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

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Chapter Six: s.275 Applications and Previous Convictions of the Accused

6.1 This Chapter addresses one of the key research objectives, that is, to establish the extent to which previous convictions of the accused are disclosed, the circumstances under which they are disclosed and any impact this has on proceedings.

6.2 Information about any previous convictions of the accused is normally withheld from the jury, as it is considered prejudicial. Under section 270 of the 1995 Act, where the character of the prosecutor, the complainer or any other witness for the prosecutor is attacked, it was open to the Prosecution to retaliate by attacking the character of the accused. Where the Defence sought to undermine the credibility of the witness by attacking her character or sexual morals, it would be open to the Crown to apply to the court to examine the accused as to his own character and reveal his own previous convictions, if he has any, to the jury. In practice this did not appear to happen to any great extent (Burman et al, 2005).

6.3 Redressing the Balance (2000) argued that it is difficult to distinguish the logic of a Defence argument that, because the complainer has slept with other men in the past, or has engaged with the accused in sexual behaviour in the past, she is more likely to have consented on the occasion in question, from the logic of saying that if the accused has committed a sexual offence in the past, then he is likely to have done so on the occasion of the index charge. It was therefore proposed that where an application to admit evidence about the complainer's sexual history or character is granted, there should be an automatic disclosure of any convictions which the accused has for sexual offences within the offence categories covered by the legislation:

"Where the accused does have such previous convictions, he will therefore be aware that seeking to attack the character of the witness is going to result in disclosure of his previous convictions. Clearly where he had no previous convictions he would have nothing to fear (2000: 10) "

6.4 Chapter One described how under sections 275A (1) and (2) of the 2002 Act, where the Defence, following a s.275 application, does succeed in convincing the court that character or sexual history evidence should be introduced, the Judge and Prosecution are no longer prohibited from asking questions relating to offences other than the one with which the accused is charged.

6.5 Following a successful s.275 application by the Defence, and unless the accused objects, the Crown is required to place any relevant previous convictions of the accused before the judge. Once the relevant convictions are before the judge, they will automatically be admitted as part of the evidence in the case and disclosed to the jury, unless the accused objects. The various grounds for objecting are set out at s.275 (4). An accused may object on the basis that: the offence did not involve a substantial sexual element; that disclosure would be contrary to the interests of justice; or that the conviction did not relate to the accused.

6.6 Relevant convictions include a conviction for an offence to which section 288C of the 2002 Act applies, 32 or where a substantial sexual element was present in the commission of any other offence of which the accused has been convicted. These convictions will then automatically be admitted as part of the evidence in the case and disclosed to the Judge and, potentially, to the jury. Where s.275 applications are made by the Crown, then the requirement to disclose previous convictions does not apply.

No disclosure

6.7 There was no information in any of the available data sources to indicate that an accused's previous convictions had ever been disclosed as a result of a s.275 application by the Defence, but it was unclear whether this was because such disclosure had never occurred, or it had simply not been recorded in the data sources to which the research team had access.

6.8 To check this out further, information about the presence or absence of previous convictions of the accused was obtained from the Sitting Papers at the Justiciary Office in Edinburgh High Court (this information is not available from the High Court Case Management System). 33

6.9 Within the total sample of 231 mapped sexual offence cases, all of the 162 cases which include at least one charge of rape, were examined for the presence of previous convictions. In 14 of these cases, no information to confirm whether the accused had previous convictions was available. The information presented in this chapter is based on the 148 cases where relevant information about previous convictions was available.

6.10 Case Sitting Papers were used to confirm whether the accused had previous convictions in relation to the following categories of cases:

  • Rape cases with s.275 applications made by the Crown only;
  • Rape cases with s.275 applications made by the Defence alone, and by both the Defence and Crown; and
  • Rape cases without s.275 applications.

6.11 Table 6.1 shows the presence or absence of previous convictions in the mapped rape cases. It can be seen that whilst in 93 of the 162 cases, the accused had some sort of previous conviction: this was for a sexual crime in just 20 cases (or 12%). In 55 cases, the accused had no previous convictions, and in 14 cases it was not known whether there were any previous convictions.

Table 6.1 Previous convictions of accused in rape cases with and without s.275 applications (June 2004 to May 2005) mapped cases

Status regarding Previous Convictions

Cases without s.275 application

Cases with Crown only applications

Cases with Defence applications**

All Rape cases

n

%

Analogous

9

4

7

20

12

Non-analogous

36

0

37

73

45

None

32

2

21

55

34

Unknown

2

1

11

14

9

Total cases

79

7

76

162

100

** Includes cases with Defence only s.275 applications, and cases with both Crown & Defence s.275 applications.

6.12 Of the total of 20 rape cases where the accused had an analogous previous conviction, an application was made by the Defence in 7 cases, and in 4 cases the s.275 application was made by the Crown alone. In the remaining 9 cases where the accused had an analogous previous conviction there was no s.275 application made by either party.

6.13 Forty nine of the 162 rape cases did not proceed to trial, as Table 6.2 shows, and a quarter of the 20 rape cases where the accused had an analogous previous conviction did not proceed to trial. Although the numbers are extremely small and should therefore be treated with caution, this does tentatively suggest that cases where the accused had an analogous previous conviction were less likely to result in a guilty plea than rape cases where the accused had non-analogous or no previous convictions. This is interesting in that, during fieldwork, it was informally suggested by those involved in cases where the 2002 Act would potentially apply, that the possibility of disclosure of previous convictions might be a factor in deciding to plead guilty.

Table 6.2 Previous convictions in cases which do, and do not proceed to trial (June 2004 to May 2005)

Status of previous convictions

Guilty/ mixed plea (no trial)

Not guilty/ mixed plea
(going to trial)

Other (a)

All rape cases

Analogous

5

12

3

20

Non-analogous

23

46

4

73

None

21

32

2

55

Unknown*

0

12

2

14

Total cases

49

102

11

162

(a) Includes cases that were deserted pro loco et tempore, and non-appearance by the accused

Previous convictions and Crown only s.275 applications

6.14 It has already been established that cases in which the Crown only make applications are rare; 34 just 7 out of the 162 mapped rape cases involved Crown only applications. With the caveat that numbers are very small here, the research nevertheless found that a relatively high proportion of Crown only applications (i.e. 4 out of the 7) involve previous analogous convictions on the part of the accused.

6.15 One of the 4 cases (209) formed part of the sample for more detailed analysis, and was transcribed. The following extract is from the preliminary hearing where the application was discussed, and suggests that the Crown offered to lodge an application in order to allow certain evidence to be introduced at the trial:

Defence: "...in order to place that evidence before the jury, there has to be a s.275 application. And this was discussed with the Crown and with a view to ensuring a fair trial the Crown very helpfully and properly offered to present the s.275 minute themselves because for us to present the s.275 minute has certain consequences and penalties at this stage which the Crown do not face." (case 209)

6.16 This raises the question of whether the Defence might seek to avoid the penalty of lodging an s.275 application by negotiation over the lodging of a Crown s.275 application to introduce similar questioning or evidence to that which the Defence would otherwise seek to introduce. However, no practitioner interviewed fully endorsed the view that this was likely to become a common practice. Defence 1 refers to pre-trial discussion with the Crown but does not say anything to indicate pre-trial negotiation designed to avoid the penalty of disclosure.

Researcher: "You'd discuss the substantive contents of the s.275 application [with the Crown]?"

Defence: "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)

6.17 Defence 3 expressed clear doubts:

"I've never come across a situation where that has happened in practice and I think it's perhaps unlikely that it would in some ways because I think Crown application, as I'll come on to, are a wee bit rare and seldom go as far as the Defence would want them to." (Defence 3)

Previous convictions and s.275 applications made by the Defence

6.18 In 3 of the 7 rape cases where the Defence made a s.275 application, it was allowed either in full or partially, and the case went to trial. From the available information (case minutes for all 3 cases, and a transcript for one case), there was no evidence to indicate that the analogous previous convictions were placed before the judge, or the jury, as the legislation intended.

6.19 In the first case (044, one of the transcribed trials) which involved a single rape charge and the submission of s.275 applications by both the Defence and the Crown, both applications were allowed in full. The previous conviction in this case related to s.4(1) of the Sexual Offences (Scotland) Act 1976 (sexual intercourse with a girl of or above 13 years and under 16 years). The preliminary hearing dealt only with the Crown application, as the Defence at that stage had not lodged an application. At the preliminary hearing, following a question from the court as to whether there was an intention to make an application, the Defence referred to the potential for the accused's previous convictions to be disclosed as a reason for not doing so, although the court was not convinced that a s.275 application was necessary:

Judge: "It's perhaps possible that the matter you are addressing is actually not excluded by virtue of s.274 (1)(c)."

Defence: "well, that certainly would be the basis upon which I would be proceeding because, as [judge] well knows, had I or those instructing me made an application and that application succeeded, then that has consequential difficulties in terms of previous convictions."

Judge: "Yes."

Defence: "It is for that reason that clearly much thought has to be given to these things but with respect, I share [judges'] view that that kind of evidence may well be allowed in another way."

Judge: "Yes, given the likelihood of the material remaining there for any length of time it would appear to be something that might well be not excluded by s.274(1c), so no doubt you could approach it on that basis at the trial."

Defence: "Indeed, I just in fact flagged that up in fairness to the Crown. In fact I've spoken to the learned depute who is doing the trial. I have raised this matter with him and I think possibly during the trial we can reach an accommodation." (Case 044)

6.20 However, the Defence did go on to submit a s.275 application at the commencement of the trial (under "special cause shown") which was allowed in full. There was no evidence in the transcript of the trial or the case minutes to show that the accused's previous analogous convictions were disclosed, or raised in any way, other than the reference made by the Defence in the excerpt above. The verdict was not proven.

6.21 In the second case (205), which involved a charge of rape along with one other (non-sexual) charge, a previous conviction for rape was listed in the schedule in the case Sitting Papers. From the case minutes, it seems that the previous conviction of the accused was raised only when the Advocate Depute moved for sentence after the jury had reached their verdict. At an earlier stage in proceedings, there was a Defence motion to desert the case since a tape of the accused's interview with the police was played to the jury, wherein the accused refers to having been in prison. The Crown did not object to this, the first jury was discharged and the trial went ahead before a second jury. In this case, it should be noted that the offence which resulted in the previous conviction for rape, occurred after the offences listed on the current indictment.

6.22 In the third case, with a successful s.275 application made by the Defence (136), there was no reference in the minutes to the accused's convictions relating to rape, lewd and libidinous practices and behaviour, and unlawful sexual intercourse with a girl between 13 years and 16 years, being raised in the case. The verdict in this trial was not guilty.

6.23 There was a fourth case (084) which involved rape along with several other charges, and the Defence application was allowed in full. However, whilst the lengthy schedule of previous convictions included "Assault: agg: sexual", this took place when the accused was a juvenile and was dealt with by the Children Hearing System, which imposed a supervision requirement. This would not count as an analogous previous conviction. The verdict was not guilty.

Crown discretion?

6.24 One reason why the relevant previous convictions were not disclosed in these cases may be that some discretion was used concerning such disclosure, as the following extracts indicate:

"Sometimes the s.274/5 you need the evidence in, you need to make these questions, so you would approach the Crown and ask them if they would withhold. I know it says shall disclose rather than may, but sometimes the Crown are quite reasonable." (Defence 5)

"An awful lot of the job we do and Judges do is obviously a question of balance at all stages and I would have thought it would only be the most extreme cases that the Crown would seek to go about trying to get previous convictions in." (Defence 2)

Impact of disclosure of past analogous convictions on proceedings in sexual offence trials

6.25 On the basis of these findings, it seems unlikely that the prospect of having to disclose analogous convictions following a successful s.275 application by the Defence to introduce sexual history or character evidence, might prompt the accused to consider pleading guilty in advance of trial, despite the fact that this was a common impression relayed informally to us by legal practitioners during fieldwork periods in the courts. Interviewees spoke about the general unwillingness of those accused of rape to consider pleading guilty in advance of trial. This can be summed up by the following:

"… I don't think the legislation has absolutely any effect as to whether an accused will plead or not - it's very difficult. I'm thinking specifically at the moment of rape cases and especially ones where consent is an issue; that's usually something that has to go to trial. If consent is an issue, it's just simply not going to happen that the accused is going to plead." (Defence 1)

6.26 It is very difficult to gauge the effect of the requirement to disclose analogous previous convictions on proceedings when, first, so few cases where the accused had analogous previous convictions and which involved a s.275 application by the Defence were both successful and proceeded to trial. Second, even where such cases did proceed to trial, it seems as if the previous analogous convictions were not being disclosed to the Judge and jury in the way that the legislators intended. Although the numbers are small, we remain sceptical that practice follows legislative intent. The outcomes of various strands of legal practice have combined to protect the accused from having potentially damaging information disclosed.

Presence of previous convictions acting as a deterrent to making s.275 applications

6.27 There were 9 cases where the accused had analogous previous convictions, and which did not involve a s.275 application by the Defence. Given that there are relatively few cases where applications are not made, is there a possibility that the requirement that analogous convictions will be disclosed following a successful Defence application deter the making of an application in the first place?

6.28 Whilst informal discussion with legal professionals during fieldwork suggested that it does, when this was pursued in interviews, there was no clear consensus. Two Defence interviewees felt that Defence lawyers would choose "not to make" applications where there was a possibility that previous convictions would be disclosed to the jury. As Defence 3 said:

"I think there are few cases in which people would choose to do that. I think you would really have to say that the evidence that you were trying to adduce would have to be really in itself of huge importance to outweigh the likely prejudice of disclosing a previous conviction in front of a jury." (Defence 3)

6.29 This interviewee went on to say that Defence lawyers would consider previous convictions in front of a jury to be "pretty catastrophic":

"I suppose with perhaps a minor previous conviction from some time ago against a lengthy record for dishonesty from the complainer, or something like that. It would be a balancing act but as a generality I think people would be very slow to do that." (Defence 3)

6.30 Similarly, none of the Judges interviewed could imagine situations where the Defence would be advising the accused to make a s.275 application to introduce otherwise prohibited evidence about the complainer where there was a risk that the past analogous convictions of the accused would be disclosed to the jury.

6.31 However, not all interviewees believed that the risk of previous convictions being disclosed would have a "chilling" effect on applications. The response from Defence 2 would suggest that the possibility of the accused's previous convictions being disclosed did not act as a deterrent to submitting a s.275 application, since the Crown were unlikely to seek to disclose previous convictions. He said:

"It's not been used as far as I've seen, as some sort of disincentive to the Defence. Unless the s.275 is clearly lacking, and this might be viewed as just an old fashioned attack on character for the sake of it, then I think then it would be something that the Crown would bring into play. But I think if the Defence is responsible in their framing of their s.275s then I think by and large you meet the requirements, its specifics and it's clear that you have a line and there is a relevance, then the Crown are still very conscious of the general rules about presumption of innocence and things of that nature not being compromised unless it's absolutely and utterly necessary." (Defence 2)

Previous convictions in the context of domestic abuse

6.32 In the rape cases examined for the presence of previous convictions on behalf of the accused, 8 rape cases were identified where the accused had a previous conviction for an offence which occurred in the context of domestic abuse, but which did not contain a sexual element. This information was obtained from the case Sitting Papers, where it was variously documented under "History of the Accused", in the Social Enquiry Report prepared by a social worker, or in the schedule of previous convictions, although the level of background information available in each case varied.

6.33 In 3 rape cases with a Defence application, and 2 rape cases with both a Defence and a Crown application, there was a previous conviction for assault, assault to injury, or assault to severe injury perpetrated against the partner or wife of the accused. In one rape case where a Defence application was submitted (and allowed in part), the previous conviction for assault to severe injury was against the accused's ex-partner, who was also the complainer in the index offence. The verdict in this case was not guilty.

6.34 In a further 3 cases with no applications made by either party, there was a conviction for assault in the context of domestic abuse, although it was not clear from the documentation whether this was against the same complainer as in the index offence.

6.35 Although these are not strictly relevant previous convictions in terms of the 2002 Act, as they do not involve a "substantial sexual element", they are indeed relevant in the context of the accused having a past history of violence against women. Prior convictions relating to domestic abuse on the part of the accused may be relevant in any rape or sexual assault case, in that they show a previous history of violence against women. Even more so where the history of violence evidenced through the previous convictions is against the same woman as in the current trial (as it was in at least one of the 8 cases identified here). This is as much a part of the facts of the case as the previous relationship itself.

6.36 It is worth noting in this regard that Redressing the Balance sought views on whether previous convictions for assault could be included under the terms of the 2002 Act, on the basis that assault is a crime of violence and might be considered just as relevant as previous convictions for shameless indecency. However, in the final formulation of the 2002 Act, disclosure of previous convictions did not extend as far as assault.

Chapter Summary

6.37 S.275A of the 2002 Act allows disclosure of the accused's relevant previous convictions where the court allows questioning or evidence about the complainers past sexual history or character. Relevant convictions are those for sexual offences, or offences where there was a substantial sexual element in the commission of the offence. An accused may only object to relevant convictions being admitted as evidence in the case where the offence did not involve a substantial sexual element, the disclosure would be contrary to the interests of justice, or the conviction did not relate to the accused.

6.38 In order to assess the extent to which previous convictions of the accused were disclosed, and the impact that this has on proceedings, all rape cases (n=162) over the 12 month period studied were examined for the presence of previous convictions. In 20 cases (12%), the accused had an analogous previous conviction. In 7 of these a s.275 application to introduce prohibited evidence was made by the Defence, 3 of which were successful. There was no evidence to demonstrate that relevant previous convictions of the accused had been placed before the court as the legislation intended.

6.39 In 4 of the 7 rape cases in which an application was made by the Crown only, and not by the Defence, the accused had previous convictions. Although caution should be exercised in drawing conclusions from such a small number of cases, there is nevertheless some evidence from transcripts of preliminary hearings where the consequences of a Defence application were discussed, where it was acknowledged that submission of an application by the Crown allows the introduction of sexual history evidence into the trial, without the need for a Defence application, which could result in the accused's relevant previous convictions being disclosed to the court. It should be noted, however, that this was not a view fully endorsed by the legal practitioners interviewed.

6.40 With regard to the impact of the potential disclosure of the accused's previous convictions on case proceedings, the presence of analogous previous convictions did not result in the accused pleading guilty as seemed to have been anticipated by some of the practitioners interviewed. Nor, importantly, has the possibility of disclosure of previous convictions had a "chilling" effect on applications. Bearing in mind the caveat about small numbers of cases, the data suggests that not only has this not happened, but also a range of practices ensure that in virtually no cases is this information introduced as intended. In sum, the potential disclosure of previous convictions appears to have had little impact upon case proceedings. This may, in part, be a reflection of the fact that previous convictions did not appear to have been disclosed to the court.

6.41 Finally, in 8 of the rape cases, the accused had a previous conviction for assault, assault to injury, or assault to severe injury in the context of domestic abuse. Under the 2002 Act, these convictions are not defined as relevant convictions since they do not involve a substantial sexual element. Yet the fact that the accused had prior convictions relating to domestic abuse is relevant in sexual offence cases, in that they show a previous history of violence against women. Where the past assault was perpetrated on the same woman as in the index offence, as it was in at least one of the 8 cases identified here, then this is surely as much a part of the facts of the case as the previous relationship itself.