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Chapter Two: Research Aims and Methodology

Aims and Objectives

2.1 The first part of this chapter describes the overall aims and objectives of the research as specified by the Scottish Executive. The second part provides a description of the research methods, data sources, sampling procedures, and data analysis.

2.2 The stated aim of this research study is to evaluate the impact of the changes made to the law of evidence in sexual offences cases heard under solemn procedure at the High Court by the Sexual Offences (Procedure and Evidence (Scotland) Act 2002 (the "2002 Act"). The research has 5 main objectives:

a) To establish how the legislation is being applied in practice and whether the use of sexual evidence differs from the use of such evidence prior to the inception of the Act;

b) To establish the extent to which previous convictions of the accused are disclosed, the circumstances under which they are disclosed and any impact this has on proceedings;

c) To establish the impact the Act has had on the outcome of cases;

d) To establish the extent to which parties are continuing to use sexual history and/or character evidence without an application to the court and in cases where applications have been made the extent to which the parameters set within the application are adhered to; and,

e) To examine complainers' experiences of the court process.

The Law of Evidence in Sexual Offence Trials Baseline Study

2.3 In order to facilitate this work, a prior baseline study was commissioned to the same research team by the Scottish Executive in 2003. The key objectives of the baseline study, as specified by the Scottish Executive, were:

a) To explore the nature of the examination-in-chief and cross-examination of complainers in sexual offence cases and assess whether, to what extent, and in what circumstances questioning of the complainer may have been intimidating, humiliating or harassing, and to what extent and in what circumstances the judiciary or Prosecution intervened to prevent this;

b) To examine how often, in what kinds of case and on what grounds the Defence applied to the court to lead evidence about sexual history and character, and how often these applications were granted, and how often and in what kinds of cases such evidence was introduced by the Defence without an application to the court, and without objection;

c) To examine how often, in what kinds of case and on what grounds information about the sexual history and character of the complainer was led by the Prosecution or introduced as a result of questioning from the judge;

d) To explore how often and from whom objections to the use of such evidence were made and how often these objections were upheld;

e) To explore how often the defence of consent was employed by the Defence and at what point in the trial this was introduced;

f) To provide data on the length of sexual offence trials, and the causes and extent of delays in trials starting or being adjourned;

g) To examine the extent and nature of the use of special arrangements to assist complainers in giving evidence e.g. use of CCTV, screens, allowing a supporter to sit nearby; and,

h) To examine how often, and in what circumstances, judges used their powers to clear the courtroom before evidence from the complainer was led.

2.4 Not all of the baseline study objectives are replicated in the current study. Furthermore, whereas in the baseline study, the research ambit included both High Court and Sheriff Court data on sexual offence cases, in the current study the research focuses solely on the High Court. Therefore the findings relating to High Court data only are drawn on throughout this Report.

2.5 The baseline research study entailed a retrospective analysis of all sexual offence cases heard under solemn proceedings in Edinburgh and Glasgow Sheriff Courts. Data was collected on sexual offence cases which took place in the High Court and the Sheriff Courts in 1999, 2000 and 2001, which were the 3 years preceding the implementation of the 2002 Act. The baseline report provides a comparative starting point for an evaluation of the effectiveness of the provisions of the 2002 Act, presenting a picture of how legislation to protect complainers in rape and other sexual offence trials was being applied before the change (see Burman et al, 2005).

2.6 For the baseline, data were obtained from written records on sexual offence trial charges, outcomes, special measures and the uses of the relevant provisions of the 1995 Act, which restricted the use of sexual history and sexual character evidence. This information was obtained for 313 High Court sexual offence cases identified as having proceeded to trial in the 3-year research period. A sub-sample of 84 High Court cases were selected for more detailed scrutiny by analysing sections of the tape-recordings of these trials. This included all 66 trials which involved an application to introduce sexual evidence under the 1995 Act, and an additional 18 trials which involved similar sexual charges, but which did not involve applications to introduce sexual evidence.

2.7 It is important to note that evidence of "general" character was not specifically excluded under the 1995 Act in the same way as sexual history and sexual character. Consequently, quantitative data on the use of "general" character was not collected in the base-line study in the same way as sexual character and sexual history data, the introduction and use of which was identified in relation to the relevant restriction and exception clauses under the 1995 Act. Because of the different scope of the 1995 Act, applications in the base-line study did not specifically seek to introduce "general" character evidence; nevertheless the use of character evidence in the base-line study can be determined from the transcribed trials.

Research Design And Data Collection

2.8 The current research study utilised a multi-method approach, using both qualitative and quantitative data collection methods. It employed both retrospective and prospective data gathering. That is, data on trials that took place since the introduction of the 2002 Act and the commencement of the research study (retrospective) and data on cases dealt with during the period of the research project (prospective). The principal components of the research were as follows:

• Mapping of all High Court cases involving the full range of sexual charges over a 12 -month period using computerised and written records. The research therefore extends beyond rape cases, and includes cases for attempted rape, assault with intent to rape, indecent behaviour, lewd and libidinous practices, the age-related statutory sexual offences, and sodomy;
  
• Detailed analysis of 30 sexual offence cases drawn from the mapping exercise, using transcribed taped proceedings of preliminary hearings and trials, and corresponding case Sitting Papers;
• Attendance at court to observe trials in full, and specifically the use of the 2002 legislation during the complainer's evidence;
• 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.

Mapping sexual offences cases (1st June 2004 to 31st May 2005)

2.9 An initial sexual offence case mapping exercise was carried out. This involved the collection of basic data on all cases involving sexual charges coming before the courts during a specified time period, in order to compile an accurate picture of the proportion of cases involving s.275 applications, and the outcomes in each case.

2.10 Identifying relevant sexual offence cases was facilitated by the assistance of High Court IT personnel and the use of the High Court Case Management System ( HCCMS), although not all of the information required to address the research objectives was obtainable from this system. Data on s.275 applications, outcomes and the consent Defence are not routinely recorded by the Scottish courts. It was therefore necessary to use other sources of data, in particular the Books of Adjournal, and the individual sexual offence case Sitting Papers stored in paper form in the High Court. Using these sources, all sexual offence cases called to the High Court in the 12 -month period, 1st June 2004 to 31st May 2005, were identified. The period June 2004 to May 2005 was identified in consultation with the Research Advisory Group. This period was selected primarily because it was thought that the HCCMS database, which was introduced in early 2004, would assist in the identification of relevant sexual offence cases.

2.11 Where available, the following information on the characteristics of the cases identified from the mapping exercise was inputted into an SPSS data file: case reference number; name of accused; charge(s); numbers of complainer(s); type of plea; whether case went to trial and evidence was led; duration of trial; whether notification of consent was lodged; whether, when, and by whom an application was made to introduce sexual history, sexual character or general character evidence and with what result; the outcome in the case of each charge and, where available, sentence.

Sample of 30 sexual offence trials from the mapped cases

2.12 A sample of 30 High Court sexual offence trials were identified from the mapping exercise. The trials were purposively selected, using a sampling rationale developed in consultation with the Research Advisory Group. The sample was not intended to be representative of all sexual offence cases, but rather to reflect the range of sexual offence trials heard at the High Court where the 2002 Act may apply.

2.13 Given the range in the particular qualities of cases, in terms of charge type, presence and absence of s.275 applications, and decision of the court whether or not to allow the evidence or questioning sought, purposive sampling was considered the most appropriate approach. This allowed identification of cases most relevant to the key research objectives.

2.14 In order to address the research questions, it was agreed that trials which display different combinations of key characteristics would be sampled, and to aim to include the following kinds of cases:

• Rape trials (involving both single and multiple charges) with s.275 applications;
• Other sexual offence trials (not including rape charges) with s.275 applications;
• Sexual offence trials where s.275 applications were not made and, where possible, to try to match these with application cases which display similar characteristics (i.e. in terms of charge type, relationship between complainer and accused);
• Trials where s.275 applications were challenged and/or were not allowed, in order to try to determine what constitutes inadmissible or irrelevant questioning; and,
• Trials where applications were lodged by the Defence only, the Crown only and both Defence and Crown.

2.15 The sexual offence cases that proceeded to trial identified through the case mapping exercise provided the sampling frame. There were 123 sexual offence trials, and the target sample number for more in-depth analysis, specified by the Scottish Executive, was 30 trials, just under a quarter (or 24%) of the mapped trials.

2.16 Differential selection criteria were employed for each category of trial in order to obtain a spread of trials involving different s.275 application decisions, whilst retaining a strong focus on single charge rape cases. Because of the relatively large number of such cases, single charge rape trials with fully and partially successful Defence applications were randomly selected; conversely, because of their relative scarcity, single charge rape Crown only application cases, and those involving applications by both Crown and Defence, were purposively selected. Refused applications were rare; hence all such cases in this category which were available were selected for transcription. Cases which did not involve applications were also included in the sample. Table 2.1 shows the trials selected for transcription by the type of charge involved and whether or not an application was made in the case.

2.17 All of the corresponding paperwork relating to each sexual offence trial and preliminary hearing was obtained. Details of the written applications were obtained from the case Sitting Papers. Each of the 30 trials, and the associated preliminary hearings in which applications were submitted and decided, were transcribed from the court tapes. The tapes of the relevant preliminary hearings where any applications were discussed were all transcribed verbatim. The trial tapes were selectively (rather than fully) transcribed, with a verbatim transcription of the complainer(s) examination-in-chief, cross-examination and re-examination, and a selective transcription of the summings-up by the Crown, Defence and trial Judge. The trials were highly variable in length, ranging from one to 6 days. Consequently, the typed transcriptions ranged from 30 to 170 pages in length, particularly those involving more than one complainer, and those where the complainer was in the witness box for several hours.

Table 2.1: Trials selected for transcription by type of sexual charge(s), whether s.275 application made and decision of court

* in 2 cases both applications were allowed in full; in one case the Crown application was allowed in full, and the Defence application in part; in one case the Crown application was withdrawn and the Defence application was allowed in full

2.18 Pro formas for each of the 30 transcribed trials were completed, recording charge details; offence locus; relationship between complainer and accused; preliminary hearing and trial dates; whether a s.275 application was made, and by whom; s.275 application contents and court decisions regarding relevance and probative value; and any use of sexual history and/or character evidence in the trial (see Appendix 1).

Court attendance and trial observation

2.19 Notification procedures were established to enable the research team to be advised of forthcoming trials by High Court staff in order to facilitate trial attendance. This notification was highly beneficial and facilitated this aspect of the research. The researchers were regularly provided with a list of sexual offence cases, drawn from the HCCMS, with details of charge(s), court location and dates. This list also detailed whether or not a s.275 application to introduce otherwise prohibited evidence had been made in the case.

2.20 The researchers also obtained the weekly sitting lists for the High Court in Edinburgh and Glasgow. The Sitting Lists detail the dates and locations of fixed and dedicated floating trials, and allow for closer monitoring of the likely trial start date. Before a trial commenced, the research team contacted the relevant High Court for advice on dates of floating trials, and to notify the court clerk that a researcher would be in attendance.

2.21 Although research access had been granted by the Lord Justice-General, permission to remain in the closed court was sought from the trial Judge on the day of the trial. The agreement of the complainer to the presence of a researcher was also sought.

2.22 Ten High Court trials in all were attended from the start of the trial to its completion. Detailed notes were taken of the entire proceedings using a laptop. As far as possible the exact sequence of questions and answers were recorded for all witnesses called in the case, but with particular attention paid to the questioning of the complainer(s) during evidence-in-chief, cross-examination and re-examination. All references made to s.275 applications and provisions of the 2002 Act were recorded as close to verbatim as it was possible to do so. The case Sitting Papers were used to obtain any further relevant information, such as the details of any application lodged and decided at a preliminary hearing, and the presence of previous analogous convictions of the accused. Table 2.2 shows the charge type and whether or not an application was made in the ten attended trials.

Table 2.2: Attended trials by type of sexual charge(s), whether s.275 application made and decision of court

(a) the Defence application was partially allowed, the Crown application was allowed in full;

(b) there were 3 Defence applications in this case; one was partially allowed; one was refused; and the judge refused to consider the third.

2.23 The corresponding tapes of any preliminary hearings dealing with s.275 applications in the attended trials were also transcribed. A list of observed trials with details of sexual charge type, whether an application was made, whether or not a defence of consent was made, and trial outcome can be found in Appendix 3.

Interviews with legal professionals

2.24 Interviews with Judges, Advocates Depute and Defence Counsel were undertaken to address specific aspects of the research questions, and to explore their perceptions and experiences of the legal reform. Face-to-face interviews were undertaken with 4 Judges, 5 Advocates Depute and 5 Defence Counsel (one of whom was a Solicitor-Advocate). Each interview lasted approximately one hour. With one exception, all interviews were digitally recorded and then fully transcribed. The exception was an interview with a Judge who declined to be recorded; in this case 2 researchers attended, one asked questions and the other took handwritten notes. Numbers of interviews with legal professionals are small but provide useful insights into the operation of the legislation. That said, the small number does mean that the views expressed are illustrative rather than representative.

2.25 Legal professionals were approached for interview on the basis that they had been involved in sexual offence cases which invoked the 2002 Act. All had considerable experience of sexual offence cases, and most had experience of the operation of the earlier 1995 Act.

Interviews with complainers

2.26 Interviews were undertaken with 4 complainers who gave evidence in sexual offence trials heard since the introduction of the 2002 Act. Several research studies have reported difficulties in finding complainers willing to participate in research on criminal justice responses to sexual assault (see, e.g. Gregory and Lees, 1999; Harris and Grace, 1999) and this research was no exception. The final decision to allow complainer interviews to be undertaken was taken by the Research Advisory Group relatively late in the research period, after all of the court-based fieldwork and most of the other interviews had taken place.

2.27 As a result of this late decision, it was not possible to approach complainers for interviews at the same time that they were approached to ask whether they would object to a researcher's presence during the trial, as intended, and this contributed to the difficulties of recruiting complainers to participate in the research. Consequently, complainers were approached solely through support organisations, such as Rape Crisis Scotland, Victim Support Scotland and the Violence Against Women Network of the Scottish Women's Convention, which also ensured that they had access to appropriate support.

2.28 All 4 complainers were female and white. The accused was well known to the complainer in each case. Three of the complainers had been allegedly assaulted by a single male assailant. In the first, which involved a single charge of rape found not proven, the accused and complainer had dated previously. In the second, the accused was the complainer's father. This case involved multiple sexual charges including a rape charge. The accused was found guilty of some charges, but not the rape. The third case involved a single charge of rape, found not proven. The fourth case involved 2 complainers (although only one was interviewed) and 2 accused charged with several charges of a sexual nature, but not including rape. None of the complainers knew whether an application had been made in the case. Interviews with complainers are discussed in Chapter Nine.

2.29 Interviews with complainers typically lasted for between an hour and an hour and a half. Three took place in a comfortable private room in the offices of a support organisation. A support worker was present, at the complainer's request, in one of these interviews. The fourth interview took place in a private office at the work place of the complainer. All complainer interviews were recorded and fully transcribed.

Notations

2.30 All direct quotes from interviews are anonymised and non-attributable. Where quotes are presented from interviews, or reference is made to specific cases, various notations are used. The interviews are identified by a number (e.g. Judge 1; AD 3; Defence 4; C 2). The 30 transcribed trials and the 10 attended trials are coded by a 3 digit numeric reference (e.g. 006; 156; 212), which relate to a case identifier.

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