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Chapter Five: Deciding s.275 Applications

The Decision-Making Process

5.1 This chapter examines the process of deciding applications in order to address how the legislation is being applied in practice. The chapter examines the position taken by the other party in relation to s.275 applications, and presents information on the approach of the court in weighing up the probative value and determining the relevance of the questioning or evidence sought. The chapter also presents data on the point in the process when applications are decided, and examines the reasons why some s.275 applications are continued across several hearings before a decision on whether to allow the evidence is reached.

5.2 Like the previous chapter, this chapter draws on data from the 32 trials containing applications that were studied in detail. It uses the transcripts of the taped court proceedings and the associated paperwork relating to the preliminary hearings where s.275 applications were discussed and decided.

5.3 The chapter also draws on the interviews undertaken with the legal practitioners, in order to present their views on the process of deciding applications, and their perceptions of the challenges in determining relevance and admissibility of evidence sought to be admitted. Like the previous chapter, this chapter primarily concerns use and interpretation of the provisions of the 2002 Act during the pre-trial stage, although it does also include discussion of those applications which were lodged and/or decided at, and during, the trial itself.

5.4 A notable difference between the 1995 Act and the 2002 Act is that under the latter the court has to determine the relevance of the proposed evidence of 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.

Prior agreement between the parties on contents of s.275 applications

5.5 At the preliminary hearing, the party making the application starts proceedings by addressing the court on the contents of the written application. Thereafter, the other party will be given an opportunity by the court to give a view. When the other party is in agreement, application hearings are then generally brief. In many cases, the Defence simply informed the court that the Crown was not opposing the application. In many, but not all cases, once it was established that there were no objections from the other party, the application was granted by the court "for the reasons stated therein."

5.6 Bearing in mind that fact that the Defence use a "belt and braces" approach to applications, then, there are likely to be cases in which the Crown will not oppose a Defence application.

5.7 The following extract (from case 236), in which both the Crown and Defence submitted an application to question the complainer about her prostitution, illustrates the brevity of the type of exchange that often occurs when the parties agree:

Judge: "Right. Now I read your s.275 application, Advocate Depute, and the Defence s.275 application in this case. Is there any opposition to either of them?"

Defence: "No my Lord."

AD: "There's no opposition my Lord from the Crown to the Defence application."

Judge: "Well, I'll grant both s.275 applications for the reasons therein stated."

5.8 Agreement that evidence should be introduced does not, of course, necessarily mean agreement concerning the interpretation of that evidence. The agreement between Crown and Defence in case 236 reflected very different reasons for seeking to ask about prostitution. The Crown referred to enabling the complainer to give her evidence in "a full and credible manner as to the nature of her movements, actions and line of work on the date libelled". The inferences the Crown wished to draw from the questioning were listed as "employment as prostitute does not mean the complainer consented to the conduct in the charge or is not a credible and reliable witness". The Defence referred to relevance of the questioning to the central issue of consent and credibility and reliability of the complainer, giving rise to a reasonable doubt that the complainer was a rape victim and seeking the inference that the complainer consented.

5.9 In some cases (039, 188, 237, 235) it was explicitly stated at the preliminary hearing that the parties had discussed and reached agreement on the nature of evidence sought in s.275 applications prior to the preliminary hearing.

5.10 In case 188, involving a series of sexual offences alleged to have been committed against 2 complainers by their father, the Crown questioned whether an application was strictly necessary and made no objection to a delay requested by the Defence as to seek information from a foreign police force relevant to their application. The Defence application sought to introduce various pieces of evidence advanced as casting doubt on the credibility of one complainer: previous claimed reports of sexual abuse to teachers during her childhood, which the Defence sought to rebut by calling the teachers as witnesses; a previous report of alleged rape by the complainer against the accused when overseas, which the application said was not treated seriously by the relevant police force; and various non-sexual exchanges between the complainer and her father, which the Defence argued showed a degree of trust and friendliness inconsistent with the alleged charges. The application was decided at a second preliminary hearing where it was granted in the absence of opposition by the Crown.

5.11 Interviews with Advocates Depute revealed that they do try to agree applications with the Defence in advance wherever possible. For example, AD 1 described a successful negotiation leading to agreement:

"I conducted a trial … in which the victim had a 20 year history of … mental disorder, the nature of it fluctuated. I … spoke to Counsel, because they'd put in a s.275 which sought to narrate her whole medical history from the time she was first diagnosed, including her suicide attempt …. And what I said to … the Counsel then instructed was, "Look. Is this really necessary"?" And we agreed that the initial diagnosis was going to be relevant, because the Defence was going to be that there was a good deal of fantasy involved. We agreed that the last couple of years of history would be relevant, under the head of "a condition to which she was subject". And that because there was material in the medical records that suggested that this lady had been in the habit of wandering around … scarcely dressed, shouting invitations to men, beckoning men in. So one could see that in the context of a case in which the accused said that he was the subject of such an invitation, there was relevance in that. But [the Defence Counsel] was willing to take out the intervening 18 years of stuff." ( AD 1)

5.12 In interview, Advocates Depute acknowledged that they often share the Defence view that the evidence or questioning sought is relevant, and should be heard by the jury:

"I think it is proper of the Crown not to object if it feels that information is thrown up which, if true, the jury should know to be able to decide the case. I think it may be a sign that the section is being effective and that the applications which are … bad applications are just not being made anymore. I don't think it's the role of the Crown to oppose every Defence s.275 [s.275 application]. I certainly don't see that as my role and quite often I read one and think, this is suitable." ( AD 3)

Challenging Applications

Crown opposition to Defence s.275 applications

5.13 Objections to the Defence application were raised by the Crown in 10 of the 32 applications studied in detail. ²⁷ In all instances the Advocate Depute questioned the relevance of the evidence sought to be admitted to the issues at trial. Most challenges by the Advocate Depute also specifically raised the issue of the protection of the "dignity and privacy of the complainer", and a small number referred to a lack of specification in relation to the evidence or questioning sought by the Defence.

5.14 Notably, Crown challenges to Defence applications were more likely to be made in relation to character evidence (in particular where the nature of the evidence sought concerned dishonesty). For example, in case 007 which involved 2 young complainers (one female and one male), the Defence sought to elicit character evidence from Defence witnesses, and a complainer's former teachers, in relation to one complainer's alleged predisposition to make up stories:

Defence: "This is evidence that relates to behaviour referred to in s.275 (1a), behaviour demonstrating the complainers character. It also demonstrates a predisposition to which he has been subject and indeed still is. That the occurrences of that behaviour are in fact relevant in terms of s.275(1b) to establishing whether the accused is guilty of the offence with which he is charged and I also say that given that this case centres around the credibility and reliability of only 2 complainers, the Crown case cannot stand with just one complainer being accepted as credible and reliable but 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."

5.15 The Advocate Depute's concern was that the (character) evidence sought to be elicited was to be corroborated by school teachers (the Defence witnesses concerned) who were not professional psychologists, and so was "fundamentally inadmissible." Following a lengthy debate, the Judge agreed with the Advocate Depute and refused to allow the application on the basis of the inadmissibility of evidence from non-professional witnesses:

Judge: "Plainly the evidence on one view of [the teachers] might be thought to be significant however it has to be remembered that credibility and reliability in these areas is fundamentally a matter for the jury and in order to approach that topic what is required is objective evidence of a pathological or medical condition or possibly the fact that regard may be had to an objective reference from the witness that can then be examined along the same lines to see whether such a condition exists… It may be possible to acquire that… I cannot grant the application in its present terms."

5.16 In case 076, which involved a very lengthy application by the Defence, part of which sought to question the complainer on her investigation for employee theft, the Advocate Depute challenged that particular aspect on the grounds that such evidence was not relevant to determining the guilt of the accused. The Judge repeatedly asked the Defence to explain the relevance of the fact that a complaint had been made, saying that it was not usual to go into past character unless there had been a conviction. The Defence replied that it was "a material point" and would go towards the complainer's reliability and credibility." The Judge was not convinced, and allowed only part of the application, disallowing all references to the investigations for theft.

5.17 In a third case, 231, the questioning sought to be admitted by the Defence, that X and Y, 2 of the 4 female complainers "are persons who are engaged in a sexual relationship" was considered too imprecise by the Crown who also disputed the claimed relevance to the credibility of the witnesses. The Judge upheld both critiques. The application in its original form was disallowed, although the Judge also left open the possibility that the Defence might return to the issue:

Judge: "There does seem to me to be 2 major problems. First of all a possible lack of specification in the application itself, in the event because in view of the explanation tendered it's not immediately clear why a close relationship, which included a sexual relationship, will reflect on the credibility of the witnesses, and secondly the existence of the close relationship, although it would justify the kind of questioning which seems to me to be sought in this case, and the factor that a sexual relationship appears to be something to which the act specifically is designed, rightly or wrongly, to give protection. So at this stage I'm not disposed to grant the application. However, that clearly is unsatisfactory in some respects because it doesn't resolve the matter and it will be perhaps either for a further application or a matter for enquiry at the time of the trial as to what lengths cross-examination can possibly go in exploring the relationship between the 2 complainers in order to cast doubt on their credibility and reliability."

5.18 Interviews with Advocates Depute indicated that what the Crown are considering when reading the Defence application is whether it is too imprecise or lacking in detail in terms of the requirements of the provisions, or the overall relevance is weak or unsubstantiated:

"I look at the application, I look at each paragraph within it to decide is that something that would be admissible at common law, therefore is a s.275 application necessary? Is what is contained within the individual paragraphs specific and relevant? Is it caught by s.274 and are the 3 requirements in terms of s.275 satisfied? And that's the process I go through with every paragraph to decide whether or not I'm going to oppose that paragraph or bits of the paragraph or just say yes, I agree with that." ( AD 2)

Defence opposition to s.275 applications by the Crown

5.19 Among the sample of 32 cases, there were 5 cases involving s.275 applications by both parties, and 4 cases in which the application was made only by the Crown. As stated earlier, Crown applications tended to focus on sexual history rather than character evidence, ²⁸ and typically were allowed.

5.20 Of all the Crown applications, just one was refused by the court and in this case the Defence objected to the nature of the evidence that the Crown wished to introduce. Case 078 involved a string of charges including 2 counts of lewd and libidinous practices towards a very young boy (aged 6 at trial). The application sought to introduce evidence about the boy's behaviour after the offence, which concerned masturbation, being seen to "look at" older men, and having been found by a teacher in the school toilets with 2 other boys. Whilst the Crown's reason for wishing to introduce this evidence could have been to lead evidence of the events which led to the disclosure of the allegation, this was not specified in the application. The Defence objected to the application:

Defence: "These sections are there to protect complainers to see that a voyage of discovery is not made into their sexual behaviour either before or after the event and what the Crown in this is attempting to do is to lead evidence relating to sexual episodes affecting a 6 year old boy after the event. Now in my respectful submission, that is not a proper use of this section. To ask a 6 year old boy about his private sexual habits could do perhaps irretrievable damage to his psyche, we're not in a position to know."

5.21 Although the Defence objection was on grounds of hearsay, inadmissibility and protecting the dignity and privacy of the complainer from a "voyage of discovery into his sexual behaviour", the discussion that ensued primarily focused on the admissibility of such evidence. After lengthy debate, the Judge decided:

Judge: "Gentlemen I have come to the view that the application on behalf of the Crown is to be refused. It seems to me that the evidence which is sought to be led is inadmissible on the ground that it is hearsay and not de recenti when the best evidence will be the evidence of the children in the witness box. … I have come to the view that the totality of the material contained in the application should not be allowed to be the subject of application and I refuse the application."

5.22 No challenges were raised in any of the other Crown applications, however in one (209), the Defence was unhappy about the wording in respect of the "inferences which the court should draw from the evidence" which were that, despite a psychotic illness the complainer was credible and reliable. The Defence supported the introduction of the evidence sought by the Crown but not the inference that the Crown indicated that the court should draw from the evidence. After a brief discussion the Judge suggested that the Defence was "nitpicking" and granted the application. ²⁹

Deciding s.275 applications: the view of the court

5.23 Judges interviewed were very clear that it was their duty to ensure that the legislation was observed and would pay very careful attention to the wording of the legislation when deciding an application. Judges were also aware of exercising a degree of discretion in interpreting the legislation.

5.24 Some Judges observed that carrying out their duties had involved them in reminding the Crown of their responsibilities under the 2002 legislation. This included reminding the Crown of the need to make an application. When commenting on the extension of the requirement to make an application to the Crown, one Judge said, "if you don't do that, you have no judicial control and the Crown will be asked by the Defence to lead evidence of something and they'll do it. That's what actually happens. So I think yes, judicial control over these matters is important" (Judge 2).

5.25 It has already been emphasised that unsuccessful s.275 applications were rare; most applications were allowed in full or in part. Applications in which there was no disagreement were often allowed in full with little discussion. From the cases examined, it appears that Judges were more likely to restrict or disallow Defence s.275 applications where the Advocate Depute registered opposition.

5.26 There were, however, 3 cases where the Crown did not oppose the Defence application but the Judge, nevertheless, disallowed or restricted the extent of the proposed questioning. In the following example (case 204) the Defence sought to introduce evidence that the complainer had asked the accused for payment for sex on a previous occasion, and that she claimed unemployment benefits whilst working. The Judge expressed some surprise that the Advocate Depute was not objecting to the application, as he or she considered it to be very loosely phrased, and not at all relevant to the determination of guilt. The Judge subsequently restricted the parameters of the application in the following way:

Judge: "I will allow the s.275 application with the exception of the final part of paragraph [This paragraph stated: That throughout the period August 2002 to January 2004, the complainer was working as a cleaner whilst also claiming unemployment benefit. Around January 2004, the complainer was informed that her benefit was being suspended and she was required to repay sums claimed. Thereafter the parties continued to have intercourse fortnightly, but the complainer demanded £50 a week, which applicant gave her.]….. on the basis that I'm not satisfied that the requirements of s.275 are being made out in relation to that matter and in particular that these issues are irrelevant to proof of the charge and indeed that it would be in line with the provisions of the section in relation to the privacy and dignity of the complainer that these matters ought to be brought out in a trial of this sort."

5.27 In another case (211) both parties were seeking to introduce sexual activity, kissing and cuddling, between the complainer and the accused on the evening in question. The Defence also sought to put to the complainer that she was unwilling to tell the police about the alleged events and to ask "any other appropriate questions arising from examination in chief or cross exam" without objection from the Crown to this approach. However, the Judge refused this aspect of the application which the Defence then withdrew. As well as stating objection to this part of the application, the Judge expressed the view that the rest was required unnecessarily by the legislation:

Judge: "I wouldn't be happy about ….["any other appropriate questions arising from examination in chief or cross exam"]."

Defence: "In that case I'm happy to delete ["any other appropriate questions arising from examination in chief or cross exam"] from the application at this stage."

Judge: "It's just the extraordinary consequences of this Act that applications like this have to be made at all. But anyway, I certainly have no concern about them at all. What I'll do is grant both applications. … and the interlocutor will formally state in both cases that I'm doing that because I'm satisfied that all the matters in s.275 1.(a),(b) and (c) are satisfied and that these questions relate to the question of consent and the credibility of the complainer."

5.28 In another case (168) in which the Judge disallowed the Defence application despite the lack of objections from the Crown, the proposed questioning to the complainer concerned 2 alleged previous attempts to kiss the accused on the lips, one around a year previously and one some 3 years previously. The Judge's reasons were as follows:

1. There was a lack of specification in respect of the alleged occurrences;

2. It was not clear that these demonstrate any predisposition of the complainer's character:

3. The latitude was too far separated from date of alleged offence; and,

4. The probative value of "the attempts to kiss" is unlikely to be significant or outweigh risk of prejudice to a proper administration of justice (case 168).

5.29 This application was re-submitted at a subsequent pre-trial hearing, but was again refused by the (different) Judge, who maintained that the application could only properly be considered at the trial, after the complainer's examination-in-chief, when the evidence regarding prior statements had been conveyed to the jury. After establishing that the Crown would have no objection to the application being raised after the complainer's examination-in-chief, the Judge refused the application, but said that as he would also be the trial Judge he would scan the evidence for the application in mind, and allow the Defence to raise it again at trial.

5.30 During interview, Judge 3 observed that there were instances in which he had disallowed applications, not because the evidence was to be prohibited, but because they were the result of the Defence not understanding the legislation, and making an s.275 application where none was required.

5.31 In the 32 trials studied in detail, there were a small number of cases in which the court expressed the view that the application was unnecessary. For example, in case 069, the Judge ruled that the Defence did not require an application in order to ask the complainer whether she was on the contraceptive pill or whether she had told the accused that she was on the pill. The Judge said:

"I can well understand the extreme caution that has to be exercised in these cases but equally, I do have a concern that we are now seeing s.275 applications asking for the court to approve questions that are really just ordinary questions that don't carry the problems that the Act is trying to meet. If you want to cross examine the complainer to the effect that she saidto him she was on the pill, I don't see that that involves suggesting to her that she was engaged in other sexual activity at or about that time."

5.32 As in the case (188), in which the Crown expressed doubt about the necessity of an application, discussed above, the doubt concerning the necessity of the application seems to reflect the lack of explicit sexual material in the questioning sought by the applicant. However, the wording of the legislation is designed to capture more than explicit sexual material and it is not clear whether another Judge would have taken this view.

Judicial views on the Crown's approach to Defence applications

5.33 During our interviews, Judges sometimes spontaneously offered their views on the approach taken by the Crown to Defence applications. Judge 1 complained that the application procedure rarely involved a proper debate, with the Crown often taking a neutral view, commenting that he sometimes says something about the inadequacy of this response. Judge 4 also recalled instances of explaining to the Crown the reasons why he disagreed with the Crown's lack of objection to Defence applications.

5.34 In contrast to this, however, when discussing applications at the preliminary hearing, some Judges still saw the position of the Crown as decisive. Judge 2, for example, indicated that the possibility of an appeal robbed the Judge of any ability to effectively object to Defence applications which were not opposed by the Crown:

"If you are faced with a situation in which you make a decision and you know it's capable of being appealed post trial, then your decision obviously is potentially going to jeopardise a conviction if it occurs, and if the Crown at the end of the day well, we're not supporting this conviction because we didn't oppose the s.275 application, that's going to be the end of the case. The Appeal Court are unlikely to support the trial Judge in the face of a concession from the Crown. They don't generally do that, although they can. The short answer is, if the Crown do not oppose these applications, and they often don't, the trial Judge is put in a very difficult position because he is potentially jeopardising the rape conviction in advance." (Judge 2)

The timing of s.275 applications

5.35 In a little over half (18) of the 32 trials with s.275 applications, a single application was made. Thirteen trials involved 2 applications, and one trial involved 3 separate applications, totalling 47 applications in all.

5.36 The timing of the applications are displayed in Table 5.1 which shows that 39 applications were lodged with the other party in advance of the trial. Most of these were decided by the court at one preliminary hearing, although several were continued to subsequent hearings before the court's final decision on the application was given.

5.37 All of the Crown applications were lodged pre-trial and, with very few exceptions, were decided at a preliminary hearing in advance of trial.

Table 5.1 s.275 applications by when application lodged (transcribed and attended trials)

Point in process when s.275 applications are decided

5.38 Table 5.1 showed that most applications were lodged pre-trial. Table 5.2 shows that of the 47 applications made, 33 were lodged pre-trial and decided at a preliminary hearing, 26 were decided in a single preliminary hearing and 7 continued over 2 to 6 subsequent hearings before the application was decided. Eight applications were decided at the start of the trial, and 2 were lodged and decided during the trial. In 4 applications, some aspects of the application were decided at a preliminary hearing, with other aspects only decided at the trial itself.

Table 5.2 Number of hearings involving s.275 applications by when applications decided (transcribed and attended trials)

5.39 Whilst, in the cases examined here, there were few instances of s.275 applications being revisited during trial, several Defence interviewees referred to the disadvantages of applications being decided in advance of a trial, without being able to see the "lie of the land" in terms of the witnesses and the progress of evidence. For example, one Defence practitioner said:

"The disadvantages are that you are restrained into particular corridors or boxes of cross examination and you are ever conscious of the fact that you have certain boundaries as to where you can and cannot go, and if something occurs to you - as it can - in the course of a trial or evidence does not come across as expected, in theory, one would have to interrupt the trial to put in a further application. There's also a tendency now to be - and I don't have any difficulty with the concept - to be overly complainer friendly and to take the views of the complainer before the over riding interests of justice, which would be paramount in any other trial. As I say, it puts rape and sexual offences into a different category." (Defence 4)

5.40 While Judges and prosecutors sometimes also acknowledged this difficulty, they were more likely to stress the advantages of deciding s.275 applications in advance of the trial.

5.41 Defence practitioners were also more likely to express disquiet that the Judge deciding the relevance of an s.275 application is almost certainly not the same person as the trial Judge. As Defence 1 said:

"But even cases where you think you have a very strong point which is …prohibited by s.274, you might get a Judge who is particularly brutal with applications and not give it to you and then that leaves you in the situation where you're coming before a trial Judge and the sense of the application is [relevant] - you can't put it forward again in the same terms, but you might still strongly feel that you ought to have been able to ask that question. But you're hampered - the trial Judge might even agree with you, because had it been him at a preliminary hearing he may well have granted it. That has happened to me." (Defence 1)

Continuations of applications beyond one preliminary hearing

5.42 There was a range of circumstances in which applications were continued over more than one preliminary hearing. Sometimes this was because it was not possible to have a full discussion of the application due to lack of time, or the applicant requested more time because the relevant information or evidence was unavailable. For example, in case 128, the Defence application was continued 3 times due to medical and telephone records being unavailable, before finally being decided at a fourth pre-trial hearing. In case 204, the Defence requested more time for preparation and their application was continued across 4 pre-trial hearings before being heard at the start of the trial. In case 188, the initial Defence s.275 application was withdrawn pending further information from foreign police authorities, and the trial postponed. This application was subsequently re-submitted and granted at a later preliminary hearing.

5.43 Another set of circumstances involved the applicant creating an opportunity to have a second chance, resubmitting an application or a part thereof after it had been partially or entirely refused by the court. From the 32 cases studied in detail, there were 2 examples of this occurring with Crown applications, and 5 examples of Defence applications. For example, in case 044 the Crown application sought to lead evidence that the (young) complainer had previously engaged in consensual sexual intercourse, thus explaining a disrupted hymen identified in the medical examination which the Prosecution did not seek to attribute to the alleged rape. This was deemed not to be specific enough by the Judge, since it did not specify the previous occurrence of consensual sexual intercourse ³⁰ and the application was withdrawn. This application was subsequently amended to offer a more precise date and resubmitted with "special cause shown" at a further hearing, where the application was then allowed.

5.44 In case 212, which involved an application by both parties, the questioning sought concerned kissing between the complainer and the accused on the evening in question and the possession and handling by the complainer of a condom. The Judge ruled that an application was not necessary with respect to these details since they concerned events "shortly before, at the same time as or shortly after the acts which form the subject matter of the charge". The applications were repeated and allowed at the start of the trial. The trial Judge, however, stated that: "It is not entirely clear to me that the evidence and questioning to which these applications relate is strictly speaking, struck at by the prohibition in s.274."

5.45 In 3 Defence applications continued beyond one preliminary hearing, the original application was partially or fully refused and then re-submitted in front of a different Judge. In case 007, already referred to in some detail earlier in this chapter, the application sought to lead evidence which questioned the credibility of a young complainer based on the report of a teacher which indicated that the child had a tendency to tell "elaborate lies". This was refused due to concern about the admissibility of evidence from teachers in relation to "a pathological or medical condition" . However, the Judge did grant leave to appeal this decision.

5.46 In an attempted rape case (234) the original Defence application, which sought to introduce evidence about the complainer's "confused sexuality" and challenge her claim that she had not had a sexual relationship, was refused outright by the court in a preliminary hearing. Leave to appeal this decision was also refused, although the Defence re-submitted the same application at the start of the trial to a different Judge. This was partially allowed in respect of the complainer's virginity, however a third attempt to submit during the trial was refused (See Appendix 3).

5.47 Similarly, in case 231 which involved 4 complainers, and several charges of rape and indecent assault, an application by the Defence to elicit that 2 of the complainers were involved in an "intimate lesbian relationship" and were, therefore, not credible or reliable witnesses, was refused at the initial preliminary hearing and resubmitted at a subsequent preliminary hearing, and again disallowed by the court.

Late applications and "special cause shown"

5.48 Seven applications were introduced for the first time at the start of the trial, that is, before any evidence was led. The second application in one trial (case 099) was lodged during the trial itself.

5.49 In all but one of the 8 applications the court accepted that there was "special cause shown" for the lodging of the late application and generally, lateness was not, in itself, a barrier to the success of an application as the Judge made clear in case 56:

Judge: "Well obviously I'll hear what (Defence) has got to say about the lateness of the application but unless persuaded otherwise I think you can take it that, if I take the view that its in the interests of justice to grant the application, on its merits then that in itself would seem to me to justify my considering it at this stage."

5.50 In case 117, the late Defence application consisted of a long list of the Defence narrative of events leading up to the alleged incident including, among the many details, alleged consensual sex between the complainer and the accused, prior to the subject matter of the charge. The Judge quickly agreed the application, noting that it was not opposed by the Crown, and commenting on the long and detailed list of proposed questioning, concluding "Well I've read it and I can't see that all of it would be likely to be asked or would need to be asked but I'll allow it to save time."

Practitioner's views about s.275 continuations

5.51 Discussion with interviewees about the shift from the verbal applications at trial that characterised the 1995 Act, to a process of written submissions at preliminary hearings, indicated a range of views and experiences concerning 2 procedural issues: the practice of continuing preliminary hearings across more than one pre-trial diet in order to allow more time for applications to be made in advance of the trial; and deferring decisions about applications from the pre-trial diet to the trial.

5.52 Interviewees held mixed views about the desirability of continuations of s.275 applications. Some Defence practitioners referred to the inevitability of continuations, resulting from the need to submit a written application in advance:

"The only reason for additional pre-trial procedure is if the case has not yet been prepared at preliminary hearing. Previously if it wasn't prepared, no one would have bothered with the s.275 application in advance and sought to postpone the trial in advance. If there was no trial, there was no need for the s.275 application. Following the High Court reforms, there is a mindset now that bits of paper are everything and one is completing a preliminary hearing form for the court. It will ask if there are to be any s.275 applications; it would be unusual to say yes there are but we're not sending it in at the moment. And it's almost a waste of resources of applications going in almost in skeletal form because the information is not there, simply so as the diet can be continued until all the information is available. And that is unnecessary." (Defence 4)

"Additional applications become necessary if further information becomes available. Obviously in a trial situation you have got all the information to hand then but if its being addressed in advance that's not the case. It's maybe a little artificial, you know, what we are doing just now, doing it in advance." (Defence 3)

5.53 Some Judges spoke of the practice of continuing preliminary hearings across more than one pre-trial diet in order to allow more time for applications to be made in advance of the trial, and deferring decisions about applications to the trial, as related issues. Judge 2 thought both stemmed from the general unwillingness of Judges to make decisions about the admissibility of evidence outside of the context of the trial:

"Deciding admissibility of evidence in advance of a trial is a relatively alien concept. … We're asking to decide matters of relevancy … in a vacuum; that's a problem for us. No question that that's a difficulty for us. That's not to say that the thing should not be dealt with in advance. …I think the idea that these things are dealt with in advance is a laudable one. … I know that a number of Counsel [ask] that these matters be continued to the trial diet and I know that a lot of my colleagues do that as … that as I understand it is contrary to the spirit of the Act. It is not what is intended. … I think you'll find that it's not infrequent for all sorts of different applications to be repeatedly continued from one preliminary hearing to another." (Judge 2).

5.55 Judge 4 had adopted a practical strategy which sought to address the difficulty of judging the admissibility of evidence prior to the context of the trial in which the detail of evidence unfolds. This Judge routinely read interview statements in advance of the trial, particularly police interviews with the complainer and the accused which were likely to flag up issues that might fall under the legislation and be the subject of applications. He was of the view that written applications assist in understanding beforehand the limits of the issue, because otherwise the Judge wouldn't know the scope of the material that the Defence sought to introduce:

"A lot of it will be in statements that they have rather than in anything that's lodged in court. The most that the court really ever, I would think, has a notion of beforehand is stuff that's in the Statement made by the accused to the police. … I think so far as Interview Statements in sexual offences cases, particularly rapes, I think most Judges do read those in advance. Because that can help the Judge identify whether there is a risk of a prohibition being broken, because the responsibility is on the Judge. …I do always read the Interview Statements in those kind of cases, because I think that's the only way I can tell in advance if there might be an issue. And sometimes the Crown and the Defence don't pick them up. Sometimes the Crown, particularly, are a bit relaxed about it, or perhaps just haven't taken enough care in looking through it. And you suddenly read something and you think you can't possibly allow that." (Judge 4).

5.56 Judge 3 was also concerned by the practice of continuing preliminary hearings across several pre-trial diets but saw this in terms of Judges responding to pressure from Defence Counsel for more time to prepare or consider whether to submit an application. He thought that the provisions caused both parties to give more detailed consideration as to what evidence could be elicited about the complainer's behaviour and character, from the complainer, the accused and, possibly, other witnesses in the case. Requests for continuations of preliminary hearings because the parties are not yet in a position to decide whether they are going to lodge an application, can have the unwelcome practical effect of delaying the start of a trial.

5.57 It seems unlikely that a Judge would allow hearings to be continued knowing that the Defence was conducting enquiries simply hoping to find sexual history or "bad character" evidence rather than having any specific reason for pursuing a line of enquiry. However, some Defence practitioners reported variation in the closeness of questioning by Judges about the nature of their enquiries and suggested that they were, on occasions, conducting general enquiries in the hope of finding something rather than following a specific line of enquiry.

5.58 In Chapter Four it was noted that some Advocates Depute were concerned about the practice of some Defence Counsel attempting to obtain past medical records or social work records of complainer's in sexual offence cases, as part of a "fishing expedition" to uncover character evidence that may inform a s.275 application:

"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. … But it means that whereas 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." ( AD 1).

5.59 While Judge 2 spoke against the practice of deferring decisions about an application to the trial, Judge 3 believed that matters were best left to the trial Judge if issues which would have to be revisited during the trial were involved. When asked to elaborate, Judge 3 referred to contested issues that would continue to "rumble on" or evidence involving events taking place within the hours leading up to the time of the alleged offence where excluding the prohibited evidence might cause difficulties with respect to admissible evidence:

". … in that event I think I would incline to the view that it's better to leave it to the trial Judge. And a lot may also depend on the attitude of the parties, you know. If they consent that it should be dealt with now or if they consent that it should be granted now that's one thing. If they are vehemently, if one side is vehemently opposing the other side then and you can see the issue rumbling on then I think I would, in that event be more inclined to defer it." (Judge 3)

Weighing Relevance and Prejudice

5.60 As the application cases indicate, there was some variation in the extent to which Judges questioned the parties making applications about the factual basis for the application. This has some bearing on Judges' views about weighing the probative value and relevance of evidence to the key issues in the case against the possible prejudice that it might cause to the proper administration of justice, including harm to the privacy and dignity of the complainer.

5.61 The interviews with Judges were informative in this regard. Judge 3 was not inclined to question the nature of the evidence underpinning an application, but rather suggested that if evidence is relevant, then there is typically little room for its exclusion, even if the probative value is weak.

"You can only proceed upon the basis that the Defence have, are in a position to elicit evidence of the factual matters set out in the application. And if they are in a position to elicit that evidence then you must proceed on the basis that the, a jury could accept the evidence as being credible and reliable evidence. Or at least evidence which causes them to have a reasonable doubt. … if you thought about it yourself you might take a view that it is extremely unlikely that a jury would believe that evidence. But your own personal view as to credibility and reliability of it, I don't think would really come into it very much. It's more, its relationship to the, to the, the allegations and the charge and proximity and time obviously being a relevant consideration. And you've just got to go through the statutory scheme that's played out." (Judge 3)

5.62 Indeed, Judges generally had difficulty imagining situations in which the need to protect the dignity and privacy of the complainer would result in evidence of some relevance being excluded. Judge 1 noted that it was always going to be better to give the accused leeway even if it means embarrassing and upsetting the witness. Judge 4 thought that if the evidence was relevant to the reliability or credibility of the complainer then it was almost impossible to exclude that evidence. This was partly because of this Judge's reading of what he referred to as "the slight dichotomy" between the restrictions under s.274 and the exceptions to those restrictions under s.275 of the legislation. In particular, he thought that s.274 (1) (c) ³¹ was very wide, potentially "covering everything:"

" And then you go to the provisions of s.275 it says "the court is satisfied that the question will relate only to specific occurrences demonstrating the complainer's character or any condition or disposition to which the complainer is or has been subject, the occurrence or those occurrences are relevant to establish whether the accused is guilty of the offence with which he's charged, and the probative value of the evidence sought to be admitted or elicited is significantly likely to outweigh any prejudice." … So once you've got something relating to the question of whether she's a credible and reliable witness I suppose on one view means that automatically the probative value of it is significant and likely to outweigh any risk of prejudice to the proper administration of justice." (Judge 4)

5.63 Note, however, that whilst most maintained that credibility is central to probative value, Judges did not generally accept that any issue of relevance to the complainer's credibility and reliability should be admitted:

"I'd be disappointed in myself if I'd took the view that every fact in a life's occurrence that could have some bearing on complainer's credibility required to be admitted. That, I would have thought, to hold that view I think would be difficult to reconcile with the proper construction of s.275 (1) (c)." (Judge 3)

5.64 Judge 3 went on to complain that this aspect of the legislation was particularly and unnecessarily complicated and difficult to interpret, observing that "it's the sort of legislation where you have to go right back to the detail of it every time there is a contested application. And in particular you have to go to the definition of a proper administration of justice."

5.65 Judge 4 also thought this part of the legislation was problematic and may be drafted in such a way as to contain a contradiction between sections s.274 and s.275 as noted above.

The relevance of a past sexual relationship between complainer and accused

5.66 All of the Judges interviewed would allow an application to establish a past sexual relationship between a complainer and an accused, accepting that this would normally be relevant background context that the jury would need to be able to understand the events. As Judge 1 put it, "in order to explain the reality or context of the whole transaction you have to go into some history. It would be ridiculous to keep that from the jury." When specifically asked whether evidence of a single sexual encounter a year or more ago should be admitted, most Judges thought there was some possible relevance. Judge 1, for example went on to suggest that "possibly the significance of the accused putting a hand on shoulder or arm round waist would be different. The jury needs to know to have context."

5.67 The possible relevance of the evidence to an honest belief in consent was spontaneously raised by Judge 4:

"I think it could be relevant to the question of whether he had a genuine belief, an honest belief rather in consent. Because on one view of it you think "well what relevance can that possibly have"? But because these things are so much a matter of degree, yes you could say if it's a situation where they haven't seen each other during that period, it could go either way. If, since that time they had seen each other regularly and there had not been any further sexual encounters, then it might be less influential in forming a view that there might be consent. Whereas, if they hadn't seen each other for a year and on the last time there had been a sexual encounter, then it might be more likely to lead to the belief. I think it would be quite difficult for that to be kept out." (Judge 4)

5.68 Whilst some Judges stated that they would seek to limit questions or evidence, others added additional qualifications, for example, the need to check whether or not the issue was a matter of dispute between the Defence and the Crown, with greater wariness if it was disputed. Some would be less inclined to admit evidence that was many years previously.

5.69 Defence practitioners also maintained that previous sexual relations between the complainer and accused would almost always be relevant in a sexual offence case, as it is demonstrative of a predisposition to engage in sexual behaviour in the future.

"I think in order to give the jury a picture that these are people that have had a relationship, and are not just people who have just met on a first date; it's going to always be relevant because of the nature of the offence. It's about human interaction, and if they don't have that information to base what's going on in a specific incident, then they're not getting the full picture." (Defence 1).

5.70 However, some Defence practitioners were not optimistic that evidence about a single episode a number of years before would be allowed by the court, although they would be inclined to put in into an application.

5.71 Advocates Depute varied in their attitude to past sexual history between the complainer and the accused with some agreeing that it had some relevance and some denying this position. For example, AD 1 saw no relevance in a previous sexual encounter between a complainer and an accused a year previously, whereas AD 4 was more inclined to the view that this was relevant.

"In deciding the Lord Advocate's reference on rape, … the then Lord Justice General said explicitly, that a women is entitled to consent or not consent at any time, and her position may change differently from man to man, or with the same man from time to time. That's got to be right. So why does the fact that she was willing to have intercourse with him a year ago make a difference. …. I find it very difficult to see how leading evidence of previous sexual conduct actually bears on the question of whether or not there was consent on this occasion." ( AD 1)

"It's a difficult one because without any evidence of history then from a jury point of view these 2 are strangers and that might not accurately reflect what the situation was but of course the fact that they are not strangers doesn't mean there is some licence to have intercourse and that's why it would need to be very recent, it would need to be really part of a relationship almost as a course of conduct, an encounter a year before on a single occasion because they met after a disco or something and then something a year later I don't see as being relevant at all and wouldn't agree to that." ( AD 4)

The relevance of sexual behaviour between the complainer and third parties

5.72 On the issue of sexual behaviour with third parties, that is someone other than the accused, Judges gave examples of evidence that they would exclude and some that they would include. Sexual intercourse with a third party at the same time and place as the alleged incident was the most common example of evidence that should be admitted, but then it was generally acknowledged that this would not need a s.275 application because it would be allowed by the wording of the provision at s.274 (1) (c) .

5.73 Judge 3 further extended admissibility from the same place and time to include events leading up to the incident that were close in place and time:

"If you had a party and there was, it was going on for several hours and there was clear evidence that the complainer had been consent[ing] to have sex with various other people in other rooms and then I think in that event you would envisage it would be admitted." (Judge 3)

5.74 However, Judge 4 and Judge 2 would agree in excluding the following:

"If there's an allegation of rape happening in someone's flat and it's a rape by "A" and there's evidence or the proposed line is that she had sex with "B" in the pub an hour before, I would disallow that as wholly irrelevant. So what? Because that is exactly the kind of situation which, it's purely prejudicial material. It has no bearing on her credibility, the fact that she chooses to have sex with someone else an hour, a day, 2 days, a week, a month. I have disallowed that type of evidence." (Judge 2)

5.75 Defence practitioners interviewed considered that applications to introduce sexual history evidence with someone other than the accused were rare and would be considered irrelevant by the court unless, as Defence 3 put it, "you were to have a situation where a complainer was absolutely, outrageously promiscuous, you really can't from a practical point of view see how it's ever going to rear its head."

5.76 Sexual behaviour between the complainer and someone other than the accused was considered relevant by Defence in those circumstances where the sexual behaviour took place close in time to the alleged incident.

Excluding general character evidence

5.77 In Chapter Four, it was stated that evidence or questioning concerning the character of the complainer was sought in approximately one quarter of cases. Most commonly, the character evidence related to the complainer's (alleged) mental instability, dishonesty (including past unproven allegations of sexual assault), or use of alcohol or drugs in the past and/or at, or around the time of the alleged offence.

5.78 On the issue of excluding character evidence, several Judges returned to the point that general character evidence was always largely excluded by existing law, and the 2002 Act widened the restrictions on evidence unnecessarily. This view was shared by most Advocates Depute and Defence practitioners interviewed. Consequently, they did not view the 2002 legislation as improving on the existing legal situation in this respect.

5.79 As far as Judges were concerned, the most pertinent form of relevant and therefore admissible character evidence identified was dishonesty on the part of the complainer and, in particular, previous unproven allegations of rape.

5.80 Yet some Defence practitioners believed that Judges would not easily admit such evidence. As Defence 3 said:

"I've seen applications going in and people trying to argue them in which somebody said, "She's claimed she's been raped before", and I think that's extremely weak and judges have always seen through them and said, "So what?" because it's a ludicrous argument that that means that the second allegation must be false, or something like that." (Defence 3)

5.81 Judge 1 cited a different kind of example of evidence of dishonesty in reporting sexual behaviour, recalling an s.275 application to lead evidence that the complainer had gone to the accused's flat and engaged in intimate sexual conduct which she had denied to the police because she didn't want to get somebody into trouble, and then changed her story. The Judge noted that the important thing was her dishonesty about the sexual behaviour, and not the sexual behaviour itself.

5.82 The same Judge gave another example of dishonesty becoming relevant evidence because it was cited as a motive for an unproven allegation, referring to a case in which it was alleged the complainer had made an allegation of rape to elicit sympathy in a situation in which she had been the subject of an allegation of theft.

5.83 Judges typically had no difficulty in imagining forms of dishonesty that would not be relevant and did not generally take the view that simply anything which had a bearing on the credibility of the complainer was of relevance. For example, Judge 1 noted that he or she would not allow questioning to show that a complainer lied, saying: "I'm just going to my friend's" when in fact she was going to a night club. However, Judge 4 thought there was some lack of clarity in the legislation with respect to this issue.

Comparison with the baseline study

5.84 It is possible to use the baseline study to compare the dialogue around applications before and after the legislation, in order to further consider whether the 2002 legislation has refocused discussion. This is done here by looking at attempts to introduce similar sorts of sexual character evidence in applications before and after the 2002 legislation. Three similar cases are discussed: 2 from the baseline study and one from the current study. A fuller description of each is given in Appendix Five. These are all cases involving rape (and/or, in the earlier period, clandestine injury) and attempted rape in which the Defence claimed that whatever had happened was consensual and sought to introduce evidence about the complainer's sexual behaviour which blended into claims about her sexual character.

5.85 Case 1110 is an example from the baseline study, in which the Crown accepted the arguments of the Defence who sought to introduce questioning about the complainer about alleged incidents involving "naked dancing" witnessed by someone other than the accused, and her "offers of oral sex ." The Defence suggested that this demonstrated the complainer's propensity to "promiscuously consent to sex" and that she was not a credible witness. The Judge allowed the questioning after a short dialogue with the Defence.

5.86 In a second baseline case, 1202, involving an application to introduce a similar sort of proposed evidence, of alleged "exhibitionist, sexually provocative behaviour", the Crown did object arguing that the Defence were seeking to put evidence before the jury of sexual occasions which were prejudicial to the complainer and had little bearing on the night of the alleged offence. Although the Judge permitted some of the proposed questioning, other aspects were disallowed, and restrictions were placed on the questioning.

5.87 The most similar case among the sample of cases studied in depth post 2002 was case 121 in which the Defence sought to establish that the complainer had "a practice of making sexual advances to others when she had been drinking." The Advocate Depute argued that this line by the Defence was against the purpose of the legislation and was a general attempt to undermine the complainer's credibility without showing relevance to the charge. The Judge was similarly not satisfied that the proposed evidence was relevant to establishing guilt nor was he satisfied that the probative value of the evidence was likely to outweigh any risk of prejudice to the proper administration of justice. The Judge made explicit reference to "the need to protect the complainer's privacy and dignity and to ensure that the facts and circumstances put before the jury are commensurate to the importance of the issue of the jury's verdict."

5.88 This comparison suggests that it may be that the way in which the new legislation orients the discussion during an application makes the introduction of sexual character evidence more difficult to argue and more likely to be opposed by the Crown.

Chapter Summary

5.89 While the written nature and required format of s.275 applications rendered them much more transparent than applications under the previous legislation, prior agreement between the parties typically meant relatively little discussion of any aspect of s.275 applications at preliminary hearings.

5.90 Advocates Depute tend to take a neutral view on Defence s.275 applications, and the majority of applications to introduce sexual history and character evidence were not opposed by either party.

5.91 Where s.275 applications were opposed by the Crown, this was most often in relation to general character evidence and in particular to allegations of dishonesty on the part of the complainer. Judges revealed that they considered the most relevant form of dishonesty admissible to be previous "false allegations" of rape on the part of the complainer. Some examples were also found of Advocates Depute challenging aspects of applications that were poorly specified.

5.92 S.275 applications by the Crown were less common, typically unopposed by the Defence and accepted by the court. However, the 4 Crown only application cases included one in which the Defence objected to a Crown application as a potentially damaging exploration of a complainer's private sexual habits, a view upheld by the court which refused the application.

5.93 Some Judges were clear that it was their duty to ensure that the legislation was observed and would pay very careful attention to the wording of the legislation when deciding a s.275 application. However, by their own admission, Judges were also more likely to restrict or disallow Defence applications where the Advocate Depute opposed. Some Judges also said they would refuse Defence applications whether or not the Crown objected, particularly those that were poorly specified or of weak relevance. However, some Judges said the position of the Crown was decisive. One indicated that the threat of appeal denied the Judge the ability to effectively object to Defence applications unopposed by the Crown.

5.94 Two Judges described the drafting of the legislation as unnecessarily complicated and detailed, rendering some sections, in particular the need to take account of the "proper administration of justice", rather difficult to interpret.

5.95 Examination of s.275 applications and interviews revealed that there was often a shared presumption of relevance by Crown and Defence and, arguably Judges, concerning sexual history evidence, particularly where there was a past history between the complainer and accused. All Judges interviewed would allow evidence to establish a past sexual relationship between a complainer and an accused, accepting that this would normally be relevant background context that the jury would need to understand the events.

5.96 Most applications were decided at one preliminary hearing, although several were continued to subsequent hearings before a final decision. Continuations were for 2 main reasons: when it was not possible to have a full discussion due to lack of time or unavailability of relevant information; or where an applicant was trying again at a subsequent hearing or at the trial itself after an application had been partially or entirely refused by the court.

5.97 The Judge at preliminary hearings is rarely the same as the trial Judge and, moreover, different Advocates Depute can be involved at different points in the process. Defence practitioners were the most likely to refer to the disadvantages of applications being decided in advance of a trial.

5.98 On the issue of excluding general and sexual character evidence, interviewees emphasised that general character evidence was always largely excluded by law, and considered the widening of the restrictions unnecessary in this regard.

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