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REDRESSING THE BALANCE
Cross-Examination in Rape and Sexual Offence Trials
A Pre-Legislative Consultation Document

 

EVIDENCE OF SEXUAL HISTORY AND CHARACTER

83. Rape crisis centres have estimated that around 80% of women contacting them for support following a sexual assault do not report the incident to the police. In addition the conviction rate, ie the ratio of the number of convictions to the number of crimes recorded, is lower for sexual assaults (including rape) than for other crimes of violence. Many people feel that the criminal justice system fails to encourage the reporting of sexual crime and fails to deal with sexual crimes with the same effectiveness as it deals with other crimes of violence.
84. Fear about how the victim is likely to be treated both during the investigation of the crime and during any trial, and perceptions that the criminal justice system does not deal with sexual crime effectively, may be factors contributing to the low reporting rate. The victim may feel that a great deal of critical attention will focus, at all stages, and particularly during the trial, on her and on her behaviour, rather than on the accused, to such an extent that she fears being "re-victimised" by the process. Victims of sexual crime often say that they feel that it is they, not the accused, who are on trial. The way in which complainers are treated in court might be a contributory factor to the relatively low rate of convictions in sexual crimes.
85. We think that it is worthwhile trying to analyse why so much attention is focused on the complainer and her behaviour (rather than the accused’s) at a trial for a sexual offence. Such an analysis may help us to adjust the law of evidence in such a way as both to reduce the complainer’s feelings of re-victimisation, and so encourage the reporting of sexual crime, and to increase the likelihood that those who are in fact guilty of sexual offences will be convicted.
86. We would suggest that there are essentially two groups of factors which contribute to the likelihood of a sexual offence trial turning into a trial of the complainer rather than of the accused. The factors are linked to one another. The first group relates to the very nature of sexual offences and the evidential difficulties which arise in relation to trials of such offences. The second concerns the effects of various myths and prejudices about sexual behaviour and morality, particularly as regards women, which still pervade our society.

The Nature of Sexual Offences Themselves

87. Sexual offences have particular elements which clearly distinguish them from other types of crime. These give rise to difficulties of proof, and opportunities for the real issues to become obscured.

• In no other crimes does the consent of the alleged victim play such a pivotal role. Evidence of the absence of consent will be an essential part of establishing the crime in most instances; conversely the existence of the consent of the alleged victim to the acts alleged will, in most sexual offence cases, be a complete defence.
• There is frequently a pre-existing relationship between complainer and accused which can divert attention from and cloud the issues of fact which relate to the crime alleged.
• Sexual offences mostly take place in private and there will usually be no eyewitnesses other than the complainer and the accused.
• There is often delay in reporting which may lead to the loss of evidence.
• Even where there is physical evidence this may be ambiguous or be explainable on a number of grounds which would not be the basis of criminal conduct.
• There is always a natural embarrassment in dealing with sexual matters in a public context.

88. Clearly, the fact that the consent or otherwise of the complainer is under scrutiny from the outset will lead directly to a diversion of attention from what the accused said or did, to what the complainer said or did (or, frequently, what she did not say or do). Although we note above that the existence of consent on the part of the complainer will be a complete defence, the accused never requires to prove that consent existed. On the contrary, the Crown will normally have to prove that it was absent. Consequently, if the accused can raise in the minds of the jury a reasonable possibility of consent having existed, they must acquit him. In fact, as the law stands, the accused does not even have to go that far. All he has to do is to convince the jury that there is a reasonable possibility that he genuinely believed that consent existed, even if he had no reasonable grounds for so believing⁶.
89. In many cases, and particularly those where there is either a previous relationship or some kind of previous contact between complainer and accused, he will do so by trying to show how the complainer’s behaviour led him to believe that she consented, expressly or by implication, or at least that she was not unwilling - and it is in doing this that he is most likely to try to take advantage of any prejudices about sexual behaviour which the judge or jury may hold, however unconsciously.

Myths and Prejudices in Sexual Offences

90. We would suggest that the most pervasive myths about sexual behaviour can be summarised rather crudely as follows:-

• Someone who has engaged in sexual behaviour with persons A and B is likely to agree to engage in sexual behaviour with person C;
• Someone who is sexually promiscuous has less right than someone who is not to choose who they engage in sexual behaviour with;
• Someone who is sexually promiscuous is generally less trustworthy and therefore more likely to be lying;
• Women have a tendency to "lead men on" and are therefore to blame when men fail to resist their physical impulses;
• When a woman says "no" she doesn’t mean it; and
• False allegations of rape or sexual assault are more common than false allegations of other crimes.

91. These prejudices are based on antiquated notions about sexual morality which have no place in a modern inclusive society. They are also both illogical and at odds with any system of morality which places a value on the individual’s right to self-determination. If these myths and prejudices are propounded at trial, it not only leads to complainers being treated with a lack of respect and, in the worst cases, being subjected to humiliation. It also leads to a distortion of the real issues and lessens the likelihood of a just conclusion being reached. The Executive is therefore determined that such prejudices should not continue to find a home in the Scottish criminal justice system.

The Current Law

92. The current law restricting the extent to which evidence about the complainer’s sexual character or previous sexual behaviour is admissible is contained in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. These provisions were introduced in 1985 following a report by the Scottish Law Commission⁷ which acknowledged that there was widespread concern about the way in which complainers were treated in rape trials. The provisions largely follow the recommendations of the Scottish Law Commission. Concern continues to be expressed despite the reform.
93. The format of the current restriction, which was followed in section 41 of the Youth Justice and Criminal Evidence Act 1999 (the equivalent English provisions), although adopting a more precise and detailed formulation⁸, is to prescribe a basic rule preventing such questioning and then to set out a number of exceptions. Application must be made to the court to allow the questioning and the court has to be satisfied that the evidence or questioning falls within one of the exceptions. The court also has a discretion at any time to limit the extent of questioning or evidence where it has been allowed. The restrictions do not apply to the Crown.
94. The questioning which is not allowed is any questioning designed to elicit evidence which shows or tends to show that the complainer:-

(a) is not of good character in relation to sexual matters;

(b) is a prostitute or an associate of prostitutes; or

(c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.

The section then lists the offences to which the provision applies. Essentially it applies to all heterosexual and homosexual sexual offences, and in both summary and solemn procedure.

95. The exceptions, where the court may allow the questioning, are where the court is satisfied on one or more of the following:

(a) that the questioning is designed to explain or rebut evidence led by the prosecution;

(b) that the questioning relates to other sexual behaviour of the complainer which took place on the same occasion as that forming the subject matter of the charge;

(c) that the question relates to other sexual behaviour of the complainer which is relevant to the defence of incrimination; or

(d) that it would be contrary to the interests of justice to exclude it.

96. Where the accused has demonstrated to the satisfaction of the court that the evidence or questioning concerned falls within one of the exceptions, the court must allow it, but can thereafter limit as it thinks fit the extent of the questions.

Criticisms of the Current Law

97. A number of criticisms have been levelled both at the terms of the legislation and the way it can sometimes operate in practice. Concerns have been expressed that the exceptions to the general prohibition are so widely expressed and open to interpretation as almost to render the basic prohibition ineffective⁹. This could particularly be said to the case in relation to the "interests of justice" exception, and the "explain or rebut" exception.
98. Secondly, it has been suggested that since the prohibition does not apply to evidence led by the Crown, evidence they introduce which is capable of being construed (sometimes inadvertently) as relating to previous sexual behaviour (or sometimes the lack of it) of the complainer, may give the defence an opportunity to make use of that evidence in some way the Crown had not anticipated. This might happen by the defence applying to use the "explain or rebut" exception but it may also be introduced without such an application being made at all. An example which has been quoted to us, of a real case, was where the Crown led evidence to the effect that the complainer was a lesbian, as tending to confirm that she would have been unlikely to consent to sexual intercourse with the (male) accused. The defence proceeded to use this to bring in evidence to suggest that the complainer had a promiscuous and chaotic sexual lifestyle, with a view to reducing the complainer’s credibility in general terms, and playing on any prejudices the judge or jury might have had about lesbians.
99. Thirdly, there is some doubt as to whether the provisions are properly observed in all cases. Research has shown that, in a proportion of both summary and solemn cases, evidence which the provisions are designed to exclude is in fact admitted without any application having been made¹⁰. The same research demonstrated that in some cases, when an application was granted, the lines of questioning which followed thereafter went wider than was indicated during the application, without either the court or the prosecution intervening to object. The provisions were therefore rendered ineffective in these cases.
100. A further objection is that the current statutory provisions simply do not deal clearly enough with the real issue, ie the relevance to the charges libelled of the evidence sought to be introduced. Other than in the case of incrimination, there is no explicit statutory requirement on the accused to demonstrate the relevance of the evidence which he wishes to introduce to any of the issues requiring to be proved at the trial. In addition, even if only relevant evidence is admitted, the provisions take no account of any prejudicial effect it may have, and do not prevent it being used in a way which is not legitimate. The defence may accordingly suggest invalid inferences to the jury on the basis of the evidence, and play on the kind of doubtful presumptions and prejudices which judges and jury members may hold, which we refer to above.
101. In any criminal trial the basic principle applies that any evidence which is relevant should be admitted, and evidence which is not relevant should be excluded, as otherwise it may tend to cloud the issues and mislead. There may, however, be good reasons for excluding some evidence which could be considered relevant. For example, evidence obtained under duress, or in some other way that society regards as unfair, is frequently held to be inadmissible. Similarly, evidence - such as details of an accused’s previous convictions - which may have a prejudicial effect on the way the judge or jury regards the accused, is normally excluded.
102. This latter principle could equally be applied to evidence about the complainer’s sexual history or character. The Scottish Law Commission did acknowledge that evidence of "bad character" can divert the jury from the proper issues in a case¹¹. Their report did not however fully address the issue of the prejudicial nature of such evidence, nor do the statutory provisions make any attempt to do so. The statutory provisions in effect allow the court to admit evidence which may have such prejudicial effect as regards the complainer, without having regard to whether doing so may lead to an unjust outcome.
103. A further issue relates to the central role which the credibility or otherwise of the complainer plays in any trial for a sexual offence. Because the question of consent is frequently the only issue and is always absolutely central, the credibility of the complainer is crucial if the Crown is to secure a conviction. So the credibility of the complainer is virtually always the main focus of attack by the defence.
104. We fully accept that the credibility of the complainer is a central issue and that in many instances it is the central issue. There can be no objection in principle to the complainer’s credibility being tested, as with any witness. There is, however, an issue as to what is acceptable in testing credibility. Research has shown that in trials for sexual offences, the defence often resorts to innuendo and subtle character attacks which are intended to create an atmosphere of bad character and "easy virtue" around the complainer with (presumably) the intention of making her appear generally less credible, but without producing evidence that she has ever behaved dishonestly¹². We do not think this is a legitimate tactic, but as the law stands at present, it is difficult to prevent.

Objectives

105. In considering what changes to the law might be appropriate, we have accordingly had two basic objectives:

• To ensure that evidence of the complainer’s sexual history and/or her character is only admitted when its relevance to the crime libelled has been demonstrated;
• To ensure that such evidence is not admitted if it is likely to cloud the issues unnecessarily or cause undue prejudice and accordingly distort the judicial process.

PROPOSALS FOR CHANGE

Ensuring Relevancy and Probative Value

106. Analysis of the issues at stake in this discussion, and of the difficulties inherent in legislation designed to protect the witness from intrusive questioning, are usefully and clearly provided by the Canadian case of R -v- Seaboyer, R -v- Gayme¹³, in which the Supreme Court of Canada held that Canada’s "rape shield" legislation was contrary to the Canadian Charter of Rights and Freedoms. The Canadian Charter is very similar in its terms to the European Convention on Human Rights and the Canadian legislation was at that time similar to the approach of the current Scottish legislation. It started with a basic prohibition against certain types of evidence being introduced, regardless of the purpose, and then allowed a limited number of exceptions. The leading judgement in the case, by McLachlin J, identified two basic flaws in this type of legislation.
107. The first flaw is its failure to distinguish between the different purposes for which evidence may be tendered. The legislation may accordingly misdefine the evil to be addressed as evidence of sexual activity on the part of the complainer (other than during the course of the crime alleged) being admitted at all, whereas it should in fact be addressing the evil of the misuse of evidence about the complainer’s sexual activity for irrelevant and misleading purposes, such as to attack the credibility of the complainer generally, and to arouse prejudice against her.
108. The second flaw is that it adopts a "pigeonhole" approach, which is incapable of dealing adequately with the basic problem of deciding whether the evidence is truly relevant and not irrelevant or misleading. It tries to predict relevancy in advance on the basis of a series of categories, which inevitably means that it is likely to exclude something which may in fact be relevant, since it is impossible to predict all the categories or situations in which a piece of evidence may be relevant.
109. The existing Scottish legislation has not gone quite as far as the Canadian legislation which was struck down. The "interests of justice" exception in section 275 of the 1995 Act is intended to deal precisely with the problem that all categories or types of evidence which may be relevant cannot be predicted in advance. It therefore leaves a discretion to the court to decide that an item of evidence may be relevant in a particular case, or not in another case. The difficulty with this approach however is that the court is given no indication in the legislation as to what ought to be the guiding principles on which it makes its decision as to relevancy. In allowing too wide a discretion the whole purpose of the legislation may be undermined, since judges are likely to be unwilling to exclude any evidence which may be even slightly relevant, even though its prejudicial effect may be easily identifiable.
110. One way of dealing with this difficulty is to require the court to assess the probative value of the evidence as against its possibly prejudicial or misleading effect. This is the approach which has now been adopted in Canada.
111. An extract from the Canadian Criminal Code is attached to this paper. The approach adopted by section S276(2) of the code is to prohibit the introduction of evidence of any sexual activity engaged in by the complainer, other than that forming the subject matter of the charge, unless the court has decided, following a written application, that the evidence is of specific instances of sexual activity, is relevant to an issue at the trial, and has significant probative value which is not substantially outweighed by the danger of prejudice to the proper administration of justice. In determining admissibility, the judge must take a range of factors, including the interests of the complainer, into account.
112. We feel that this approach has much to recommend it, focussing as it does on what we have already identified as the two essential aims, ensuring relevancy and reducing the risk of prejudice. It does not attempt to predict in advance what types of evidence will be either irrelevant or unduly prejudicial, leaving that to the court to determine as it sees fit, within clear boundaries and according to statutorily defined criteria. The factors which the Canadian Courts have to take into account are listed fully. Not all of these may be acceptable here.

Question 9 (a) Do you agree with the type of approach adopted by the Canadian Criminal Code to questions of relevance and probative value? (b) If a similar approach were to be adopted here, what factors should the court take into account in deciding admissibility?

 

Preventing Evidence Being Misused

113. The Canadian Code also, in section 276(1), attempts to deal with how evidence of sexual activity by the complainer (other than that forming part of the charge) is to be used, if it is admitted. It declares that such evidence is simply not to be used to support an inference that, by reason of the sexual nature of the activity, the complainant is more likely to have consented to the sexual activity in question, or to support an inference that she is less worthy of belief. We would suggest that this provision goes too far in one respect and not far enough in another.
114. In declaring that evidence of other sexual activity is simply not to be used in relation to an issue of consent, we think it goes too far. Although in general we think such evidence is unlikely to be relevant, and is more likely to be used as a way of generally undermining the character and credibility of the complainer, we think that there may be circumstances in which it will be relevant and that these can only be determined on a case-by-case basis. If the court is required in doing so to weigh up the possibly prejudicial effect of the evidence in question this should still provide protection to the witness against the evidence being misused.
115. On the other hand, in referring only to the use of evidence of sexual activity in relation to whether the witness is worthy of belief, we think the provision does not go far enough. It does not prohibit the kind of "subtle character attacks" which research has identified as being used to undermine the credibility of the witness. This can also be said to be a failing of the current Scottish legislation, which restricts its prohibition against questioning tending to show that the complainer is not of good character to her character "in relation to sexual matters". These five words were not part of the original Bill drafted by the Scottish Law Commission, but were added during the passage of the legislation through Parliament. The reason for the original wording was that it is very difficult to distinguish between a person’s character in sexual matters and their character in general. The result is that while questioning specifically in relation to sexual character may be excluded, questioning can slip through which, although not specifically related to a witness’s sexual morals, is intended to suggest "looseness of character" in general¹⁴. The defence may then try to use such evidence to undermine the credibility of the witness, by attacking her general character, without being seen clearly to be doing so.
116. An alternative formulation would be to the effect that evidence which tends to show that the complainer is not of good character will be excluded, unless the accused can demonstrate to the court:

(a) that such evidence is relevant to the issue of whether the complainer is worthy of belief; and

(b) is of specific instances of behaviour by the complainer tending to cast doubts on her honesty or to show the existence of a motive to fabricate a false allegation.

Do you agree that evidence of complainer’s "bad character" should only be admitted where: (a) it is relevant to the issue of whether the complainer is worthy of belief; and (b) it is of specific instances of behaviour casting doubt on the complainer’s honesty or showing a motive to fabricate allegations?

 

Application and Reasons for Granting to be Given in Writing

117. At present an application for the admission of evidence as to the complainer’s sexual history or character is simply made orally during the course of the trial. Reasons for the application must be given, but because these need not be in writing, and because of the general nature of the exceptions to the rule, the issue of relevance and the extent of the evidence sought to be admitted may not be examined in any detail. Nor is there any statutory requirement on the court to state clearly its reasons for admitting such evidence.
118. We think that there may be merits in requiring such applications to be made in writing and for the court to be required by statute to state what its reasons are for admitting such evidence, to what issues it is considered relevant, the nature or extent of the evidence to be admitted, and the use to which it is to be put. If nothing else, requiring written applications and reasons should help to focus the issues of relevancy and possible prejudice more clearly, and prevent evidence admitted for one purpose thereafter being used for another invalid one.

Question 11 (a) Should applications for the admission of sexual history and character evidence be made in writing? (b) Should the court be required to state its reasons for admitting such evidence?

 

Trial within a Trial

119. At present an application is made without the evidence which is sought to be introduced being examined by the court other than in the abstract. It may therefore be difficult for the court to predict how the line of questioning which it is being asked to permit will develop, or to intervene when the line of questioning starts to go further than it had intended to permit, without being perhaps seen to be being unduly restrictive to the defence. There may therefore be something to be said for having a "trial within a trial", whereby the court hears not only the argument, but the evidence itself, and can then make up its mind as to its value and admissibility. The court could also, during that process, make clear the extent to which it would allow any questioning and draw clear boundaries which the defence would have to keep to if the evidence was re-heard in front of the jury.
120. Clearly this could be time-consuming and may also involve the complainer in having to give the same evidence twice. It might also be said that it would allow the complainer to "reconstruct" her answers, knowing the questions she will be asked if the questioning is admitted and it will in addition be a rehearsal for the defence. On the other hand, ensuring that only evidence of sufficient relevance went to the jury, while keeping the prejudicial effect of such evidence under control, could have considerable advantages for the fairness of the trial. The witness may have to give evidence twice, but at least the first time would be outwith the presence of the jury and may be less intimidating and public (particularly if specific provision was made for this part of the trial to be held in private). On balance we think that the potential advantages of such a process are considerable.
121. The Canadian Criminal Code makes such a provision, but does not require the complainer to give evidence at the hearing. If she chooses not to appear, it may be more difficult for the court to make a fully informed judgement as to whether the evidence in question should be admitted, depending of course on what it is. The court may then be more likely to admit the evidence than take the risk of excluding it on the basis of being "on the safe side" as regards the accused. It may be putting an unnecessary burden on the complainer to require her to choose whether to give evidence at the "trial within a trial", since she will have no way of knowing how her appearing, or otherwise, is likely to affect the course of the trial or how she is treated during it.
122. In a summary trial, there is of course no jury and the sheriff is required to determine the facts as well as apply the law. If the procedure were to be applied in summary cases, the evidence would only have to be heard once, but the sheriff would, if he or she decided following the hearing of the evidence that it should not be admitted, be required thereafter to try to exclude such evidence from his or her mind in coming to a verdict. We do not think that there is any reason to doubt that sheriffs would be well able to do this, although there could be no absolute guarantee that no sheriff would ever be influenced by the hearing of evidence which was legally inadmissible. There may therefore be an argument for restricting the procedure of "trial within a trial", if it is adopted, to solemn cases, and in summary cases for the matter of admissibility to be determined on the basis of legal submissions alone.

 

Question 12 (a) Do you consider that there should be a "trial within a trial" for the purpose of determining whether evidence of the complainer’s sexual history and character is admissible? (b) If so, should the complainer be a compellable witness at such a hearing? (c) Should the procedure, if it is adopted, be available in both solemn and summary cases?

 

The Crown Exemption

123. Under the current provisions, the restrictions as to the introduction of evidence about the complainer’s sexual history or character do not apply to the Crown. The Scottish Law Commission considered that the Crown should be exempt from the general rule regarding prohibition because they were not aware of any problems having arisen as a result of evidence led or questions asked by Crown and they did not anticipate any such problems arising in the future. Subsequent research has suggested that this may have been too optimistic a view¹⁵.
124. It may be that the Crown does not always consider fully how evidence of the complainer’s sexual history or character might be used by the defence, or whether such evidence is really relevant. There may therefore be cases where such evidence is introduced by the Crown, with the best of intentions, but the evidence is thereafter used by the defence to probe more deeply into aspects of the complainer’s previous sexual experience or character than the Crown had anticipated.
125. Abolishing the Crown exemption would mean that it would be necessary for the Crown, as well as the defence, to explain why any evidence relating to the complainer’s sexual history or character which it sought to have admitted was relevant.
126. Requiring the Crown to apply to introduce sexual history or character evidence may however handicap the Crown in the way in which it presents the case and reduce the effectiveness of certain strategies. Anticipated lines of questioning may be, for example, if the complainer is 17 or 18 years old, that she had consensual intercourse because she was curious about sex, or that the complainer found the accused overwhelmingly sexually attractive. In order to defuse suggestions of this sort the Crown might seek to elicit evidence from the complainer. To require the Crown to explain in advance that it wishes to ask her about, for example, her relationship with her boyfriend, could, in effect, give the defence notice to prepare an alternative line of defence. On the other hand, it can be said that whether or not the young woman had a sexual relationship with anyone else is simply irrelevant to whether she was sexually assaulted on this occasion.
127. It must always be a difficult judgement for the Crown as to whether, or to what extent, to bring in evidence about the complainer’s sexual history or character. It has to be borne in mind that the Crown represents the public interest, not the complainer, and therefore has a duty to be candid and to present all the relevant facts to the court, whether or not they support a conviction. The Crown may also anticipate that evidence of the complainer’s sexual history or character is likely in any case to be admitted on application by the defence, and may consider that it would be better for such evidence to be introduced by the Crown, in the first instance, in the hope that it can be presented in such a way as to defuse or minimise its effect.
128. As stated at paragraph 105 above, it is our aim that reforms in this area should achieve the objective of ensuring that only relevant evidence is admitted, and that any potentially prejudicial effect of evidence about the complainer’s sexual history or character should be weighed against its relevance in assessing whether it should be admitted. The question then arises as to who is to adjudicate on this issue in the case of evidence adduced by the Crown. Retaining the Crown exemption would leave the obligation of making this judgement in the hands of the Crown, in the first instance at least. The defence could, of course, object to the relevance of any evidence adduced by the Crown, but would be unlikely to do so if it sees an opportunity to use that evidence for its own purposes. The Court itself might also, on occasion, intervene. Abolishing the Crown exemption would give the task of adjudicating on this issue to the Court in all cases, but may risk limiting the ability of the Crown to present the prosecution case in the way it considers most appropriate. The views of respondents on the issue are welcomed.

Question 13 Should the Crown exemption be retained or abolished?

129. The proposals for change suggested above have all related to the issues of relevancy of evidence, and limiting the risk of unduly prejudicial evidence being admitted. Two other, more general proposals, will now be considered.

Special Defence

130. There are certain types of defence which are referred to as "special defences". These are defences which the accused is not permitted to put forward unless intimation of his intention to do so is given to the Crown prior to the trial commencing. There is no authoritative list of what are the special defences, but they are generally accepted to be as follows:-

• alibi
• insanity
• incrimination
• self-defence

It is also possible that the defences of somnambulism and automatism should be treated as special defences.

131. It should be clearly understood that the effect of a special defence is not to shift the burden of proof onto the defence to show that the accused is innocent of the crime, but simply to narrow the issues. In many sexual offence trials, particularly those where the accused and the complainer are not strangers, the defence line will be that the complainer consented to the sexual behaviour alleged in the charge. Since the issue of consent is in these cases the central one, we consider it appropriate that this should be made clear at the outset.
132. If the complainer knew in advance that the basic issue was whether or not she consented, or at least whether the accused believed she did, she would be likely to be better prepared psychologically for the cross-examination. She would at least not be taken by surprise when questions seeking to show that she did in fact consent, or had led the accused to think she had, were put to her. In non-stranger rape cases however, this is unlikely to come as much of a surprise to the complainer in any case.
133. It might be hoped that, since the accused in lodging a special defence of consent is in effect admitting that the sexual behaviour alleged took place, then, assuming that both the prosecution and defence fulfil their duty under section 257 of the Criminal Procedure (Scotland) Act 1995 to agree as much evidence as possible in advance, the evidence of the sexual behaviour could be agreed in writing before the start of the trial. The hope would be that this would, at least to some extent, prevent the complainer having to give evidence about intimate personal matters in open court. We are not however optimistic that these hopes would be fulfilled. The Crown will still require to show that consent was absent, and the accused will still be disputing the complainer’s version of how the facts alleged came to happen. We therefore think that even with consent as a special defence, it is still likely that the complainer will need to give evidence - and be cross-examined - on the whole circumstances of the offence.
134. In principle, if consent were a special defence, and the accused did not intimate it in advance, he ought to be prevented from pursuing a line of questioning which tended to show that as a defence, although the court would be likely to allow such a line of questioning if the accused could show any reason, however small, why the defence had not been intimated in advance. To prevent him from doing so would run the risk of being seen to be unfair and oppressive and possibly lead to the overturning of any conviction on appeal. In theory however, where such a defence was not intimated, lines of questioning which focused on the complainer’s behaviour ought to be excluded completely, except where incrimination is alleged, since such questioning could only be relevant to show that she had behaved in such a way as to indicate her consent to the accused or made him believe that she consented. The accused would at least not be able to wait until the prosecution had laid out its case before deciding what line of defence to follow, but would have to consider in advance what his defence is, and instruct his lawyer appropriately, taking account of the implications of not intimating a special defence of consent in advance.

Question 14 Should consent be a special defence in sexual offence cases?

 

Disclosure of Previous Convictions of Accused

135. 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 is open to the prosecution to retaliate by attacking the character of the accused. This means that where the defence seeks 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 does not appear to happen to a great extent. The reason that information about previous convictions is normally withheld from the jury is of course that it may prejudice them against the accused. They may assume that if he has committed a similar offence on previous occasions he is more likely to have done so on this occasion.
136. This is, however, exactly the line the accused is taking in bringing up the complainer’s past behaviour. If the accused’s line of defence is that because the witness has slept with other men in the past, or has engaged with him in sexual behaviour in the past, she is more likely to have consented on the occasion in question, it is difficult to distinguish the logic of this argument from the logic of saying that if he has committed a sexual offence on a previous occasion, he is likely to have done so on this occasion. We would therefore propose 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 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.
137. Whether disclosure should also extend to allowing evidence of previous occasions on which the accused has been charged, but not convicted, of a sexual offence, is a more difficult question. In a recent English case¹⁶, the House of Lords held that evidence of previous occasions on which the accused had been charged, but acquitted, of rape was relevant and admissible as "similar fact" evidence. It may be that the same approach could be adopted here in particular instances, leaving automatic statutory disclosure to apply to cases in which the accused actually has a conviction for a similar offence.
138. It might also be argued that since rape and many other sexual offences are essentially crimes of violence, previous convictions for assault could be just as relevant as previous convictions for, say, shameless indecency. The views of respondents are sought as to how far disclosure of previous convictions should extend.

Question 15 (a) Do you agree that the granting of an application to admit evidence about the complainerÕs sexual history or character should result automatically in the disclosure of any previous sexual offence convictions of the accused? (b) Should disclosure extend to sexual offences with which the accused has been charged but not convicted? (c) Should it extend to convictions for crimes of violence?

 

ECHR

139. We do not consider that any of the proposals in paragraphs 106-138 are likely to be incompatible with the European Convention.

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