidence) (Scotland) Act, 2002 (hereafter "the 2002 Act") came into effect in Scotland in November 2002, replacing the earlier "rape shield" legislation, which had been in operation for the previous 16 years. The 2002 Act introduced entirely new evidential and procedural provisions to limit the scope of questioning relating to a complainer's character and sexual history in sexual offence trials. Underpinning the reform is a chief concern with the relevance and admissibility of sexual history and character evidence. A key aim is to ensure that the questioning or evidence introduced is relevant to the issues of fact before the court, rather than calculated to demean or humiliate the complainer by raising tangential and otherwise irrelevant issues (Scottish Executive, 2001b).

The Scope of the Report

1.8 The introduction of the 2002 Act was an attempt to address the perceived deficiencies of the earlier legislation, by ensuring an assessment of the relevance and admissibility of sexual history and character evidence by the court. This research study endeavours to gauge the effectiveness of this legislation in achieving those aims. Although the 2002 Act covers sexual offence cases heard at both High and Sheriff Courts in Scotland, this research study is concerned only with the operation of the 2002 Act at High Court level. 1

1.9 The rest of this chapter describes the recent legislative background leading up to the introduction of the 2002 Act, and the perceived inadequacies of the earlier legislation that the 2002 Act was designed to address. It also describes the structure and terms of the relevant provisions of the 2002 Act.

1.10 The chapter also describes some of the recent developments and reforms that have taken place in the High Court of Justiciary, providing a wider context against which the operation of the 2002 Act can be examined.

1.11 Chapter Two sets out the research aims and objectives specified by the Scottish Executive for this study, and describes the multi-method approach that was designed to address the research questions.

1.12 Chapter Three presents the findings of a case mapping exercise conducted in the High Court which aimed to estimate the proportion of sexual offence cases in which applications were made under the 2002 Act to introduce otherwise prohibited evidence (s.275 applications), and the proportion which were allowed by the courts, and to provide some assessment of impact.

1.13 Chapter Four sets out the findings of an in-depth analysis of a sample of sexual offence trials in order to establish more detail about the grounds and reasons given for s.275 applications, and the contexts in which applications are made.

1.14 Chapter Five draws on data from the in-depth analysis of trials to examine the point in the process when applications are decided and examines decision-making with regard to s.275 applications. This chapter also explores views held by the court in relation to the relevance and admissibility of sexual history and character evidence.

1.15 Chapter Six examines the extent to which, and the circumstances under which, previous convictions of the accused are disclosed.

1.16 Chapter Seven focuses on the use of sexual history and character evidence in sexual offence trials in which s.275 applications have been made, and examines whether and how the parameters of applications are adhered to in the course of examination-in-chief and cross-examination of the complainer and other witnesses.

1.17 Chapter Eight draws on data from those trials in which s.275 applications were not made, and considers the extent to which sexual history and character evidence is being used in the absence of an s.275 application.

1.18 Chapter Nine reports on a small number of interviews undertaken with women who have given evidence as complainers in sexual offence trials heard since the introduction of the 2002 Act. Finally, Chapter Ten sets out conclusions and recommendations drawn from this study.

The Legislative Background

1.19 In November 2000, the Scottish Executive issued a pre-legislative consultation document entitled Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials seeking views on proposals to change the law of evidence in sexual offence trials (Scottish Executive, 2000).

1.20 Redressing the Balance acknowledged that sexual offences, by their very nature, have particular elements which distinguish them from other crimes, giving rise to difficulties of proof. These include: the fact that there is frequently a pre-existing relationship between the complainer and the accused which has the potential to divert attention from issues of fact; that there are rarely ear or eye witnesses to a sexual assault; that delay in reporting may lead to a loss of evidence; that even where physical evidence is present, this may be re-cast in the trial as ambiguous or given an alternative explanation (2000:5). The pivotal roles played by the consent of the complainer in such trials were also highlighted. In common with international research evidence (e.g. Temkin, 2002; Kelly et al, 2006), Redressing the Balance noted that the fact that consent of the complainer is under such scrutiny from the outset leads to a diversion of attention from what the accused said or did, to what the complainer did or did not say or do:

"In many cases, and particularly those where there is either a previous relationship or some kind of previous contact between complainer and accused, he will do so by trying to show how the complainer's behaviour led him to believe that she consented, expressly or by implication, or at least that she was not unwilling - and it is in doing this that he is most likely to try to take advantage of any prejudices about sexual behaviour which the judge or jury may hold, however unconsciously" (2000:5)

1.21 Redressing the Balance also explored the issue of rape myths and stereotypes in its discussion of the law on sexual history evidence, noting the prevalence of beliefs that are often deployed in legal reasoning (Scottish Executive, 2000), and concluding that not only do these stereotypes have no basis on fact, they are also "illogical and at odds with any system of morality which places a value on the individual's right to self-determination" (Scottish Executive, 2000: 6).

1.22 Redressing the Balance sought views on the perceived need for greater protection for victims of sexual offences, particularly rape. Specifically, it put forward proposals to change the law of evidence in sexual offence trials in order to:

a) Prevent the accused in such cases from personally cross-examining the complainer, and

b) To strengthen the restrictions on the use of evidence about the sexual history and sexual character of the complainer.

1.23 The proposals, and in particular the first one, sparked some controversy. The consultation that followed received nearly 70 responses from a wide range of groups including women's support groups, victim support organisations, members of the judiciary, organisations representing lawyers, local authorities and academics. The consultation revealed that, with a few exceptions, responses from organisations representing the legal profession and the judiciary thought the existing system largely satisfactory, and saw no need for reform in this area. This was in stark contrast to the views of other groups, in particular Rape Crisis Centres and other support groups and organisations, as well as legal academics.

Limiting the accused's right to conduct a defence

1.24 The first proposal put forward in Redressing the Balance addressed a concern by the Scottish Executive that there was a trend developing in Scotland, similar to that in England, of an accused person dispensing with their legal representation and seeking to conduct the cross-examination of the complainer in a manner that was particularly intimidating and upsetting. The proposal to place limits on an accused's right to conduct a defence aimed to prevent complainers from being humiliated, embarrassed, intimidated or otherwise inhibited in giving evidence as a result of having to submit to questioning by the accused personally about highly intimate or degrading matters. Women's groups and academics have long pointed to the ordeal of the witness box as adding a further level of "secondary victimisation" to the complainer's experience (see e.g. Chambers & Millar, 1986; Adler, 1987, Brown et al, 1993; Lees, 2002; Gregory & Lees, 1999; Temkin, 2000, 2002) and have also identified this as being a strong factor in women's reluctance to report sexual assault.

1.25 In Redressing the Balance, it was suggested that the court may be reluctant to intervene too severely in a case where an accused person is conducting his own defence and, 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 oppressive, and give rise potentially to grounds for appeal (Scottish Executive, 2000).

1.26 The proposal to place limitations on the right of the accused to conduct his own defence addressed an issue that received much media attention in Britain in the late 1990s, despite being a relatively uncommon event in Scotland. The number of sexual offence cases where the accused conducted his own cross-examination taking place in this country has been small but very high profile 2. Indeed, the Policy Memorandum which accompanied the subsequent Bill, which was published in June 2001, pointed out that such cases invariably receive wide media attention, and this may create apprehension amongst victims of sexual offences, thereby acting as a further deterrent to reporting sexual crimes.

Strengthening restrictions on sexual history and sexual character evidence

1.27 The second proposal presented in Redressing the Balance, relating to the effectiveness of the statutory restrictions on sexual character evidence, has been a long-standing source of public complaint. Throughout the 1990s, there was growing disquiet with the criminal justice response to rape. Against a background of criticism of the conviction rate in rape compared to the number of complaints made to the police, the treatment of complainers in sexual offence trials became an increasing cause for concern, north and south of the border.

1.28 The existing "rape shield" legislation in both mainland British jurisdictions was seen as ineffective, and the intentions of the legislature were considered to be undermined in legal practice (Brown et al, 1992, 1993; Burman et al, 2005; Kelly et al, 2006). In an attempt to address the well-documented failings of section 2 of the Sexual Offence Amendment Act 1976 (see Adler, 1987; McColgan, 1996), which was the first concerted attempt to regulate sexual history evidence in England and Wales, sections 41-43 of the Youth Justice and Criminal Evidence Act 1999 was introduced. This legislation placed restrictions on sexual history evidence and sought to offer a more structured approach to decision-making concerning the admission of such evidence. 3

1.29 In Scotland, critical attention focused on the perceived inadequacy of the existing legislation, in particular in relation to the issues of the relevance and admissibility of sexual history and sexual character evidence. Underpinning the proposals on restrictions on such evidence outlined in Redressing the Balance are complex and long standing questions about the relevance and admissibility of such evidence. These questions were first debated in Scotland in the 1970s, and led to the introduction of the first Scottish "rape shield" legislation in 1986. 4

"Rape Shield" Legislation in Scotland

1.30 The first Scottish "rape shield" legislation, in 1986, took the form of a general prohibition on the Defence introducing any sexual history or sexual character evidence concerning a complainer that was not part of the subject matter of the charge. The restrictions specified that the court shall not admit questioning or evidence designed to show that the complainer:

(a) is not of good character in relation to sexual matters;

(b) is a prostitute or an associate of prostitutes; or,

(c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.

1.31 The Crown was exempt from these restrictions. The legislation also specified a set of exceptions to the restrictions to which the Defence could appeal in making an application to the court to have the prohibition lifted. These were:

(a) That the questioning or evidence is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or on behalf of the accused;

(b) That the questioning or evidence:

(i) is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming part of the subject matter of the charge; or,

(ii) is relevant to the defence of incrimination; or,

(c) That it would be contrary to the interests of justice to exclude the questioning or evidence.

1.32 The legislation was distinctive from other jurisdictions as it included all heterosexual and homosexual offences (except clandestine injury and incest) and it excluded evidence concerning the complainer's previous sexual behaviour with the accused, as well as third parties.

1.33 The stated aim of this first "rape shield" legislation was to achieve overall, a balance between minimising undue questioning of complainers about their sexual life, while continuing to admit all the evidence necessary for justice to be done to the accused. One of the grounds for exception permits such evidence to be adduced if it would be "contrary to the interests of justice" to exclude the evidence the Defence sought permission to elicit. Indeed, an early explanation for the shortcomings of the earlier legislation was the wide discretion given to the court by the "interests of justice" exception, which was regarded as a "loop-hole" through which the aims of the legislators could be subverted (Field, 1988).

1.34 In order to introduce otherwise prohibited evidence, the Defence made a verbal application to the court during the course of the trial, at which point the judge would ask the jury to retire before hearing the legal argument and seeking the view of the Crown. Research into the operation of the earlier legislation revealed that the subsequent discussion concerning the application by the Defence was usually very brief, and rarely addressed the relevance or probative value of the evidence (Brown et al, 1992, 1993; Burman et al, 2005). There was no statutory requirement in the legislation that any such relevance be shown by the Defence in making an application to introduce the evidence or questioning and, as such, the legislation gave little leeway for the probative value of the sexual evidence to be considered and weighed against its potentially prejudicial effects. While the court (at least in jury trials) was required to give reasons for its decision to be entered in the record of proceedings, there was no guidance as to what these should contain.

1.35 Research conducted by Brown et al (1992; 1993) found that the provisions were not being properly observed, and identified 3 specific problems:

  1. Despite the existence of the rules restricting sexual history and sexual character evidence, the rules were not being followed, and evidence of the type that the legislation aimed to restrict was still being introduced;
  2. Even if the rules were followed, and applications to introduce evidence or questioning were made, the general aim of protecting complainers from irrelevant questioning was not achieved, because subsequent questioning overstepped the limits agreed in the application, or strayed into areas that were not outlined in the application or, following court's refusal of an application, the Defence subsequently introduced the evidence or questioning; and,
  3. Despite the rules, more subtle character attacks on complainers were made through the use of innuendo and suggestion.

1.36 The research found that questions of weak relevance to key matters in the trial, yet with much potential for connotations of "bad" sexual character, were introduced. Lines of questioning which were justified as tests of the credibility of the complainer often became attacks suggesting a person of "bad character" or sexual character and sometimes also explicitly suggesting a tendency to consent to sexual acts (Brown et al, 1992; 1993). 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.

Character evidence

1.37 Redressing the Balance also drew attention to the unacceptability of the use by the Defence of subtle character attacks "intended to create an atmosphere of bad character and "easy virtue" around the complainer with (presumably) the intention of making her appear generally less credible, but without producing evidence that she has ever behaved dishonestly " which the law as it was drafted did nothing to prevent (2000: para 104).

1.38 By way of background, "character" is an accepted legal concept in Scots law, although it is recognised as carrying tendencies for distorting judgement. As far as the law of evidence is concerned, a person's character includes known disposition from previous actions and general reputation in society. "Character" means both actual disposition and general repute and, as such implies certain propensities to act in certain ways. A "character for dishonesty" for example, may be indicated by evidence that someone has committed a crime of dishonesty, such as theft. 1.39 Under the existing rules of evidence, character evidence is classed as a collateral issue in most cases, meaning that it is not directly relevant or material and, as a general rule, it is inadmissible, disallowed either as prejudicial, or irrelevant. The character of a witness may be relevant in assessing credibility, but it is always subject to the broader rule that it is normally irrelevant and inadmissible. 5 The trial judge has a wide discretion to refuse to allow questioning on the accused's character in order to ensure a fair trial and avoid prejudice to the accused, bearing in mind that the justification of such questioning is that it has a bearing on the accused's credibility, but that evidence of his bad character is not relevant to his guilt of the offence charged. Prosecutors, too, are expected to exercise a wise discretion as to whether it is really necessary to ask for leave to cross-examine on character.

1.40 The potential use of "bad" character evidence to challenge the complainer's credibility in sexual offence trials had been recognised in past Scottish reform developments. In their deliberations which preceded the introduction of the first Scottish "rape shield" legislation, the Scottish Law Commission (1983: para 5.3) discussed the use of "bad" character evidence, concluding that it "opens the door to much that is irrelevant" and that to admit such evidence is "inconsistent with contemporary sexual attitudes." The Scottish Law Commission also acknowledged that evidence of "bad character" can divert the jury from the proper issues in a case, although they did not fully address the issue of the possibly prejudicial nature of such evidence. 6

1.41 In the debates preceding the first "rape shield" legislation, the potential for blurring of general "bad" character and "sexual" character was also recognised, as was the problem of "character innuendo" - that is, the relative ease with which sexual character could be built up, through the course of the trial, over several witnesses' evidence, without any direct reference to sex at all. 7 But the commitment to do something about the problem of prejudicing a jury through evidence with a strong potential to mislead failed to find a legislative solution in the first Scottish "shield" legislation.

1.42 The specificity of being "not of good character in relation to sexual matters" was not part of the original Bill drafted by the Scottish Law Commission, but was added during the passage of the legislation through Parliament (see Brown et al, 1993:34-39). The focus on lack of good character in sexual matters rather left the door open to innuendo which was not sexual but which could suggest someone was of "ill repute." The result was that while questioning specifically in relation to "sexual" character was excluded under the 1995 Act, questioning could still slip through which, although not specifically related to a complainer's sexual morals, could suggest "looseness of character" in general.

1.43 Redressing the Balance proposed that evidence of complainer's "bad character" should only be admitted where: it is relevant to the issue of whether the complainer is worthy of belief; and it is of specific instances of behaviour casting doubt on the complainer's honesty or showing a motive to fabricate allegations. In the main, responses to the proposals from organisations representing the legal profession and the judiciary thought the present system largely satisfactory and saw little need for reform (Scottish Executive, 2000).

Prejudicial effect

1.44 The statutory provisions of the first Scottish "rape shield" legislation did not make any attempt to restrict the admission of evidence which may have a prejudicial effect. The concern highlighted by Redressing the Balance was that the Defence might suggest invalid inferences to the jury on the basis of evidence, and "play on the kind of doubtful presumptions and prejudices which judges and jury members might hold" (2000: para 100).

Relevance

1.45 Another key problem with the 1995 Act, identified by the research by Brown et al (1993) and flagged up by Redressing the Balance was that the provisions simply did not deal with the complex but very real issue of the relevance to the charges libelled of the evidence sought to be introduced. The court is given no indication as to what ought to be the guiding principles on which it makes its decision as to relevancy. With the exception of incrimination, there was no requirement on the accused to demonstrate the relevance of the evidence which he wished to introduce to any of the issues requiring to be proven at trial and, even if only relevant evidence is admitted, the provisions took no account of its potentially prejudicial effect. In allowing too wide a discretion, through the "interests of justice loop-hole", the purpose of the legislation could be undermined, since the court is unlikely to exclude any evidence which may be even slightly relevant.

1.46 Despite the recognition of some of the potential problems, in its final legislative formulation, there was no requirement in the first "rape shield" legislation to address the issue of relevance. The legislation also neglected to address the issue of the potential prejudicial effects of sexual history and sexual character evidence. Hence the proposals set out in Redressing the Balance, to widen and strengthen the existing restrictions on sexual history and character evidence, and to sharpen the focus on relevance were a clear attempt to address the perceived deficiencies of the earlier legislation.

1.47 In considering what changes to the law might be appropriate, Redressing the Balance had 2 basic objectives:

  • To ensure that evidence of the complainer's sexual history and/or her character is only admitted when its relevance to the crime libelled has been demonstrated; and,
  • To ensure that such evidence is not admitted if it is likely to cloud the issues unnecessarily or cause undue prejudice and accordingly distort the judicial process.

1.48 In framing the proposals to address the question of relevancy Redressing the Balance drew heavily on the approach adopted in Canada, which requires the court to assess the probative value of the evidence against its possibly prejudicial or misleading effect. The approach adopted by s.276(2) of the Canadian Criminal Code is to prohibit evidence of any sexual activity engaged in by the complainer, other than that forming the subject matter of the charge, unless the court has decided, following a written application, that: the evidence is of specific instances of sexual activity; is relevant to an issue at the trial; and, has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice. In determining admissibility, the Judge must take a range of factors, including the interests of the complainer, into account.

1.49 Redressing the Balance also suggested the need for requiring applications to introduce otherwise prohibited evidence to be made in writing and for the court to be required by statute to state what its reasons are for admitting such evidence, to what issues it is considered relevant, the nature or extent of the evidence to be admitted, and the use to which it is to be put, on the basis that written applications and reasons should help to focus the issues of relevancy and possible prejudice more clearly, and prevent evidence admitted for one purpose thereafter being used for another invalid one.

The Sexual Offences (Procedure and Evidence) (Scotland) Bill

1.50 Following the consultation, the Scottish Parliament published the Sexual Offences (Procedure and Evidence) (Scotland) Bill in June 2001, which proposed the strengthening of the existing prohibitions and exceptions (s.274 and s.275), the latter limiting the discretion of the trial Judge through the introduction of more detailed guidance regarding the circumstances of when sexual character evidence may be adduced.

1.51 The Policy Memorandum of the Bill acknowledged the deficiencies in the existing provisions: namely that they were sufficiently elastic not to discourage the use of sexual history and sexual character evidence; that even where such evidence was relevant, its probative value was frequently weak when compared with its prejudicial effect and, that the provisions rely heavily on individual Judges to achieve a proper focus on these matters, without providing clear guidance (Scottish Executive, 2001b: 5-6). Other deficiencies recognized by the Scottish Executive concerned the lack of any express requirement that evidence or questioning must be relevant before it is admitted; the lack of any weighing up of the potentially prejudicial effect caused by diverting a jury's attention from the issues it requires to determine in arriving at a verdict; the lack of guidance on how the general "interests of justice" exception is to be interpreted; the lack of guidance on the content of a decision on admissibility; and the fact that the complainer's privacy and dignity are not accorded any particular status (Scottish Executive, 2001b: 6).

1.52 The Scottish Parliament passed a motion agreeing the general principles of the Bill following the Stage 1 debate in November 2001. Stage 2 consideration was undertaken in December 2001, and a number of amendments were agreed, including the addition of a new provision to change the law on the disclosure of an accused's previous convictions in rape and other sexual offence cases.

The Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

1.53 The Bill was passed by the Scottish Parliament in March 2002 and received Royal Assent in April 2002. The Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 came into force in November 2002. It had 2 purposes. The first, to prevent the accused from personally cross-examining the complainer, was to be achieved by requiring the accused to be legally represented throughout the trial. Warnings and preliminary stages are built into the criminal justice process to ensure that the accused is made aware in good time of the need for legal representation and to encourage him or her to appoint a solicitor of choice, who can then instruct Counsel in the normal way if required. Where the accused does not do this, then a solicitor will be appointed by the court.

1.54 The second purpose, to strengthen the existing provisions restricting the extent to which evidence can be led regarding the character and sexual history of the complainer, was to be achieved by replacing s.274 and s.275 of the 1995 Act, which deal with sexual history and sexual character evidence. The substitute sections are aimed at discouraging 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. In addition, where the Defence does succeed in convincing the court that character or sexual history evidence should be introduced, the 2002 Act introduces provisions to allow the court to take into account any previous sexual offence convictions which the accused person has, in order to ensure equity in the possibility of deploying past history. These provisions for the disclosure of previous convictions are unique to Scotland, and are not found in rape shield legislation in other jurisdictions.

1.55 At the time of its introduction, the Bill which preceded the 2002 legislation was greeted with mixed reactions from academics, politicians and the legal profession. Some thought the reforms entirely unnecessary. Some gave the legislation a qualified welcome. Yet others saw it as a rational and robust attempt to protect both the rights of the complainer and the accused in sexual offence trials, aiming to strike a balance between protecting the complainer from indignity and humiliating questions, whilst at the same time admitting evidence which is nonetheless so relevant that to exclude it would endanger the fairness of the trial (Jamieson and Burman, 2001; Raitt, 2001).

Offences covered by the 2002 Act

1.56 Like the earlier legislation, the 2002 Act has a wide ambit in terms of the range of sexual offences it covers. Section 288C subsection (2) lists rape and rape-related offences, sodomy, indecent assault, age-related statutory offences, procurement, abduction and homosexual offences under the Criminal Law (Consolidation) (Scotland) Act 1995. The provisions also give courts the discretion to apply the requirements of the 2002 Act to other cases with a substantial sexual element.

1.57 The Act applies to trials for sexual offences heard under solemn and summary procedure in Scottish courts.

Advance notice of consent

1.58 A new section 149A requires the accused in a sexual offence case to give prior notice if his defence is to include a plea of consent on the part of the complainer. This incorporates both actual consent and the accused's belief in consent. Notice should be given at least 10 clear days in advance of trial, although the court can extend this on cause shown. Prior to the 2002 Act, such a defence could be introduced at any point in the trial.

1.59 In evidence to the Justice 2 Committee, the Deputy Minister for Justice explained that the policy aim of this amendment was to provide a complainer with sufficient forewarning to be able to prepare psychologically for questioning aimed at supporting such a defence (Justice 2 Committee, 2001b: column 745).

Restrictions on evidence relating to sexual offences

1.60 The structure of the 2002 Act is somewhat similar to the 1995 Act, in that section s.274 lays down a general prohibition on certain types of evidence relating to the complainer's sexual history and sexual character across a wide range of sexual offences, and at s.275 a set of exceptions are specified under which the evidence may be admitted, following permission to do so given by the court.

1.61 There is a general prohibition on evidence at s.274 (1) which shows or tends to show, that the complainer:

a) Is not of good character (whether in sexual matters or otherwise);

b) Has, at any time, engaged in sexual behaviour which is not part of the subject matter of the charge;

c) Has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual 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; and,

d) Has, at any time, been subject to any such condition or predisposition as might found the inference referred to in (c) above.

Wider scope of restrictions on character

1.62 As previously mentioned, a key concern of Redressing the Balance was that the provisions of the 1995 Act did not go far enough to prevent the kind of "subtle character attacks" used to undermine the credibility of the complainer which were identified in the research by Brown et al (1993). 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 issues of character or credit. The 2002 Act is thus much wider in scope as it includes general character evidence. As previously stated, the use of character evidence was largely seen as not directly relevant or material, and so already subject to some controls under existing law. The trial judge has wide discretion to disallow such questioning. Consequently, at the time of its introduction, the widened scope of the 2002 legislation was greeted with some scepticism by legal practitioners on the basis that general character evidence was already largely excluded by existing law (Scottish Executive, 2001a). This theme was echoed by some of the legal practitioners interviewed in this study.

Exceptions to restrictions under s.274 of the 1995 Act

1.63 As in the 1995 legislation, a set of exceptions to the restrictions under s.274 is specified, but the wording of this section is also somewhat different. S.275 (1) of the 2002 Act provides that the court may, on application made to it, admit such evidence or allow such questioning as is referred to in s.274 Act, if satisfied that:

a) 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 he or she is or has been subject;

b) That occurrence or those occurrences of behaviour or facts are relevant to whether the accused is guilty of the offence with which he is charged; and,

c) 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 arising from its being admitted or elicited.

Advance written notification to introduce restricted evidence

1.64 There are a number of key differences to procedure; under the 2002 Act it is necessary that a written application is made to introduce the otherwise prohibited evidence, before a trial commences, if either the Crown or the Defence wishes to present sexual history or character evidence (whereas the restriction under the previous legislation did not relate to the Crown).

1.65 Where either the Crown or the Defence seek to lead evidence about the complainer's sexual history or behaviour, in the face of the general prohibition laid down in s.274, written notice must be given, ordinarily, not less than 14 days before trial. This was subsequently amended by the Criminal Procedure (Amendment) (Scotland) Act 2004 to 7 days before the preliminary hearing in the High Court. The purpose of this is to ensure that the application is raised, as far as possible, before the trial rather than at a point when evidence is being led. Although later notice of an application may be permitted, this is only on "special cause" shown.

1.66 Such written applications require to specify:

a) The evidence sought to be admitted or elicited;

b) The nature of any questioning proposed;

c) The issues at trial to which that evidence is considered to be relevant;

d) The reasons why that evidence is considered relevant to those issues; and,

e) The inferences which the applicant proposes to submit to the court that it should draw from that evidence.

1.67 An intention of the written advance notification is to provide a greater degree of focus, requiring the courts to take time to consider in detail whether and how evidence is truly relevant and the extent to which it may divert attention onto issues which are not relevant. The Policy Memorandum which accompanied the Bill stated that advance written notice is an attempt to ensure that both the complainer and the Defence are clear at as early a stage as possible what the nature of the defence is, and what this may involve for the complainer (Scottish Executive, 2001b).

1.68 This timing enables the written applications to be considered at first or preliminary diet in solemn proceedings. 8 In practice, the requirement that applications to admit restricted evidence be decided at a preliminary hearing may mean that the judge evaluating the evidential value of the proposed evidence is not always the same judge that presides at trial. This is in contrast to the position under the 1995 Act, where applications to waive the restrictions upon evidence relating to the sexual history or sexual character of the complainer were made verbally to the court, during the trial, and the decision on whether or not to allow the proposed questioning or evidence was made by the trial Judge.

Determining relevance and admissibility

1.69 A notable difference between the 1995 Act and the 2002 Act is that the court has to determine the relevance of the proposed evidence or questioning. In doing so, the court has to consider a broad test - the proper administration of justice - and to do so must weigh the comparative benefit to the accused in having such evidence against any impact it might have on the dignity and privacy of the complainer. Section.275 sets up an explicit balancing exercise for the admissibility of evidence, where the court is required to take an evaluative approach. 9 Hence, the Act provides for a sharper focus on the relevance of evidence.

1.70 As stated earlier, Redressing the Balance (2001a) drew heavily on s.276 (2) of the Canadian Criminal Code in relation to assessing probative value and prejudicial effect of evidence, and this was largely taken up in the new legislation. Under the 2002 provisions, applications for admissibility of evidence will succeed 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 arising from its being admitted or elicited". The proper administration of justice includes "appropriate protection of a complainer's dignity and privacy," which acknowledges the rights of witnesses implicit in articles 3 and 8 of the European Convention of Human Rights. According to some commentators, this balancing exercise preserves judicial discretion while making the conditions for its exercise more explicit (Raitt, 2001).

1.71 In considering s.275 applications and determining the admissibility of any evidence or questioning, the court may hear evidence to assist in its decision and, in so doing, may seek evidence from other parties, for example, from medical doctors, psychologists or social workers. This is intended to minimise the interruption which might otherwise occur during the trial itself.

1.72 In considering a written application, the court may also set limits to the extent of the evidence to be admitted, or the questioning to be allowed. The admission of evidence may be subject to certain conditions, such as compliance with any directions issued by the court, or limitations on the use which can be made of evidence to support particular inferences

1.73 The court is required to set out its reasons for the decision on admissibility. In issuing its decision, the court is required to state what items of evidence or lines of questioning (if any) are being allowed, why they are considered to be admissible, the issues to which they are expected to be relevant, any issues to which they are thought not to be relevant and any uses which ought not to be made of them, together with any conditions or general directions the court thinks appropriate, for example, to protect the complainer from further questioning straying beyond the boundaries set in the application. The legislation also provides that such conditions may include limitations on the use which can be made of evidence to support particular inferences.

1.74 The 2002 Act also confers on the court an additional power to limit questioning or evidence as the trial proceeds, notwithstanding the decision on admissibility, or any condition attached to it.

Disclosure of accused's analogous previous convictions

1.75 In general, the Prosecution is prohibited from asking questions or leading evidence during a trial, before the sentencing stage, about any previous convictions that the accused may have. The justification for this rule is either that such evidence is irrelevant, or that it might prejudice the minds of the judge or jury against the accused, encouraging a tendency to judge the accused on past offences, rather than on the basis of evidence relating to the present charge.

1.76 Sections 266 and 270 of the 1995 Act established exceptions to this general rule, including one allowing the Prosecution, with the agreement of the court, to ask questions or lead evidence to demonstrate the "bad" character of the accused, including evidence about previous convictions or charges. Although these exceptions were very seldom used, an application to lead such evidence could be made where the Defence has asked questions or led evidence with a view to establishing the accused's "good" character, or attacking the character of the Prosecution witnesses, including the complainer. The purpose would be for the Prosecution to rebut evidence led by the Defence.

1.77 Redressing the Balance proposed that, where an application to admit evidence about the complainer's sexual history or character is granted, there should be automatic disclosure of any convictions the accused has for relevant sexual offences, arguing that if the past behaviour of the complainer is relevant to the case, then the same may be said to be true of the past behaviour of the accused (Scottish Executive, 2000). This sparked a good deal of controversy as it was considered, in particular by some members of the legal profession, that this would render the law in this area unfavourable to the accused, and that it would infringe the rights of the accused (Scottish Parliament, 2002). Arguments against automatic disclosure included the view that balance would require that the court should be obliged to determine whether any prejudicial effects of such disclosure were outweighed by the probative value of the information disclosed, as an equivalent to the arrangements proposed for the disclosure of the sexual history and character evidence of the complainer.

1.78 Amendments to the proposal outlined in Redressing the Balance were incorporated into the Bill to allow the accused to argue that any previous convictions should not be disclosed on the basis that this would be contrary to the interest of justice to do so.

1.79 Consequently, under sections s.275A (1) and (2) of the 2002 Act, where the Defence, following an application, does succeed in convincing the court that character or sexual history evidence should be introduced, the court is no longer prohibited from asking questions relating to offences other than the one with which the accused is charged. When the Defence makes an application under s.275, which is at least partially successful, the Crown will require to place before the judge, a list of the accused's previous relevant convictions. These are convictions for sexual offences which have been notified to the accused in advance of the trial.

1.80 Once the relevant convictions are before the judge, they will automatically be admitted as part of the evidence in the case and disclosed to the jury, unless the accused objects. The various grounds for objecting are set out at s.275 (4). An accused may object on the basis that: the offence did not involve a substantial sexual element; that disclosure would be contrary to the interests of justice; or, that the conviction does not relate to the accused. Where the ground of objection is that disclosure would be contrary to the interests of justice, the onus is on the accused to show that is the case. The court is to presume, unless the contrary is shown, that disclosure is in the interests of justice.

The Wider Context of Legal and Procedural Reform

1.81 Discussion of the procedural changes heralded by the introduction of the provisions of the 2002 Act needs to be located in its wider context, in order to allow a better understanding of the new provisions and an assessment of their impact. Since the publication of Redressing the Balance in 2000, a set of changes affecting the conduct and proceedings of the High Court have come into effect, which have, in turn, significantly transformed the legal and procedural context in which serious sexual offence trials are conducted. These developments include:

  • The far-reaching programme of reform introduced into the High Court of Justiciary heralded by the Bonomy Report (2002), which resulted in greater emphasis on pre-trial procedures, early case preparation by the Defence, and disclosure of evidential material by the Prosecution to the Defence;
  • The phasing in of the Vulnerable Witnesses (Scotland) Act 2004 which is designed to make it easier for vulnerable witnesses to give evidence in court;
  • The review of the law of rape by the Scottish Law Commission (2006) which attempts to re-define the definition of rape, and clarify the issue of consent; and,
  • The report of a Review by the Crown Office and Procurator Fiscal Service COPFS (2006) on the investigation and prosecution of rape and other serious sexual offences which made 50 recommendations for change.

High Court Reform Programme

1.82 In 2001, as part of a modernisation agenda following devolution, the Scottish Executive set up a review under Lord Bonomy, a High Court judge, to examine the practices and operation of the High Court of Justiciary, in the light of the increasing demands made on the court. The remit included the making of recommendations with a view to making better use of court resources in promoting the interests of justice.

1.83 Lord Bonomy reported just after the inception of the 2002 Act with a set of recommendations for modernisation, and specifically with the objective of bringing more order and a greater degree of certainty to the court's conduct and proceedings (Bonomy, 2002). The main problems and solutions identified are summarised as follows:

  1. Volume of business and managing the caseload. It was recognised that the High Court had become clogged with a high volume of cases. To alleviate this, the Report proposed raising the sentencing powers of the Sheriff and Jury court from 3 to 5 years, in order to reduce the volume of High Court indictments.
  2. Preparation of High Court cases. There was a concern about the high number of cases reaching the trial date with essential preparation incomplete, and the inconvenience resulting from a high level of adjournments. The solutions proposed were to ensure better-resourced and organised work by the Prosecution; the provision of more and earlier information to the Defence about the Prosecution case; and pre-trial discussions between Prosecution and Defence through a managed meeting. Mandatory preliminary hearings were proposed at which both parties discuss preliminary issues in front of a judge, and confirm their readiness to go to trial.
  3. Modernising time limits. Tight time limits were seen to contribute to a high level of adjournments. It was proposed that the only grounds for the court to extend a time limit should be "on cause shown" which means that the court has to be satisfied that there is a good reason for any extension.
  4. Encouragement to early realistic pleas. The Report recognised the inconvenience caused to witnesses, victims and jurors, by the high volume of cases where accused persons plead guilty on the day of trial. This was to be partly addressed by the measures to encourage earlier case preparation (referred to above).
  5. (Un)certainty that trials will proceed. The Report pointed to problems arising from uncertainty concerning the scheduling of cases, and the disruption of trials, often due to non-attendance of a bailed accused, or non-attendance of witnesses, and proposed a range of measure to address this, including the setting of a fixed date and time for most trials.
  6. Supporting victims and witnesses. A range of difficulties experienced by vulnerable witnesses were identified, including: lack of clarity concerning available support; trauma associated with the giving of evidence in the courtroom or listening to harrowing evidence; and anxiety surrounding the possibility of encountering the accused and his or her associates. It was proposed that the preliminary hearing address the needs of vulnerable witnesses for "special measures" helping them to give their evidence. Statutory backing for new forms of witness support would be provided by vulnerable witnesses' legislation. 10
  7. Infrastructure. The Report raised the need for appropriate resourcing of the High Court to support such changes, in terms of the training of practitioners and modernisation of buildings to provide a safe and secure environment.

1.84 Following consultation on the proposals, the Scottish Executive subsequently published a White Paper in 2003, and a programme of change was introduced which acted on the Report's recommendations (Samuel and Clark, 2003).

1.85 New ways of working for the judiciary and for those who prepare cases and appear before the court were phased in. These incorporated an emphasis on more productive work early on in the process with the introduction of the new preliminary diets, and early case preparation by the Defence. These also included a greater degree of communication between parties and open exchange between Prosecution and Defence as early in the case as possible, including routine disclosure of statements and other evidential material at an early stage of the proceedings.

1.86 From 1st April 2005, a new procedure introduced by the Criminal Procedure (Amendment) (Scotland) Act 2004 came into effect, whereby all cases in the High Court were indicted to a Preliminary Hearing, rather than to a Trial Diet, which had been what happened before then. The main purpose of the new procedure was to avoid the so-called "churn" in High Court trials, many of which had been adjourned on several occasions. Since 1 April 2005 all preliminary issues were supposed to be dealt with before a High Court case is set down for trial.

Scottish Law Commission Review of the Law of Rape

1.87 In June 2004, Scotland's First Minister, Jack McConnell, asked the Scottish Law Commission to carry out a wide-ranging and comprehensive review of the law of rape and other sexual offences. The terms of the review were to: "examine the law relating to rape and other sexual offences, and the evidential requirements for proving such offences, and to make recommendations for reform."

1.88 This followed some widely publicised High Court cases which sparked critical attention from the public, academics and lawyers. In the case of HMA v Edward Watt in 2001 the trial Judge dismissed the charge of rape, and referred the ruling to the High Court of Justiciary for clarification of the law. Up until this point, a defining element of rape was that sexual intercourse took place against the will of the victim. To prove that intercourse was against the woman's will it was necessary for the Crown to show that the accused used, or threatened to use, force. This understanding of the law changed when in what is known as the Lord Advocate's Reference (No 1 of 2001) the court held that rape is defined as a man having sexual intercourse with a woman without her consent, regardless of whether or not force was used. Following the Reference decision, a man commits rape if he has sexual intercourse with a woman without her consent, and he knows that she is not consenting or is reckless as to whether she is consenting.

1.89 Subsequent to the clarification of the definition of rape in this case, a number of appeal cases led to concern about the inherent and significant difficulties faced by the Crown Office in bringing about successful prosecutions for rape. These issues were considered in the later decisions of McKearney v HM Advocate11 and Cinci v HM Advocate12, which were widely interpreted as pointing to the existence of major problems for the Crown in proving the accused's lack of belief in the consent of the victim.

1.90 The appeal judgment in McKearney v HM Advocate in 2004 set out that the Crown has to prove beyond reasonable doubt not only that sexual intercourse took place and that it was without the consent of the complainer, but that the accused knew, or was reckless to the possibility, that the complainer was not consenting. In Cinci v HM Advocate the Court reiterated a further point made in McKearney that evidence of distress by the victim after an alleged rape could not act as corroboration of the accused's state of mind at the time of the rape.

1.91 In addition to the issues arising from the decisions of the High Court, other more general aspects of the Scots law on sexual offences were identified as requiring consideration and reform. Consequently, the Scottish Law Commission published a consultation paper setting out proposals to reform the law of rape and other sexual offences. The key issues of the consultation paper were: the need to define consent in statute 13; a redefinition of the act of rape to include non-consensual penetration with a penis of the vagina, anus or mouth; that protection should not only be given to those who cannot consent (such as children) but other vulnerable people (such as those with a mental disorder, or those over whom others hold a position of trust or authority); and, that sexual conduct with children should be a strict liability offence, for which no defence of mistaken belief in age or consent would be available.

Crown Office Review of the Investigation and Prosecution of Sexual Offences

1.92 Two years after the introduction of the 2002 Act, in late 2004, the Crown Office and Procurator Fiscal Service ( COPFS) announced a review of the investigation and prosecution of sexual offence cases in Scotland. The aims of the review were to make recommendations:

  • To improve the standard of service provided by COPFS to victims and witnesses of sexual offences;
  • For the development of comprehensive guidance for prosecution staff on the investigation and prosecution of sexual offences; and,
  • For the delivery of appropriate training to prosecution staff in the investigation and prosecution of sexual offences.

1.93 The comprehensive Report was published in June 2006, and contained 50 recommendations ( COPFS, 2006). Significantly for the research study reported on here, these include recommendations concerning the provision of guidance to Prosecution staff on the test to be applied and the approach to be taken to Defence s.275 applications, and the circumstances in which the Crown might require to make an application. Another important recommendation for change concerns the provision of information to the complainer at the precognition stage. Where the evidence suggests that sexual history or character evidence might be put in issue at a subsequent trial by the Defence, the precognoscer must seek to explore the complainer's position and explain why questions which the complainer may find distressing are to be asked. Furthermore, where the Crown receives notification of a s.275 application by the Defence, Victim Information and Advice ( VIA) should advise the complainer accordingly, and inform the complainer of the court's decision on the application. The precognoscer must consider whether re-precognition is required in order to obtain the complainer's position in relation to the matters raised in the application which have not been the subject of the earlier precognition. Other key recommendations of the COPFS Review include:

  • A comprehensive guidance manual on rape and other serious sexual offences should be produced for those who investigate and prosecute sexual offences;
  • A comprehensive system of specialised training should be developed within COPFS, and a system of certification should be developed for all COPFS staff working with sexual offences;
  • A programme of specialist training for Advocates Depute should be developed to ensure they are sensitised to the issues arising in sexual offences, and that they are supported in delivering the highest level of advocacy;
  • In all trials for rape and other serious sexual offences, there should be a presumption that the Advocate Depute introduces himself or herself to the victim and assists with any questions the victim may have about the procedure; and,
  • A comprehensive Information Pack should be published for use by both male and female victims of sexual offences, spanning their information needs across the entire criminal justice process.

Chapter Summary

1.94 The Sexual Offences (Criminal Procedure) (Scotland) Act 2002 was introduced in response to the perceived failure of s.274 and s.275 of the Criminal Procedure (Scotland) Act 1995. The 2002 Act introduced entirely new procedures designed to protect the complainer from irrelevant questioning. It excluded use by both the Defence and the Crown of evidence that is designed to show that the complainer: is not of good character; has engaged in sexual behaviour which is not part of the charge; has engaged in behaviour which might found the inference that he or she is likely to have consented; or is not a reliable or credible witness.

1.95 Advance written notice must be given of any applications to adduce sexual history or character 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. The court may request information or hear evidence to assist in the determination of an application, and must provide written reasons for its decision.

1.96 The 2002 Act changed the law on the disclosure of an accused's previous convictions in rape and other sexual offence cases. Where a Defence application is successful, the prosecutor is required to place before the judge any previous analogous convictions that the accused may have. The 2002 Act also introduced a requirement that advance notification must be given to the Prosecution if the defence is one of consent.

1.97 The 2002 Scottish "rape shield" legislation has some unique features. The restrictions extending to questioning or evidence introduced by the Prosecution are not found in other jurisdictions. The scope of the restricted evidence is very wide, extending beyond "sexual" character to include questioning or evidence about the complainer's general character, as well as sexual history. Under the existing Scots law of evidence "character" evidence is deemed collateral, in that it is not directly relevant or material, and largely inadmissible. This represents an important change to the scope of the legislation, and also constitutes another rather unique feature.

1.98 In the years since the publication of Redressing the Balance, and the subsequent inception of the 2002 Act, Scotland has seen some considerable developments, in terms of a set of wider reforms that have streamlined procedure for serious prosecutions, along with policy and practice reviews, and broader legislative interventions that, taken together, have quite considerably changed the legal landscape in which sexual offences trials are conducted. It is within this wider context that Scotland's latest attempt at the implementation of "rape shield" legislation needs to be assessed.