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REDRESSING THE BALANCE
Cross-Examination in Rape and Sexual Offence Trials
A Pre-Legislative Consultation Document
INTRODUCTION
- In June of this year the Scottish Executive made clear its commitment to
bringing forward proposals to change certain aspects of the law of evidence
in relation to rape and other sexual offences. This paper contains these proposals.
It covers two specific issues:
- cross-examination of a complainer by an accused personally;
- the admissibility of evidence about the complainer’s sexual history
or character.
Background
- In September 1998 the Scottish Office published "Towards a Just Conclusion
- Vulnerable and Intimidated Witness in Scottish Criminal and Civil Cases".
It described the help given at that time to vulnerable and intimidated witnesses
in Scotland and made some proposals for changes. In June 2000 the Scottish
Executive published an Action Plan presenting the results of the "Towards
a Just Conclusion" consultation, providing information about progress
which had been made to date and setting a timetable for the achievement of
the remaining recommendations. In the period between the publication of "Towards
a Just Conclusion" and the Action Plan, public debate on issues relating
to the treatment of witnesses in sex offence cases, which "Towards a
Just Conclusion" had not specifically dealt with, was fuelled by two
cases in each of which an accused, who was charged with a sexual offence,
chose not to have legal representation and to conduct the cross-examination
of the complainer personally.
- The Action Plan accordingly acknowledged that further work had to be done
to examine the law and procedure in relation to how complainers in sex offence
cases, and vulnerable witnesses generally, were treated when giving evidence
in court.
Sexual Offence Cases
- This paper takes forward the first part of that work. It examines a range
of options for change in the two areas mentioned in paragraph 1, makes
proposals for some specific changes and seeks views from all interested parties.
- It is important to note that this paper confines itself to proposing changes
in the law of evidence and criminal procedure in relation to sexual offences,
and some directly related matters. It does not deal with any of the following:-
- The definition of a "vulnerable person" in terms of the current
legislation or the availability to such individuals of special measures to
help them to give evidence in court. These matters will be dealt with in a
separate consultation paper to be issued early next year.
- Witness support services. These are the subject of separate work undertaken
by both the Scottish Executive and Crown Office.
- The definition of particular sexual offences, such as rape, although the
issue of consent as a defence in relation to such offences is discussed.
Terminology
- We are conscious that rape and other sexual offences present very emotive
issues, both for men and women, and have therefore tried, in discussing these
difficult issues, to use terminology which is as neutral as possible.
- We have therefore chosen to refer throughout to a witness who is the alleged
victim of a rape or other sexual offence as "the complainer", since
this is the terminology used by the current Scottish legislation. The equivalent
English and Canadian legislation (to which we refer later) both use the term
"complainant". We refer to the person charged with the offence as
"the accused".
- In referring to the complainer, we have however used the words "she"
and "her", and in referring to the accused the words "he",
"him" and "his", rather than use the cumbersome "he
or she" etc. It is not intended by this usage to suggest that men are
never the victims of sexual crime, and women are never the perpetrators. We
fully acknowledge that that is not the case. The terminology does, however,
reflect the statistical reality.
- We have also used the term "lawyer" as a shorthand term to refer
to any legal representative of the accused. It is intended that this should
cover solicitors, advocates and solicitor advocates, in each case whether
acting alone or as part of a team.
Acknowledgements
- During the development of the proposals which this paper contains, a number
of informal discussions were held with representatives of various groups who
have an interest in the issues covered. We found these extremely helpful and
would like to express our thanks to all those who participated in these meetings.
We hope that by proceeding in this way it has been possible to take account
of concerns which have been expressed on all sides and that the constructive
spirit which the meetings were intended to foster will be a feature of the
continuing debate.
Responses
- We welcome all views and comments. These should be sent by 31 January 2001,
to:
Steve McCourt
Scottish Executive Justice Department
Hayweight House
23 Lauriston Street
Edinburgh EH3 9DQ
Tel: 0131-221-6806
Fax: 0131-221-6894
E-mail: balance@scotland.gsi.gov.uk
- It is normal practice in Scottish Executive consultations, in order to inform
the debate, for copies of all responses to be made available to the public.
It is, however, appreciated that this consultation covers particularly sensitive
issues and that some respondents may prefer all or part of their reply to
remain confidential. All requests from respondents for such confidentiality
will be respected.
- This paper is also published in electronic form on the Scottish Executive
web-site (www.Scotland.gov.uk) and
responses may be made using the on-line response form attached to the electronic
version.
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