Chapter Seven: The Use of Sexual History and Character Evidence in the Trial
7.1 This chapter focuses on the use of sexual history and character evidence in the trial, following a s.275 application to do so, in order to address how the 2002 Act works in practice. The chapter draws on data from the 32 trials in which s.275 applications were made, and from interviews with legal practitioners.
7.2 Primarily, the chapter considers the ways in which the evidence or questioning sought in applications was introduced and used in the trial and, specifically, the extent to which the questioning adhered to the parameters set by the court in the preliminary hearing. It also examines, where appropriate, the role taken by the other party, and by the court when questioning or evidence strayed beyond the boundaries set for the application. The last part of the chapter compares both the extent and the use of sexual history and character evidence introduced under the 2002 Act with that identified by the baseline study.
Introducing sexual history of character evidence allowed through s.275 applications
7.3 It has already been established that a very high proportion of sexual offence trials contained s.275 applications and, for the most part, the evidence or questioning sought was allowed by the court. Interviews with Defence practitioners suggested that they tried to ensure that s.275 applications were as full and detailed as possible, sometimes referring to including everything that they might possibly wish to pursue as a "belt and braces" approach, although they may not ask some of the questions or pursue all of the evidence sought during the trial itself. Detailed examination of trial data, however, revealed that it was rare that all evidence allowed under s.275 applications was not pursued by the Defence at some time during the course of the trial, but particularly during the complainer's cross-examination. The "belt and braces" approach to drafting s.275 applications therefore resulted in detailed and often lengthy questioning of the complainer on sexual or character matters.
7.4 It was stated in Chapter Four that s.275 applications can be very detailed and lengthy. For example, the written application in case 172, which involved 2 charges of assault with intent to rape and attempted rape, listed 14 separate aspects relating to both sexual history and character matters under "nature of evidence or questioning sought", all of which were considered relevant and allowed in full by the court:
(i) That applicant and complainer formed a relationship in [date]. They lived together [soon after] and purchased property together;
(ii) That the relationship was characterised by aggressive arguments especially if complainer had been drinking;
(iii) That complainer frequently used illicit drugs particularly ecstasy and cocaine. On occasion of charge 1, complainer drank alcohol to excess and abused cocaine;
(iv) That a physical confrontation occurred [charge 1: assault with intent to rape] which involved complainer slapping and scratching the applicant on face and body and kicking him;
(v) That complainer denied to police that incident had any sexual element;
(vi) That a few days after the incident complainer called the applicant and said "come and take me away";
(vii) That on [date 2 weeks after incident in charge 1] complainer phoned applicant. Complainer and applicant met and had sexual intercourse;
(viii) Thereafter for several months, complainer and applicant met once or twice a week and regularly had sexual intercourse in complainer's flat, accused's house or at hotels;
(ix) On [date one year later] complainer asked applicant for £1000 to help pay for a flat. Applicant declined whereupon complainer stated "I've got photos to show police, maybe police will help me get a mortgage";
(x) That applicant attended a party in [place] with complainer in [following year] where complainer performed a "striptease" type dance directed towards the applicant;
(xi) In early hours [same date] during phone call complainer asked applicant to meet at her flat;
(xii) After arrival at the flat complainer performed a sexually suggestive dance in front of applicant;
(xiii) That a physical confrontation occurred [charge 2 - attempted rape] involving the complainer grabbing the applicant and attempting to slap and scratch him; and
(xiv) That since [date of charge 2] complainer has attempted to contact the applicant by phone.
7.5 All evidence was pursued during the trial, in much more detail than is conveyed in the written application, which in turn led to a very lengthy cross-examination. For example, in relation to establishing (i) above, the Defence tried to show that the complainer and accused embarked on a sexual relationship very shortly after they first met, that they had sex very frequently, that they had sex in public places including parks, that they had sex in a public place shortly after charge one, and that throughout their relationship sex was often accompanied by excessive drinking and drug-taking.
Breaching s.275 applications
7.6 Of the 32 trials which included applications, approximately one half introduced some evidence or questioning during the trial, which had not been explicitly agreed to by the court. This was evidence which had been either specifically disallowed by the court, or which strayed over the boundaries of questioning set by the court in the preliminary hearing, and included the following types of occurrences:
- s.275 application made by Defence and allowed by court but sexual history evidence introduced by Crown;
- s.275 application made by Crown, and allowed by court but sexual history and/or character evidence introduced or pursued by Defence without s.275 application;
- s.275 application allowed, but questioning strayed over the parameters set by the court; and,
- s.275 application disallowed by the court, but questioning or evidence sought was introduced.
7.7 So in some cases, this was a clear breach of the agreement reached by the court, or otherwise an obvious disregard for the provisions, but in other cases there was more room for debate.
Objections and interventions
7.8 Following the introduction of restricted or specifically prohibited evidence, objections by the other party and/or interventions by the court occurred infrequently, in just 7 cases in all. The Crown objected in 4 cases, and the trial Judge intervened in one case. In the sixth case (039), notably, the Defence objected to the line of questioning pursued by the Advocate Depute regarding details of the complainer's sexual history with the accused, due to a concern that the evidence elicited disclosed a sexual encounter between the complainer and accused outwith the period covered by the indictment. Following a brief discussion in the absence of the jury the court allowed some limited questioning to continue.
7.9 In a seventh case (188), which involved an objection from the Crown, the accused was the complainer's father, and the Defence application sought to elicit evidence concerning the manner in which the complainer reported the abuse and on the continued contact between the complainer and her father following the charge. During cross-examination however, the Defence began to question the complainer about her "stormy" relationship with her husband and mother, suggesting that she had a particularly volatile and malicious personality and was prone to violent temper outbreaks. The Defence tried to suggest that the complainer had sustained a black eye in an argument with her husband, and had a major fall-out with her mother on the eve of her wedding. The Advocate Depute interjected at this point, alluding to the need for this to be argued outwith the presence of the jury. There followed some discussion concerning whether this constituted character evidence that required an application, but one was not made. The Defence then moved on to another set of questions but, later during cross-examination, continued to question the complainer on the argument with her mother, building on the picture of her as argumentative and unpredictable. This time there was no objection, and the Defence continued:
Defence: "Yes. I think the reason your parents didn't attend the wedding is because they didn't like [partner] and you'd fallen out with your mother."
Complainer: "Yes. Well I fell out with my mum after the wedding not before it. I was upset that she wasn't coming to the wedding but we hadn't fallen out then."
Defence: "And some days after the wedding you telephoned your mum."
Complainer: "It was the night after the wedding."
Defence: "And you were screaming at her over the phone."
Complainer: "Well the conversation was fine to begin with and ended up in an argument over the phone."
Defence: "You've got a bad temper haven't you?"
Complainer: "Not really no."
Evidence or questioning sought under s.275 by Defence but introduced by the Crown
7.10 In some cases only the Defence made an application, but sexual history evidence was first introduced by the Crown. In case 108, for example, an application was made by the Defence to question the complainer about her relationship with her boyfriend, although it was the Crown that commenced questioning during examination-in-chief:
AD: "Now at the time back in [month /year] you've told the ladies and gentlemen you had a boyfriend."
AD: "Prior to the night we've been talking about, when was the last time you'd had sexual intercourse."
Complainer: "Two, 3 maybe even 4 weeks before, not sure."
7.11 This was then picked up by the Defence during cross-examination:
Defence: "I don't mean to cause you any embarrassment but you were asked by [ AD] about [boyfriend] and when you would have last had intercourse with him, and I think if I've noted your answer correctly you said it would have been between 2 and 4 weeks."
Complainer: "I think so. I'm not sure how long it was. I hadn't seen him for a wee while before it."
Defence: "But to be clear, I just want to be clear, I'm not suggesting you're lying about that, just simply asking you your recollection is that it was 2 to 4 weeks."
7.12 In case 232, which involved 2 complainers, an application was made by the Defence, and sought to question the first complainer on previous allegations of abuse made against another person when she was younger, and a criminal injuries claim, and also sought to elicit contraceptive history in respect of the second complainer. During examination-in-chief of the first complainer, the Advocate Depute elicited what might arguably be called "bad" character evidence in the context of establishing where and how she had divulged the previous allegation:
AD: "I want to ask about your conduct as a child, were you unruly?"
Complainer: "Don't understand."
AD: "Were you as a young person, did you misbehave, ever get drunk?"
Complainer: "Yes …got drunk and that…."
AD: "You were drunk on one occasion the police lifted you."
AD: "And you said something?"
Complainer: "Yes I was drunk and I said, "he's paying me for sex"."
AD: "To anyone in particular?"
Complainer: "Just announcing it…in the street where we lived."
7.13 The Defence followed this up in cross-examination, saying she missed an opportunity to report the alleged abuse and suggesting it was a "false allegation." The Defence then went on to introduce sexual history evidence by way of a question about the presence of love-bites:
Defence: "Did it not seem like another opportunity when police lifted you about your behaviour and were saying things about accused, not opportunity for you to tell them then?"
Complainer: "Yes it was a good opportunity but I was scared."
Defence: "On one occasion your mum saw love bites on your breast?"
Complainer: "Quite a few occasions."
Defence: "What age were you at that time?"
Complainer: "…16 or something, can't remember."
Defence: "Did you say to her it was none of her business or that it was to do with your boyfriend?"
7.14 There had been no reference to these issues in the Defence application, although it is interesting to note that, during the discussion of the Defence application, the Crown stated that they had intended to submit a s.275 application in respect of the contraceptive history of the second complainer, but it was an oversight and so sought to rely on the Defence application in this matter:
AD: "It may well be that the terms of the Defence s.275 are going to be sufficient to allow the Crown to ask the same questions unless your lordship takes a different view. … Of course one of the differences between the Crown and the Defence application would be that the inference sought to be drawn would not be the same. …But it may well be that the Defence application turns out to be sufficient. I know it is a matter the court has to be satisfied on but I take the view that if there is an application outstanding which the Defence covers I don't see that the Crown should simultaneously cover the same thing. Maybe your lordship takes a different view?"
Judge: "I have not heard any authority on this where 2 different inferences are to be drawn."
AD: "So long as the point is somewhere in a s.275 application somewhere, I have certainly never from the Crown's point of view followed a line of questioning under s.275 and then raised an objection to any Defence line which sought to raise issues that I raised so I wouldn't have thought 2 were necessary. However it may be that when I go back to the office and read the precognition then if anything further is required in so far as it goes beyond what the Defence have given notice of."
Judge: "So you are just reverting to the position that the Crown will make an application under s.275 at a later stage if it feels something outside of the Defence's application is required."
AD: "Yes." (preliminary hearing case 232)
7.15 Interviews with Advocates Depute suggested that the Crown are not always mindful of the need to make a s.275 application, partly because of the relative newness of the requirement to do so.
Straying beyond the parameters of questioning set by the court
7.16 In case 044 the Crown application sought solely to elicit evidence that the complainer had had sexual intercourse with another male 5 or 6 months before the alleged offence. The court restricted the questioning thus: "subject to the condition that it is for the purpose solely of ascertaining whether the girl had on a previous occasion had sexual intercourse and no more than that." (Judge in case 044)
7.17 The Defence also sought to elicit the same evidence on the basis that the complainer feared she was pregnant by someone other than her boyfriend. The Defence application, however, was made at a different preliminary hearing, before a different Judge, and the questioning was not restricted in the same way. At trial, the Defence questioned the complainer at length about how and when she lost her virginity, and also introduced evidence about her alleged predisposition to lying, delay in reporting the allegation to the police and refusing to undergo a medical examination, arguing that this was evidence of a "false allegation", lack of credibility, and consent.
7.18 In case 204, the court restricted the Defence application by specifically disallowing questioning to elicit that the complainer had been working whilst also claiming unemployment benefit. In the trial, the Defence subsequently questioned the complainer on her "trouble with the DSS" at some length, the transcript of which extends to 3 pages.
7.19 In case 233, the Defence sought to elicit evidence about the young complainer's "sexual maturity" based on the contents of the medical report, and also asked about her sexual relationship with another witness in the case, whose child she was carrying. During the preliminary hearing, the Judge expressed reservations about the evidence sought in relation to the relationship and set restrictions thus:
Judge: "I think what I'll do is refuse that [part of] application "in hoc statu" because I suspect, particularly as the AD says, that the relationship between the complainer and witness may very well emerge in the course of the evidence in chief … it doesn't emerge that enables you the opportunity to come back and renew your application outwith the jury before you cross examine."
7.20 The relationship did not surface during the examination in chief of the complainer, and the Defence did not submit a s.275 application at trial, but did go on to question the complainer about her relationship with the witness, establishing that they currently live together, although they did not cohabit at the time of the alleged offence, and that she was currently pregnant with his child. The evidence concerning the complainer's physical "sexual maturity" was also pursued.
Evidence or questioning sought under s.275 by Crown but introduced or pursued by the Defence
7.21 In a small number of cases where the Crown made a successful application, the evidence introduced by the Crown was subsequently expanded upon by the Defence. In case 138, for example, the Crown sought to elicit that the complainer and the accused had engaged in consensual sexual intercourse during a long-term relationship. The Defence had not submitted an application at all in this case but questioned the complainer further on the nature of her sexual relationship with the accused that had been elicited by the Crown:
Defence: "During the course of your relationship with the accused you would have intercourse on a number of occasions."
Complainer: "During my relationship with him, yes."
Defence: "During the time you were staying together as a couple."
Defence: "And during that time the fact that you were menstruating was never a bother to having intercourse was it?"
Complainer: "Sometimes it wasn't, no. I was very comfortable with it."
7.22 A little later on in cross-examination, the Defence questioned the complainer on the "volatility " of her relationship with the accused, as well as alleged sexual behaviour with someone other than the accused.
7.23 In case 210, which involved a charge of rape, the Defence sought to elicit information concerning the complainer's contraceptive history, her behaviour towards the accused on the occasion of the alleged offence and that she had had an argument with her boyfriend the day before. During cross-examination the Defence began to question the complainer about her alcohol consumption in general, and an argument that she had with a friend in the street, some of which was captured on CCTV:
Defence: "Okay. What we do know that you had a good going argument going, did you not, with [female friend]?"
Complainer: "I remember having an argument with [female friend], yeah."
Defence: "And that involved your, perhaps again to be fair to you influenced by what you'd had to drink, that involved you shouting and swearing at her and such like in the High Street at the time. Do you remember that?"
Complainer: "She would have been shouting and swearing back, we were just playing about like. It was nothing serious."
Defence: "Okay. Were you shouting and swearing and calling her a "fucking bitch"?"
Complainer: "I don't know."
7.24 The Defence asked the complainer several more questions in respect of this suggesting that the fight eventually became physical, at which point the Advocate Depute intervened on the basis that the questioning is not covered by the s.275 application, although the Defence argued that, as this incident and the drinking took place around the same time as the alleged offence it was covered by s.274 (1) (c) and therefore exempted from the prohibitions in this section of the legislation. The court was cleared and there followed protracted discussions on the restrictions in s.274. Whilst the Judge was not entirely convinced of this, he nevertheless allowed the line of questioning to continue:
Judge: "Well I will repel the objection … it seems to me that a lot of this material is already out. There is the fact, I think you're right to say there is some indication on the video of something like this. I have considerable reservations about the "shortly before" point, that seems to be a matter of judgment in each case. But on the whole matter I think it inappropriate to sustain the objection when the matter has gone as far as it has so I'll allow the question."
Defence views about straying beyond parameter set in s.275 applications
7.25 Defence practitioners interviewed emphasized that they were very wary of straying beyond the parameters set by the court in an s.275 application, not least because the trial Judge has a copy of the application and the evidence or questioning that has been allowed:
"I think you have to be very, very careful because this is something which is… it has been written down, the judge has a copy and knows in advance of the trial what has been allowed and what has not been allowed, the Prosecution know that as well and I think it would be very bad practice for somebody to stray outwith that, and really I think somebody would be acting in a quite appalling way if they carried on a cross examination on matters which had actually been refused in an application." (Defence 3)
7.26 But then later in the interview the issue was returned to, with the interviewee noting that there was a temptation to carry on with a fruitful line of questioning, particularly if there was no objection from the other party:
"Having said that, we know what trials are like, sometimes if cross examination was going well and going down a particular route then there's always, it's human nature, there's a temptation to carry on and carry on, I think you can easily see situations where you are tempted to carry on, and sometimes you ask a question and half your eye is on the other side to see are they going to say anything about this or not." (Defence 3)
Disallowed s.275 applications where evidence is subsequently elicited
7.27 In 4 cases where Defence applications had been refused the Defence went on to elicit sexual history or character evidence during the trial (this evidence was sometimes different to that sought in the s.275 application).
7.28 In case 007, discussed in Chapters Four and Five, which involved a young boy, the application sought to lead evidence from his teachers to the effect that he was known to tell frequent lies to an unusual degree. This application was refused by the court. However, the evidence elicited during cross-examination related to bullying experienced by the boy and, in particular, that he had seen a social worker and spoken to a support counsellor about being bullied by other children, but did not use this as an opportunity to mention the alleged abuse which was the subject of the charge. Following an intervention by the Advocate Depute, the Defence justified the questioning in terms of eliciting that the complainer had failed to report the allegations to either of these people, to whom he had been referred in connection with the bullying. The following extract conveys the reasoning behind the Advocates Depute objection:
AD: "I'm quite sure that my friend wouldn't for a moment intentionally go anywhere near the subject matter which was sought to be raised in the s.275 Application but nevertheless there is always the danger that no matter how careful my learned friend is with her questioning that might be the case.…I don't think my objection has been premature because in my submission my Lord I don't think that there is any relevance in exploring the bullying aspect. It doesn't form part of this case and there is no relevance in exploring this matter any further."
Defence: "M'Lord I'm well aware of the restrictions on me in relation to what I can and cannot ask. The matter of bullying was actually mentioned by the boy himself, first of all this morning not in response to any specific question from me. The line that I'm pursuing just now in relation to the people he has spoken to in the matters in issue here and the question I was about to ask and had started asking was "Did he get any help in relation to the bullying? That is all I'm interested in and the relevance of that has got nothing to do with bullying or linking that to sexual abuse or not. It has to do with opportunities to tell people about anything. I have no intentions of taking it any further than "Did he get any help and who it was that gave him help about the bullying?" …given that the allegations against [accused] did not emerge until at least 2 years after he last had contact with the family that it is entirely relevant to ascertain whether there was contact with other persons in authority who were helping this boy with any particular issue that he had. That's as far as I propose to take it and the relevance of it is in relation to his general credibility and failure to mention anything to anybody including his parents until this particular time."
7.29 In light of this explanation the AD withdrew his objection and the Defence continued to question the complainer along the same lines.
Evidence of complainer's alcohol consumption at or around the time of the alleged offence
7.30 It is notable that in a high proportion of cases, including those where objections were made by the Advocate Depute, the Defence attempted to introduce evidence of the complainer's alcohol consumption at or around the time of the alleged offence, in the absence of any application, in addition to other kinds of character or sexual history evidence.
7.31 Several cases sparked debate on one or both of the following matters: first, whether evidence of drinking constituted character evidence and therefore required an application; and second, whether or not evidence of drinking around the time of an alleged offence could be considered to have taken place "shortly before, at the same time as, or shortly after the acts which form part of the subject matter of the charge" and was therefore exempted from the prohibitions by s.274 (1) (c). Whereas some Judges took the view that alcohol consumption on the same evening could be considered so, others were more dubious. It is clearly an area of some dispute.
7.32 In case 099, the Defence made 2 separate s.275 applications. The first, concerning 2 complainers, was very extensive, although much of it was disallowed by the Judge. An aspect of the application which was allowed concerned the alcohol consumption and alleged drunkenness of one of the complainers at the time of the alleged incident, although in the trial, both were asked about their alcohol use on the occasion and the second complainer, in particular, was questioned in detail about her use of a "bottle bomb" in order to consume a large amount of alcohol very quickly.
7.33 In case 121, 2 out of 3 applications submitted by the Defence were refused by the court. The successful application sought to introduce evidence of a history of alcohol consumption and drunkenness on the night in question, but in the trial the Defence also pursued questioning about recreational drug use, which was not objected to.
7.34 Case 231 involved s.275 applications by both the Crown and Defence, neither of which sought to introduce evidence of drinking. During the trial, the Judge intervened in Defence questioning about the complainer's drinking, as he considered it required a s.275 application, although it was eventually decided not to do so, as the evidence had already been disclosed to the jury.
Intervening to restrict sexual history or character evidence: views of practitioners
7.35 Judges took the view that they would always intervene if the Defence strayed beyond the questioning or evidence and limits agreed with respect to an application. Judge 1 noted that the Act had made a difference in practice with respect to judicial intervention
"That would be a clear difference that the  Act has introduced because previously you would take silence as agreement, but assuming I recognised it as an issue of sexual history or bad character I would intervene."
"The legislation says the court shall not allow. That's what s.274 says therefore you should not allow it unless it's been granted. And even if the Crown, if the Crown, even if the Crown didn't object, I would probably say to the Defence, well you will have to make an application under s.275, albeit late, and I will then consider it. I would probably do that partly because again, not so much looking over one's shoulder etc. but at the appeal stage. I mean I know if I was sitting as an appeal Judge and something was just allowed or not objected to, I would want to know why that happened, because it shouldn't. We are supposed to consider these things in writing and so on and so forth." (Judge 2)
"I take the view…and I make it clear that I think I'm entitled to take the view that…the terms of s.274 require me to intervene. The duty is placed in me not to admit or allow the question. So I, that is the way I interpret it. I do not know whether other colleagues take that view. There is a difference of view in general amongst Judges and sheriffs as to whether they should intervene when objectionable evidence is being elicited. Or questioning this on objectionable terms. And I don't shrink from saying there are many instances where I and other Judges would welcome objections being taken. Because you think they should have been taken. Now in some instances you have to sit and bite your tongue. But in this area I'm in no doubt at all that there is a statutory duty in me to intervene. And I will intervene." (Judge 3)
"I think it probably has made me more interventionist on this, I'm not particularly interventionist, especially in criminal trials, I just let them get on with it. But I'm very … I'm just very alert to the duty that is placed on the court by s.274, and feel that it's necessary for me to make sure that the Section is properly implemented." (Judge 4)
7.36 Advocates Depute acknowledged the "temptation" for the Defence to follow up fruitful lines of evidence, but maintained they do object when they consider it necessary to do so:
"If I'm doing one of these trials, I will have read the s.275 application and I will know which bits of it have been granted, they may have all been granted, and I'm alert to that so that if the Defence Counsel does try to deviate I will stand up to object. The Judges, I have to say, are also very aware of this as well and they will stop people too." ( AD 2)
Comparisons with baseline study
7.37 Two of the key differences between the 2002 Act and the 1995 Act, which concern, first, the fact that the Crown now need to make a written s.275 application in advance in order to introduce otherwise restricted evidence, and second, the fact that the scope of the otherwise restricted evidence is now much wider, extending to the complainer's general character or credit, rather than specifically sexual character, makes direct comparison between the 2 pieces of legislation on the use of sexual history and character evidence somewhat problematic.
7.38 An obvious area for comparison is the extent of sexual history and character evidence introduced by the Crown. A key difference between the 2 Acts concerns the requirement that the Crown now need to make s.275 applications. The baseline study found that first, "good" sexual character evidence (for example that the complainer had only ever had one sexual partner, was a faithful wife, was a virgin, etc.), was introduced by the Crown in only a small number of cases (in 5 of the 66 sexual offence trials with applications heard at the High Court). Second, in an equally small number of trials, it was the evidence led by the Crown during the complainer's evidence-in-chief that precipitated or became the starting point for an s.275 application made by the Defence. 35 For the most part, this was evidence concerning prostitution introduced by the Crown in order to establish the context and antecedents to the alleged offence.
7.39 The current study shows that the Crown are introducing sexual history and character evidence to a much greater extent than previously, although Crown applications occur far less frequently than those made by the Defence. Whilst much of the increase can be accounted for by the Crown requirement to make a s.275 application, examination of Crown applications reveal that they are more likely to seek to introduce evidence of a sexual history between the complainer and accused, rather than general character evidence. It is also likely to be the case that, where the Defence make a successful application, the Crown will seek to pre-empt the Defence line by leading evidence on that point, evidence which it might not have elicited in the absence of an application.
7.40 The baseline study found instances in which sexual evidence was introduced in the absence of an s.275 application. For the most part this concerned sexual history of the complainer, most commonly relations between the complainer and accused. It also found instances in which questioning permitted by a s.275 application strayed beyond the boundaries set in the application discussion, as well as a very small number of cases where the Defence managed to introduce sexual evidence without any objection, following an unsuccessful verbal application to do so.
7.41 The fact that the 2002 Act has resulted in the introduction of more sexual history evidence and more character evidence has not gone unrecognized. Most of the practitioners interviewed believed this to be a consequence of the Act. As Advocate Depute 1 said:
"I was looking back at what it said in the annotations, in which I looked at the policy intention, and the Justice Minister said "that it was believed that it was unacceptable for victims to be subjected to unnecessary and irrelevant questioning about their sexual history or character". I think he was right about that, but I think that the legislation has certainly not improved the position, and indeed, has almost guaranteed the victims will be asked about their sexual character. And the reason for that is really 2 fold. First of all, it seems to me to be relatively easy to construct a case to demonstrate, that whatever it is the Defence want to put, has some relevance. And most judges seem to take the view that where what is put can be demonstrated to have some relevance to the question of the trial, that fair trial considerations outweigh, what I would regard as the…rights of the complainer. … And so it's fairly easy provided you go through the hoops and s.275 in the right order. It's fairly easy to persuade a Judge to grant a s.275."
7.42 However, whilst direct comparisons are difficult, some things are clear. Given the significant increase in numbers of applications being made under the 2002 Act, and the very high rate of success of such applications, there is a significant increase in the amount of sexual history evidence being elicited and admitted in sexual offence trials than was previously the case. Scrutiny of application cases also reveals that much more detailed evidence than specified in the written application is pursued by the Defence in the trial.
Comparison of the use of character evidence under the 1995 and 2002 Acts
7.43 Given the widening of the scope of the legislation to include general character evidence, direct comparison with the baseline findings in relation to the inclusion of this type of evidence in trials pre- and post-2002 is not possible. There are, nevertheless, ways of using the baseline study to try to understand the impact of the new legislation on the use of character evidence.
7.44 Drawing on cases which were examined by listening to tapes of the complainer's evidence, it is possible to estimate the frequency of use of character evidence before and after the 2002 Act. For this particular comparative task, however, it does not make sense to separate trials involving s.275 applications from those that did not, since general character evidence did not fall within the scope of the 1995 Act. Rather, we matched the 40 cases scrutinised in detail in the current study, (that is, the 30 retrospective cases and 10 observed trials) with 30 cases from the baseline study. The baseline cases included 20 application cases 36 from one year 1999, and 18 rape or clandestine injury cases without applications from the 3 year period of the baseline research. This yielded a set of cases broadly similar in composition of charges as well as a similar number of cases. The balance between application cases and non-application cases is different, but this is appropriate given the increase in applications under the 2002 legislation.
7.45 Putting questions to the complainer in cross-examination which raised issues concerning her character was very common in the baseline study and occurred in 65% of the application cases scrutinised, and 55% of the non-application case. Appendix 4 lists the kind of evidence that was introduced as character evidence in the current study under the heading General Character of Complainer. This list is fairly comprehensive and covers the kinds of character evidence that was previously being introduced without application.
7.46 As in the current study, questions about drug and alcohol use were very common in the baseline sample. It is important to stress that Defence questioning was not simply establishing memory of events, but rather suggesting a person with a particular lifestyle (e.g. somebody who regularly drinks to excess, somebody who drinks but is under age and gets others to buy drink on their behalf), or more explicitly suggesting somebody who is morally lessened as person because of their consumption of drink or drugs (e.g. being a neglectful mother or a tendency to volatility or violence or some form of sexual or inappropriate behaviour when under the influence of drink or drugs).
7.47 There were also examples of all of the other broad categories of kinds of character evidence listed in Appendix 4. Questions suggesting violence and disorderly conduct included putting to a complainer that she was volatile and asking if she was violent (case 1108), or suggesting she had been a disruptive child. Questions suggesting mental instability included questions about depression and forgetting to take prescribed medication for mental illness. Questions about dishonesty included accusations of lying about issues other than the subject matter of the charge. Dishonesty, drugs and relationships with stigmatised others were all raised in one case when it was put to the complainer that she stole and lied for heroin and that her friends were prison inmates. There were also suggestions about possible reasons for making a false allegation such as wishing to financially "neuter" a former husband and reference to having received compensation for a past incident of abuse creating the alleged incentive to make a false allegation for further financial reward. The only category listed in Appendix 4 not found in this particular set of cases was "rootlessness". In addition, however, the Defence also suggested "bad" character through questions about body tattoos in 2 cases. In one of these this also involved questioning the complainer about body piercings, and shaving her pubic hair.
7.48 In the current study, questioning about character evidence was the most commonly sought type of questioning in applications, accounting for approximately a quarter (24%) of all evidence sought (see Table 4.3 in Chapter Four). More applications sought to introduce character evidence than sexual history evidence, which accounted for 20 percent of all evidence sought. Although direct comparisons about the incidence of "character" evidence are not possible, the introduction of the 2002 Act does not seem to have reduced the incidence of questioning about character, although character is now a subject of applications. Moreover, the requirement of an advance written application in combination with other changes in the legal context mean that more systematic effort is now being made by the Defence to obtain evidence with a bearing on the complainer's character at an early stage of case preparation. In addition, questions about alcohol which allude to a particular type of character, or take on suggestions about lifestyle and morality, continue to be introduced without a s.275 application, and remain common.
7.49 Several interviewees remarked upon the consequences of the widening brought by the provisions of the 2002 Act, believing that there are more applications simply because the scope is wider and both parties are now required to make an application for evidence or questioning that they did not have to make an application for in the past.
7.50 As one Advocate Depute explained, the rather "scatter gun" approach taken by some Defence to ensure that they include all possibly relevant evidence, combined with the need to seek permission to lead character evidence has had 2 major implications: a marked increase in applications, and a potentially more extensive range of character evidence being introduced in the trial:
"I think from a Defence perspective, there have been no real guidelines in case law as yet as to what sort of matters should be covered and what shouldn't and we all live in a back covering age these days, including Defence Counsel, so I think that's part of the reason why they take this, what I describe as scatter gun approach, because they don't want to miss something out and, okay, if a Judge says no, that's unnecessary well, that's fine. They can't then be criticised by their client at a later stage for not having raised something in a s.275 application and then not being allowed to raise something at trial. So I think that's part of the reason for the slightly wide approach that they're taking." ( AD 2)
7.51 Some interviewees saw some advantages for the Crown in the widening of scope, but also registered concern that, in evidential terms, character evidence tends to be collateral material that is not generally admissible:
"It probably operates to the advantage of the Crown. Whether that is necessarily a good thing I'm not entirely convinced. I can understand the purpose of all this is to stop a routine dragging up of sexual history of usually a woman because that's not relevant in terms of deciding guilt or innocence neither is a more general attack on character I mean ignoring this legislation just looking at the laws of evidence this is collateral material and collateral material has never been admissible as proof of something directly in issue so that the fact that someone has a propensity to lie about things in the past doesn't mean that they are necessarily lying here and the trouble with that is it creates for the fact finder whether it is a Sheriff sitting alone or a jury it creates a diversion which is presumably the purpose behind the Defence seeking this so from an advantage point of view it works better I think for the Crown, the Defence would want to rubbish the credibility of a witness but there are examples where that might be brought to mind with a relevant aspect but its kind of hard to see." ( AD 4)
7.52 In all but a few exceptions, all evidence allowed in the s.275 application was introduced in the trial, usually during cross-examination of the complainer. Scrutiny of cases also revealed that the evidence or questioning tended to be in more detail than outlined in the written application.
7.53 The "belt and braces" approach to drafting s.275 applications, referred to by some Defence interviewees, whereby every possible aspect of questioning or evidence was included in an application, inevitably meant that complainers were cross-examined in detail and extensively on a range of sexual history and character matters.
7.54 Defence practitioners emphasized that they were wary of straying beyond the parameters set by the court in an s.275 application, not least because the trial Judge had a copy of the application and the evidence or questioning that had been allowed. Judges took the view that they would always intervene if the Defence strayed beyond the questioning or evidence and limits agreed with respect to an application.
7.55 Just under half (14) of the 32 observed trials with s.275 applications involved some evidence or questioning being led during the trial which had not been explicitly agreed in the s.275 application. This included cases where the evidence that was subsequently elicited had been either specifically disallowed or strayed over the boundaries of questioning or evidence set by the court in the preliminary hearing. Moreover, following the introduction of restricted or specifically prohibited evidence, objections by the other party and/or interventions by the court occurred infrequently. There is clearly a disjunction between what the Judges and Defence lawyers believe to be the case, and the research findings on these points. That practitioner accounts are belied by the research data is important on several levels, not least that what practitioners believe to be the case may turn out not to be.
7.56 The issue of alcohol consumption by the complainer was commonly raised by the Defence, both in cases where this was the subject of a s.275 application and also in cases where it was not. This sparked debate in some trials about 2 issues relating to alcohol consumption. First, whether evidence of a history of drinking on the part of the complainer constituted character evidence that required a s.275 application, or whether it was to be considered collateral material. Second, whether or not evidence of drinking around the time of an alleged offence could be considered to have taken place "shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge" and is struck at by s.274 (1) (c). Whereas some Judges took the view that alcohol consumption on the same evening could be considered as occurring at the same time, others disagreed.
7.57 Given the significant increase in numbers of applications being made under the 2002 Act, and the very high rate of success of such applications, there was a significant increase in the amount of sexual history evidence being elicited and admitted in sexual offence trials than was previously the case under the 1995 Act. Furthermore, the widening of the scope of the Act may have led to more character evidence than previously, although this is difficult to quantify as a like for like comparison under the 2 pieces of legislation is not possible. In comparison with the baseline study, the Crown was introducing sexual history and character evidence to a much greater extent than previously, possibly due to the requirement of making a s.275 application.