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

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Chapter Four: Making s.275 Applications to Introduce Otherwise Prohibited Evidence or Questioning

Applying The Provisions

4.1 This chapter aims to establish how the relevant provisions of the 2002 Act are being applied in practice, by focusing on how applications to introduce otherwise prohibited evidence or questioning are made. As such, the chapter focuses primarily on the pre-trial process.

4.2 The chapter describes the process of submitting applications. It also provides a detailed examination of the written contents of s.275 applications, including the nature of evidence sought, the nature of questioning proposed, the issues in the trial to which evidence is considered to be relevant, the reasons why evidence is considered relevant, and the inference(s) that the court should draw from the evidence as put forward by the Crown and the Defence in their written s.275 submissions to the court (see Appendix 4 for a full list of evidence sought in applications).

4.3 In order to illustrate the process of making applications and offer insights in terms of the nature of the evidence or questioning sought, the chapter also draws on data from the in-depth analysis of transcribed trials and attended trials with applications.

Table 4.1 Transcribed and attended trials by type of sexual charge(s), whether s.275 application made and decision of court

Charge Type

Without s.275

With s.275 applications (Final decisions)

Total

Allowed in full

Partially allowed

Refused

Transcribedtrials

Defence only

Crown & Defence

Crown only

Defence only

Crown& Defence

Defence only

Crown & Defence

Crown only

Rape only

5

3

3 a

3

3 b

1 c

1

0

0

19

Rape with other

sexual /non-sexual charges

1

2

0

0

2 d

0

0

1 c

0

6

Sexual offences other than rape

0

3

0

0

0

0

1

0

1

5

Total

6

8

3

3

5

1

2

1

1

30

Observed Trials

Rape only

1

1

1

0

1

1

0

0

0

5

Rape with other

charges

1

1

1

0

1

0

0

0

0

4

Sexual offences other than rape

0

0

0

0

1e

0

0

0

0

1

Total

2

2

2

0

3

1

0

0

0

10

Total All Trials

8

10

5

3

8

2

2

1

1

40

Notes to table: a. In one case the Crown s.275 application was withdrawn before trial; b. One case involved 3 s.275 applications for same complainer: one allowed, 2 refused; c. In both cases, the Crown s.275 application was allowed in full; d. Includes one case with 2 s.275 applications, one of which was refused; e. Defence submitted 3 s.275 applications: one partially allowed; one refused, and the third considered unnecessary.

4.4 Table 4.1 presents information on the quantity and the nature of the data used in this and subsequent chapters. It shows the types of charges involved in the 30 transcribed and the 10 attended trials, whether or not s.275 applications were made in the trial, and the corresponding decisions by the court. Twenty four of the 30 transcribed trials involved at least one s.275 application, as did 8 of the 10 observed trials (see Appendices 2 and 3 for further details of charges, s.275 details and verdicts in these trials).

4.5 The chapter also draws on interviews undertaken with the legal practitioners in order to present their views on the process of making applications and the changes in procedure introduced in the 2002 Act, including the need for the accused to give advance notification of a defence of consent. Interview data is also drawn on in order to assess the impact of those changes from the perspective of practitioners involved in sexual offence trials.

Advance notification of defence of consent

4.6 Chapter Three detailed the proportion of cases which involved a defence of consent; in those cases which proceeded to trial, it was just over half (55%).

4.7 Judges regarded the required prior notice of a defence of consent as either neutral or as helpful. The former position was summed up by the observation that: "the Prosecution is on notice in any case that consent will be an issue" (Judge 1). In contrast, Judge 4 stressed that it gave the Crown and the court proper notice and presuming that because the Crown had notice, it allowed the complainer notice that such a defence would be used. It also allowed the Crown to investigate any issues surrounding consent in advance of the trial.

"I would say that's been helpful, in the sense that it means everyone knows the limitations of what's going to happen in the trial before you get there. And so the Crown have proper notice of what the line is going to be. The court has proper notice of what the line is going to be. And of course, because the Crown have it that means that the complainer has it. And so that means that the Crown can investigate any issues surrounding that in advance of the trial. And can raise it with the complainer as well." (Judge 4)

4.8 However, interviews with Advocates Depute suggested that complainers are not always informed of this, largely because of a concern that this might affect the evidence which the complainer will give, and create a risk of allegations of coaching. In response to a question on whether and when complainers are told, Advocate Depute 1 said:

"No. A defence of consent is simply notice to the Crown. I would however expect that the precognoscer will always have asked the complainer questions directed to the question of consent. You can see it coming. You can see it coming in most cases anyway. If you've got a rape and you can prove intercourse, then it's either consent or it's an honest belief that there was consent, it's got to be one of these 2, so you can see it coming and you take account of it. What you don't do is say to the complainer "he says that you consented", because if you do that you'll affect the evidence that she gives. And also what will happen will be that in the court she will say "the Prosecutor told me that he said that I consented and I didn't". And all hell will break loose about what the Prosecutor has been telling the complainer and were we influencing and coaching." ( AD 1)

Advance written notification to introduce otherwise prohibited evidence

4.9 Where either the Crown or the Defence seek to lead evidence about the complainer's sexual history or character, written notice must be given, ordinarily, not less than 7 days before the preliminary hearing in the High Court. 24

4.10 The purpose of this advance submission 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, and in these circumstances, a s.275 application could be considered by the court at a later stage, or indeed, during the course of the trial itself. These requirements apply to both Crown and Defence.

Who is making s.275 applications?

Table 4.2 Party making s.275 applications (transcribed and attended trials)

Transcribed trials
with s.275

Attended
trials with s.275

Total s.275
trials

Crown and Defence

4

3

7

Crown only one s.275

5

0

5

Defence one s.275

9

5*

14

Defence two s.275

5

0

5

Defence three s.275

1

0

1

Total

24

8

32

*In one case (234) the same application was submitted 3 times: the first time it was considered not relevant; the second submission was partially allowed; and on the third submission, the judge refused to reconsider the application.

4.11 Chapter Three showed quite clearly that the majority of applications are made by the Defence. This is no different in the sample of 32 transcribed and attended trials as Table 4.2 shows.

Defence decision-making concerning s.275 applications

4.12 The need for written s.275 applications to be notified in advance, and decided at a preliminary hearing, together with the enhanced disclosure of information gathered by the Crown (see Chapter One) have meant a number of changes in approach to case preparation taken by the Defence. In particular, this has affected the timing of their decision concerning whether or not to make an application to introduce sexual history or character evidence.

4.13 Interviews with Defence practitioners revealed that they assess the need for a s.275 application in a sexual offence case at a very early stage of the proceedings, often before the case has been indicted. In answer to a question about when a decision to make an application would first be made, one said:

"It depends on what information I have at the first meeting. Sometimes, historically the Crown has been quite slow in giving you information and you might not have the full set of precognitions. Now with the new disclosure rules, when you first come to consult with the client, you tend to have all the police statements, so you've got a broad picture of what the case is against the accused. My general practice is if I have a full set of statements, then we will go over that and yes my questions at that stage - because I will have a statement from the complainer - will be targeted to find out if there is anything that will require a s.275 application." (Defence 1)

4.14 The key impact of the requirement for advance notification of an s.275 application from the perspective of Defence practitioners is that consideration of whether there might be a need to introduce sexual history or character evidence comes at a much earlier stage in the proceedings than was the case under the 1995 Act or, as one said "preparations are a lot more front-loaded" (Defence 3). The following 2 extracts sum up the Defence position on the difference between the 1995 Act and the 2002 Act in terms of the need for early stage case preparation:

"Now I specifically ask for information which I think might be the subject of a s.275 application. I mean I won't identify it to an accused but I will ask around about information, if there's any information that they know about the complainer etc. and my questions will be specifically targeted to eliciting information that might be the subject of a s.275 application." (Defence 1)

"I'm having a consultation this afternoon with a firm of solicitors in connection with a rape case which has not yet been indicted, it's still at the petition stage, and this is our first consultation. It won't be fully detailed, but it will be sufficient to let me know whether s.275 is going to be on and that will be the first note I'll make today in big, bold letters s.275." (Defence 2)

4.15 Interviews with Defence practitioners also indicated an approach which erred on the side of making an application if they could identify any line of questioning or evidence that they regarded as having a bearing on the credibility or consent of the complainer which seemed likely to be admitted:

"I do think that we're back to covering ourselves again and I want to make sure that I've done all that I can, it won't be left open to criticism in the future, whilst on the one view as you and I sit here we may say how could [sexual history evidence] be all that relevant, I think in the eyes of some people on a jury it might well be. I think that may well ring as quite a strong factor to some people." (Defence 3)

4.16 The approach of erring on the side of making an application included taking the precaution of making an application even when the proposed questioning or evidence concerned events shortly before or after the subject matter of the charge, and were, therefore, arguably beyond the need for an application:

"… you feel you really have to avoid any comeback on you in these days of Anderson appeals and all this sort of thing or defective representation. You really have to almost adopt a belt and braces approach. And if you are in doubt, "Is this shortly before or shortly after?" Put it in." (Defence 4)

4.17 This interviewee also went onto explain how changes in disclosure had opened up new material to draw on in constructing an application concerning the credibility of the complainer.

"With disclosure now such as it is, I mean we get all the police statements now, statements given by the complainers, these can be used in cross examination which we couldn't do before, … so that again opens up areas of attacks on credibility because there might be a prior and [in]consistent statement, for example if the complainer has said in evidence, "I was raped in the living room" and then in the police statement said "It all happened in the bedroom"." (Defence 4)

4.18 The fact that the Defence may be making s.275 applications which need not be made in the first place, may be one of the reasons why the Crown do not oppose Defence applications, although this possibility was not put forward by any of those interviewed.

Deciding not to make an application

4.19 Informal conversations with Defence practitioners in the courts during the course of research field work revealed that where an accused had previous analogous convictions, then this would act as a strong disincentive for not making applications, even where they thought that the use of sexual history or character evidence was relevant and would assist the Defence case. This view was upheld in formal interviews, as Defence 5 put it: "It would have to be pretty powerful [evidence] before you'd put a rape conviction before the jury and so no I probably wouldn't make one." The view of practitioners in relation to the potential disclosure of an accused's previous analogous conviction following a successful Defence application, and the extent to which previous convictions of the accused are disclosed is discussed in much more detail in Chapter Six.

Crown decision-making concerning s.275 applications

4.20 In the first instance, Crown applications are drafted by an indicter within the Crown Office, although, if called upon to do so, Advocates Deputes may give instructions as to the need for a Crown application, but only if asked at an early stage.

"When we come to prepare a case for the preliminary hearing we should be considering whether there's anything which should be covered by an application and then giving a further instruction that an application be prepared." ( AD 3)

4.21 The Advocates Depute interviewed had mixed feelings about the need for the Crown to make an application to introduce sexual history evidence or, as one put it in relation to the leading of evidence about virginity, the need to make an application to lead evidence of "the absence of sexual history evidence":

"I've mixed feelings about that. It's a pest. And it's very easy to overlook it. And it's very easy to overlook it because this is our complainer. Of course we need to lead evidence about that, if relevant. ……… To have to go to court and make an application to do what of course we have to do. On the other hand if the point of this is to make the court take responsibility for the protection of the privacy and dignity of the complainer then I can see why this would have to be even handed and why the Crown would have to do it as well. It just seems like an awfully cumbersome thing to have to do and the parameters of it are not very clear. There was, in one case, an Application recently, I think, to establish that the complainer had not had sex. Now I'm not at all sure that the Act requires authority for that." ( AD 1)

4.22 Whilst there was broad agreement amongst Advocates Depute concerning the need for the Crown to make applications, there was a view that it was a "cumbersome " procedure and that, sometimes, the parameters are unclear. As one said:

"It's fair enough. What's sauce for the goose is sauce for the gander and there are occasions which the Crown need to raise restricted issues to put matters in context and so it's quite proper that the same restrictions should apply to the Crown and the Crown should have to ask permission of the courts to raise these issues." ( AD 2)

4.23 A third suggested that the need for an application is not always at the forefront of the Crown's mind, unlike the Defence who are very mindful of the possible need for an application from a very early stage in the proceedings. Moreover, the possibility that the Advocate Depute at trial may be a different person to the one at the preliminary hearing(s) can present difficulties:

"… I think it's more difficult to remember to prepare and to decide what the approach is, particularly from the point of view of the Crown when there will be a different AD who prepares the case from the one who runs it. So it's making a decision about what someone in the future would wish to have covered. But I think, in general, there's a greater risk that something will be overlooked from the Crown because we don't come at it as thinking … we are attacking her character, … the Act appears to be to protect attacks on character. We tend to be seeing it as explaining how it is that what she says is correct. We will be doing it on the whole to boost credibility." ( AD 3)

4.24 The Crown and Defence will inevitably have a different approach to "rape shield" legislation, as they have different interests. The Defence will be looking very keenly at undermining and attacking the complainer, who will be the principal witness against the accused. This will often be the basis of the Defence case. As Advocate Depute 3 notes, the Crown position is quite different. In the main, the Crown will not be intending to lead evidence which will serve to undermine the complainer. There may be no evidence from the Crown, which would require an application.

The requirement of a written s.275 application

4.25 Under the 1995 Act, s.275 applications were submitted verbally during the trial, usually following the complainer's evidence, although occasionally during the complainer's cross-examination by the Defence. The discussion which preceded the decisions by the court as to whether or not to allow the evidence or questioning sought, was usually very brief. The Defence usually made reference to the provisions of the legislation which set out the exceptions in s.275 (1) under which the evidence could be introduced. Ninety one percent of all applications in the baseline study invoked s.275 (1) (c) "the interests of justice", either on its own, or in combination with one or more of the other exceptions. The issues in the trial which the evidence was intended to address were infrequently specified.

4.26 Chapter One details how, under the current legislation, s.275 applications now need to specifically address certain matters and so adopt a particular format, as follows:

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.

4.27 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.

4.28 Written applications under the 2002 Act provide the court with the opportunity to see clearly what evidence is being sought, the precise nature of such questioning, and the reasons such evidence is considered relevant to those issues.

4.29 The requirement that the s.275 application be in writing was generally seen by Judges as a sensible procedure encouraging precision and as one put it: "if one Judge is to be bound by another then it has to be in writing " (Judge 1). Two others (Judge 2 and Judge 4) maintained that the requirement that a written application be lodged in advance of the preliminary hearing enabled the Crown to "prepare the complainer, for the lines of cross-examination and indeed to produce evidence to rebut any lines which are being developed" (Judge 2). However, both Judges stated that they did not know whether the Crown sought to inform the complainer about applications.

4.30 The need for precision in drafting was recognised by both Defence and Advocates Depute:

"They don't want general comments like on a day in 2004 the … complainer went to a nightclub and left with a stranger. That is just … is not specific enough for the court's purposes. So they do require the Defence to do some work and not just fly kites." ( AD 2)

4.31 Whilst Defence and Advocates Depute felt that written applications were useful for forcing attention on evidential requirements and the key issues in the trial, some spoke of the requisite format leading to a degree of overlap and repetition in the written application. Scrutiny of written applications indicated considerable overlap in the required parts, particularly those dealing with the issues to which the evidence is relevant, the reasons why it is relevant and the inferences to be drawn from the evidence or questioning sought.

4.32 The next sections present findings from the written contents of applications made in the 32 transcribed and attended trials. Since the overwhelming majority of applications are made by the Defence, they primarily deal with those applications, although one section is devoted to Crown applications.

Evidence or questioning sought to be admitted or elicited

4.33 In a little over half (18) of these trials, a single application to introduce sexual history or character evidence was made. Thirteen trials involved 2 applications, and one trial involved 3 separate applications. This means a total of 47 applications were made in the 32 trials.

4.34 Unlike such applications made under the 1995 Act, there was not always a specific reference made by the party making the application to the specific exception clauses that may apply in each case. Rather, the written application details particular questions to be asked of the complainer (or any other witnesses), and outlines the purpose of the evidence to be elicited.

4.35 The exclusion clauses 25 were explicitly referred to in 10 cases, although for the most part, the specification of the provisions occurred following a query by the Judge or, on a few occasions, by the Advocate Depute in a challenge to an application made by the Defence. Reference to the exception clauses 26 of the legislation was made by the applicant in 11 cases. The majority referred to s.275 (1)(a): "specific occurrences of sexual or other behaviour demonstrating the complainer's character or predisposition".

4.36 Typically, under the heading the "nature of evidence sought", applications identify the kind of questioning to be pursued, and often specify particular questions to be asked in the trial. As some Defence practitioners pointed out, they try to be very precise in terms of specifying the evidence or questioning sought in applications, because of a belief that the Judge will be looking for precision in the drafting:

"I'm very aware that the judges will interpret the section, I think reasonably strictly. Specifics, that's really what it's about, specifics, nature of detail, and a client trying to say "x", "y" and "z" will have to be told unless we can come up with specifics perhaps in some occasions, details to back up what he's saying, then we can't consider a s.275." (Defence 2)

4.37 Table 4.3 shows the type of evidence and questioning sought. It draws on analysis of all of the applications (that is, 47) made in the 32 trials. The figures were compiled by doing a first count of all the different types of evidence and questioning sought across all applications, then aggregating this to show the overall proportions.

4.38 The table shows the extent to which sexual history and character evidence is used in the court. Most of the applications sought to introduce more than one type of questioning or evidence. Some applications were very lengthy, seeking a range of different kinds of evidence. It was not uncommon for applications to seek to introduce the complainers' (alleged) past sexual behaviour with the accused, as well as with someone else, and also seek to ask questions relating to general character. Defence interviewees referred to this as a "belt and braces" or "scatter gun" approach to try to ensure that at least some evidence or questioning will be allowed.

Table 4.3 Nature of questioning sought in all s.275 applications made in transcribed and attended trials

Nature of questioning sought

Proportion of all
evidence sought

%

Past sexual history with accused

16

Non-sexual past history with accused

3

Behaviour with accused on/around same occasion

14

Sexual behaviour with/in presence of a third party on same occasion

4

Complainer's current relationship status

4

Sexual history of complainer (other than with accused)

20

Sexual character of complainer

4

General character of complainer

24

Behaviour of complainer after offence

11

Total

100

Note: Percentages refer to overall proportion of questioning sought across all 47 applications in the 32 trials. Most applications sought to introduce different types of questioning.

4.39 Evidence or questioning concerning the character of the complainer was a common feature in applications, accounting for approximately a quarter of all evidence sought (24%). This included questioning concerning the complainer's (alleged) mental instability, depression, dishonesty (such as previous convictions or arrests, working and claiming unemployment benefit, committing benefit fraud, making fraudulent claims to the Criminal Injury Compensation Board, lying about age, and propensity for making up stories, including unproven allegations of sexual assault). Very commonly the character evidence that is being sought concerned the complainer's use of alcohol or drugs in the past and/or at or around the time of the alleged offence.

4.40 Questioning on the complainer's sexual history other than a past relationship with the accused was also relatively common (20% of all evidence sought). This included questioning and evidence about the extent of the complainer's previous sexual history, sexual practices (such as use of sex aids), virginity, contraceptive history and prostitution.

4.41 Evidence of the complainer's past history with the accused was also common (19%). For the most part this was past sexual history with the accused, but in some cases this concerned past non-sexual behaviour between the complainer and accused, in particular arguments, "fallings-out" and "bad" feeling, either in the past or around the time of the alleged offence.

4.42 Evidence concerning behaviour with the accused on or around the same occasion of the alleged offence included: the complainer's willingness to go somewhere alone with the accused (e.g. to his home, in a taxi with him, to a party); giving him a phone number or address; allegedly showing "sexual interest" in him (e.g. provocative dancing, sensual posturing, kissing, cuddling, showing breasts, unzipping accused's trousers); or making sexually explicit remarks.

4.43 For the most part, evidence concerning behaviour with someone else on or around the same occasion as the alleged offence concerned sexual contact, but also included "suggestive dancing" with, or showing sexual interest in another person.

4.44 Questions about the behaviour of the complainer after the offence included: showing no visible signs of distress; refusal/unwillingness to report matter to the police or undergo a medical examination; maintaining contact with accused (e.g. continuing to live in same house as accused despite having own home, allowing accused to look after children, giving gifts to accused, and/or writing to accused); withdrawal of allegation; and complainer's alleged sexual behaviour after the alleged incidents (e.g. masturbation, touching other boys, looking at older men).

4.45 When considering the distribution of types of questioning introduced by application, note that several of the categories of questions would not have featured in applications prior to the 2002 Act. This is the result of the wider scope of the legislation. This includes the general character of the complainer (24%), non-sexual past history with accused (3%), complainer's current relationship status (4%) and behaviour of complainer after offence (11%). To introduce behaviour with accused on or around the same occasion (14%) of the offence would have required an application under the 1995 Act only if it were explicitly sexual behaviour and sexual behaviour that was not part of the subject matter of the charge. In other words, between two fifths (42%) and a half (56%) of the questioning sought in applications concerned matters which complainers were certainly exposed to prior to the 2002 Act, but which were never or rarely the subject of applications. It can safely be said, therefore, that at least 40% of the questioning would not previously have required an application.

4.46 The research findings in relation to both the volume and the level of detail concerning the questioning sought in applications runs contrary to both the intentions of the legislation, and the expectations of the reformers. It has resulted in neither a decrease in the use of sexual history and character evidence overall, nor a tighter focus on the type of questioning that is allowed. Paradoxically, the requirement of making a written application goes some way to facilitate the introduction of a wider range of evidence and a greater level of detail of questioning than occurred prior to the 2002 Act.

Crown only applications

4.47 There were 4 cases in which only the Crown made an application (Crown-only applications) in the 32 trials examined in detail. Given the very small number of such instances, it is difficult to draw any meaningful conclusions, and so these cases should be considered illustrative rather than representative. Interviews with practitioners suggested that, by and large, the evidence sought in Crown applications concerned the sexual history of the complainer, rather than character evidence, and was introduced because it was context needed by the jury to make sense of events. This could apply, for example, to evidence of past sexual relationships between the complainer and accused and evidence that the complainer was working in prostitution at or around the time of the alleged offence. One of the Advocates Depute interviewed explained this general view:

"Quite often we get allegations of rape and the parties have been involved in a sexual relationship in the past and it clearly makes sense for us to actually bring that context out." ( AD 2)

4.48 For the most part, Crown applications sought to introduce evidence to assist in setting the context for the alleged assault, as Judge 4 said:

"Sometimes I think Crown make applications that are, that require to be refused … in most cases the Crown are leading evidence which is essential for the purpose of leading the evidence, for example, in the case of a rape of a prostitute. In a case like that it's essential for them to be able to lead that. … But I've had other cases where the Crown have made applications that I've refused." (Judge 4)

4.49 Whilst not backed up by the 4 cases with Crown only applications examined here, a small number of practitioners did however suggest that sexual history evidence introduced by the Crown was not always restricted to that which was essential to the narrative of events.

4.50 In 3 of the Crown-only applications the Crown argued the proposed questioning was a necessary context for the narrative of events or other essential evidence. Of the 4 Crown-only applications, 3 involved a single rape charge; the fourth case involved one female and 2 young male complainers and charges of lewd, indecent and libidinous practices, along with several charges of a non-sexual nature.

4.51 In the latter case (078) the nature of evidence sought was in respect of one of the male complainer's sexual history. The complainer was 4 years old at the time of the first indicted offence, and aged 9 years at trial. The evidence sought of his precocious sexual behaviour - masturbation; being seen to look at older men; and having been caught by a teacher in the toilets with 2 other boys - was said to be relevant for indicating the circumstances of the complainer's foster mother's enquiries which led to the disclosure of the sexual offences. As discussed in the next chapter, this application was regarded as an unnecessary "voyage of discovery" by the Defence and refused by the court.

4.52 In one of the rape cases in which a Crown application was granted, the evidence sought was that the complainer and accused had a long-term relationship, and had borne a child together. In a second rape case, the Crown sought to introduce evidence that the complainer was not a virgin before the offence. The accused's defence was one of consent and the Prosecution argued that out of fairness to the accused it was necessary to lead evidence to show that the ruptured hymen of the complainer referred to in the medical report could not be attributed to the events which were the subject matter of the charge: "It is to lead evidence, out of fairness to the Defence, there is a background here which gives a possible explanation for certain medical findings and that is the only basis upon which this application has been brought." This case involved previous analogous convictions by the accused and is discussed further in Chapter Six. In one case, the third rape case, the Crown sought to introduce evidence relevant to the credibility of the complainer. Rather than seeking to introduce sexual history evidence, the application sought to introduce evidence concerning a depressive illness, in order to demonstrate that despite this, she was a credible and reliable witness with adequate capacity to recollect the events in question.

The nature of any questioning proposed

4.53 This part of the applications tends to be brief. Usually, it is simply stated from whom the evidence sought is to be elicited (overwhelmingly this is the complainer), but occasionally it is to be elicited from other witnesses in the trial.

4.54 Two Defence practitioners interviewed said they eschew specific lines of questioning, preferring instead to keep matters a little more general, as the following excerpt shows:

"The questions that I'm going to ask the complainer are quite general. I won't list specific questions that I'm going to ask her but it's questions of a nature which will elicit the information that we require to have brought out in evidence. That of course ties you to specific areas, but there's nothing stopping you from making a fresh application further down the line at any stage." (Defence 1)

4.55 A small number of applications did provide specific questions, as the following examples show:

  • "To elicit whether complainer engaged in work as prostitute immediately after being with accused and whether complainer was then robbed by a client."
  • "To ask complainer whether she was dressed only in underwear when she caused a member of the public to telephone police."
  • "To ask the complainer if she was victim of assault immediately prior to the incident and if she stole drugs from her assailant."
  • "To question the complainer as to her motive in seeking prescription of contraceptive pill."

Issues at trial to which evidence is considered relevant

4.56 Under the 1995 Act reasons for questioning or introducing evidence were not always provided by Defence nor sought by the court, because the legislation did not specify this as a requirement. On the basis of the discussion that preceded a decision on an application by the court, the baseline study estimated that the key issues were as follows, where the numbers in brackets refer to the number of (verbal) applications in which these issues were referred to:

  • Consent or mistaken-belief-in-consent (20);
  • Credibility of complainer (35);
  • To suggest or show motive for false allegation (10); and,
  • Alternative explanation for physical or forensic evidence (5)

4.57 In the current study, written applications detail the issues at trial to which the evidence or questioning sought was to be considered relevant. Typically, these issues were: consent and/or the complainer's character or predisposition, which included the credibility and reliability of the complainer; the complainer's character; predisposition towards sexual behaviour on the same occasion as the offence; mental state as an alternative explanation for distress; the complainer's lifestyle; and motivations for false allegation.

4.58 Consent was cited as an issue in two fifths of the 32 application cases, and character or predisposition was cited as an issue in two fifths of the cases. In just over a tenth of cases (12%) medical or forensic evidence was cited. This included the evidential significance of injuries, and medical evidence of a disrupted hymen.

4.59 A small proportion of cases (5%) cited either the credibility or the guilt of the accused as the issue in the trial to which the evidence or questioning sought was relevant.

The reasons why the evidence is considered relevant to the issues

4.60 This section of the application also tends to be rather brief, although a wide range of reasons was put forward (see Appendix 4). In the 32 trials, a single reason was put forward in a third of cases, with the majority involving 2 to 6 reasons why the evidence was considered relevant to the issues. Some were fairly specific, linking the evidence sought, the nature of the questioning and the issues at trial together. Others were much more general and most commonly, consent, credibility and reliability of the complainer, past sexual relations between the complainer and accused, and to demonstrate motive for false allegation.

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

4.61 As stated earlier, the written text in the last sections of applications often repeats the text of earlier sections. There is much overlap, particularly in the sections that list issues, reasons, and inferences to be drawn from the evidence or questioning sought.

4.62 In terms of what is written under the heading of "inferences", most commonly, this was again consent, credibility, complainer's character, alternative explanation and motivation and reasons for false allegation (e.g. complainer sought to conceal true nature of her relationship with accused; jealousy; afraid partner would find out; to gain sympathy and become the centre of attention).

Information sharing and the effect of disclosure on s.275 applications

4.63 Interviewees held different views on the extent to which they might discuss s.275 applications with the other party prior to lodging the applications. As one Defence agent said:

"Absolutely, I'd speak to the Crown. It might not be in advance because sometimes you don't have an Advocate Depute allocated. It might just be in the morning of the preliminary hearing."

Researcher: "You'd discuss the substantive contents?"

"Yes, and obviously if the Crown are going to make an application, if you've identified something for example in the transcript, then you might say "Is the Crown's position that they're going to make the application?" in which case you might not need to do yours." (Defence 1)

4.64 Similarly, the Advocates Depute interviewed spoke positively of information sharing with regard to s.275 applications:

"Advocates Depute and Defence Counsel talk to each other a lot and if I receive a s.275 application from the Defence, it's very probable that I will get in touch with the Defence Counsel and say "Right, I've had a look at your application, I'm quite happy with paragraphs 3, 4 and 5 but one and 2, I'm not happy with and this is the reason why I'm not happy with them." And we can discuss these and it may be that they'll decide "Right, okay, we'll not insist on these paragraphs or, if we amend it, would that make a difference?" " ( AD 2)

"Having this mechanism in place whereby in the normal scheme of things these matters should be flagged up, discussed and disputed if necessary at the earliest possible stage is a good thing." ( AD 5)

"If I can get a position which is satisfactory to me hammered out with the Defence in advance I'm comfortable." ( AD 1)

4.65 One issue raised by 2 Advocates Depute concerns the effect of disclosure on speculative "fishing expeditions" by the Defence in order to inform the contents of an s.275 application. Both referred to instances of the Defence requesting the complainer's past medical information:

"With disclosure these days, we are quite often met with requests for medical records, and what I'm hearing at preliminary hearings [from Defence] is that we need the medical records because that may lead, in turn, to an s.275 application. …. And generally our position is no. We don't consent to that. We will not produce them because, well, for a number of reasons, one we don't have them; 2, the victim has a right under Article 8 to privacy and;3, the medical records, if you get them in their entirety, will contain things that are of no relevance whatsoever and you're indulging in a fishing exercise." ( AD 2)

"What's happening, and this troubles me very greatly, is that some Counsel more than others are very keen to have access to the medical records of the victim and the social work records of the victim. … I refuse absolutely to use the Crown's powers to seize social work or medical records, unless I actually need them to prove the case, and insist that they make an Application to the court to recover these records so that the process is intimated to the complainer who can vindicate her position, and make the Judge take a decision. That's about as far as I can take it. And what we're getting is fairly wide ranging enquiry into the past with a view to promoting an s.275 Application, and where's that coming from? Why has that got any relevance?" ( AD 1)

Informing the complainer about s.275 applications

4.66 Judges noted that they did not know whether the Crown sought to, or had the time to, inform the complainer following notification of an s.275 application.

4.67 Interviews with Advocates Depute indicated that, following the submission of a defence application, they do tend to try to ascertain the complainer's position with regard to the evidence sought, for 2 main reasons. First, because it may inform the way in which the Crown deal with the defence application and, second, because of the high incidence of successful applications, the questioning or evidence sought will almost inevitably come up in trial. Seeking to ascertain the position of the complainer on particular matters that are the subject of a defence application is not necessarily the same as informing the complainer that an application has been made. None of the complainers interviewed in this research were aware of whether or not an application had been made in the cases in which they were involved. Interviewees said that whilst they would seek to have the subject of the application raised with the complainer to ascertain her position, there was a need to exercise care in the level of detail provided to the complainer to avoid the risk of improperly influencing the complainer's answers.

"One thing that we do if the application is raising issues that we haven't known about from the precognition, is get the precognoscer to ask the complainer just what the story is, and what's being said that mattered in the past. Not what her attitude is to it being allowed in evidence, but tell us what else has happened. Tell us your side of it."

Researcher: "And would that involve making the complainer aware of the fact that there is an Application?"

"It would depend on the practice of the individual precognoscer. What we would do is say (to the precognoscer) "the Defence are now saying this, can you find out what the complainer says about it?" If I were in receipt of such an instruction I suppose I would get the complainer in or "phone her and say, "We're being told this" - I wouldn't explain how or in what context - "can you tell me about that"? ……It would be to try and avoid influencing the complainer in her answer that I would do it that way." ( AD 1)

"Quite often in these applications they contain information like Defence witness so and so says that the complainer did a, b, c and d so clearly you want to go back to the complainer to find out, "Did you do a, b, c and d? Is there any truth in that?" It's really an extension of the precognition process."( AD 2)

4.69 The Defence interviewees believed that the pre-trial submission of s.275 applications did offer the Crown the opportunity to inform the complainer that particular evidence or questioning may be led in the trial. Two Defence interviewees were generally rather wary of the effect on the defence case of communication between the Crown and the complainer on the subject of an s.275 application:

"The detail we have to provide for the applications is horrendous and I take the view that a lot of is unnecessary and unfair. We are required to disclose so much of the Defence now. The Crown have the opportunity and are taking the opportunity to question their witnesses further and you can definitely see that complainers have had questions put to them and have come with their answers prepared .. They already know the line you are going down." (Defence 5)

"You have to disclose very fully what your line is going to be, the purpose of your questioning, what you're seeking to elicit and again there's sometimes a wee reservation in you to say well you know, this is setting out my whole case in paper beforehand and that's not the way our system works." (Defence 2)

4.70 The question of informing the complainer about an application by the Defence was considered in the COPFS Review of the Investigation and Prosecution of Sexual Offences (2006). The Report concluded that where the Crown receives notification of a Defence application, then Victim Information and Advice ( VIA) should advise the victim accordingly. This is a positive recommendation which should go some way to ensuring that complainers are informed about the likelihood of questioning on sexual history and character.

Chapter Summary

4.71 This chapter has focused on how s.275 applications are made, and the details of how the process operates.

4.72 The majority of applications were made by the Defence, although Crown applications featured in one quarter of application trials. Defence practitioners interviewed sought to establish at an early stage in sexual offence cases, particularly rape cases, whether any line of questioning or evidence requiring a s.275 application could be used to attack the credibility of the complainer or to otherwise have a bearing on the issue of consent, by actively exploring whether there were grounds for such an application from the point of first interview with their client.

4.73 Scrutiny of written s.275 applications revealed questioning about a wide range of issues, at least 40% of which concerned matters that were likely to have been asked without an application prior to the 2005 Act. Questions that would previously have required an application - past sexual history with the accused, other forms of sexual history, sexual character evidence and sexual behaviour with others around the same occasion as the charge - made up 44 percent of the proposed questioning. Twenty four percent of the proposed questioning concerned the character of the complainer. The reasons given for the proposed questioning were its relevance to the issue of consent, and the credibility of the complainer and sometimes, more specifically, to the complainer's character and motivation or reasons for false allegation or to offer alternative explanations to particular events.

4.74 Crown applications were typically made to introduce sexual history evidence that was required to enable a jury to make sense of subsequent evidence or to provide them with context for the alleged events.

4.75 Exception provisions are rarely specified, and the Defence tend to take a "belt and braces" or "scatter-gun" approach to the contents of applications, in order to find a route that the court will accept for the evidence or questioning to be allowed.

4.76 Advance notice of an s.275 application, like the advance notice of a defence of consent, was not typically translated by the Crown into explicit advanced warning to the complainer. One reason for this is that the provision of detailed information to the complainer could make the Crown case vulnerable to allegations of coaching. Such concerns were echoed by the Defence who expressed similar concern over the prospect of the Crown speaking to the complainer about the content of an application. However, it is standard practice for the Crown to re-precognosce a complainer to get "her side of the story" concerning any emergent events or issues raised in a defence application.