Improving victims' experiences of the justice system: consultation

Chapter Six: Introduction of independent legal representation for complainers in sexual offence cases

Background

Our Vision for Justice in Scotland sets out our priorities which are focused on delivering person-centred and trauma-informed practices across the justice sector, including taking greater action to hear victims' voices.

This includes our commitment to making improvements to the justice system which will give complainers of sexual crime greater protection when engaging with the Scottish criminal justice system.

This chapter explores the recommendations within Lady Dorrian's Review to introduce the right to independent legal representation (ILR) for complainers in sexual offence cases, in connection with applications to lead evidence of their sexual history or character in court.

The proposals discussed in this chapter include:

• whether complainers in sexual offence cases should have the right to independent legal representation, and what it should cover
• rights of appeal against decisions to allow sexual history or character evidence
• whether ILR is publicly funded

For the purposes of this proposal, ILR means the right for a complainer in a sexual offence case to seek independent legal advice and to appoint an independent legal representative which includes the right for that representative to represent the complainer at any hearing relevant to the issues discussed in this section.

Current framework in Scotland

Under the current law in Scotland, there are restrictions on what evidence can be led in trials for certain sexual offences. For example, as set out in section 274 of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act'), the court shall not admit any evidence which shows or tends to show particular behaviour and sexual history about the complainer. This includes that the complainer is not of good character (whether in relation to sexual matters or otherwise) or that they have at any time engaged in sexual behaviour that doesn't relate to the case. This rule also means that witnesses shouldn't be asked any questions which are designed to bring out such evidence.

The rule is designed to protect complainers in sexual offence trials from giving evidence about irrelevant sensitive and private matters, or being asked distressing questions, when this is not necessary. However, there are some exceptions to this rule and the court can allow such evidence where an application is made under section 275 of the 1995 Act and the court is satisfied of certain things, including that the evidence is relevant to establishing whether the accused is guilty of the offence and that its value outweighs any risk of prejudice to the proper administration of justice which includes the protection of a complainer's dignity and privacy. If the court does not grant the application, the evidence cannot be discussed at trial. Where the court admits the evidence, it must state it's reasons for doing so, and at any time may review and limit the evidence permitted. Furthermore, the prosecution or defence for the accused have certain rights to appeal to the High Court against the court's decision on this matter for example, under section 74(2A)(b) of the 1995 Act.

There are fixed timescales to submit an application under section 275: it must be made no less than seven days prior to the preliminary hearing in the High Court and 14 days before the trial diet in Sheriff Court under section 275B(1)(b). An application can also be made in the course of the trial under s275B(2).

However, there is no statutory obligation on the courts under section 275 to notify the complainer of the application nor does a complainer have the right to tell the court they oppose the application or present their views on it to the court. Furthermore, should such an application be considered during the course of the trial, the statutory provisions under section 275B(2) provide that the complainer must not be present during its consideration. Scotland's adversarial system of criminal justice in which both the prosecutor and defence must state and argue their case in court may be perceived to clash with a person-centred approach. The Crown's role as a public prosecutor is to prosecute independently and in the public interest. The Crown does not act on behalf of the complainer and can't provide independent legal advice or assistance to them. The complainer's role in the process is as a witness and therefore they do not have independent legal representation during proceedings.

A number of recent high profile cases have called into question this general approach. Most recently, a full bench High Court appeal court judgment set out that "in order to respect a complainer's Article 8 rights, the court must be given information on the complainer's position on the facts and her attitude to, any section 275 application".

The judgment also set out that it was

"the duty of the Crown to ascertain a complainer's position in relation to a section 275 application and to present that position to the court, irrespective of the Crown's attitude to it and/or the application. This will almost always mean that the complainer must: be told of the content of the application; invited to comment on the accuracy of any allegations within it; and be asked to state any objections which she might have to the granting of the application."

As a result of that case, the courts have taken steps to record if the complainer in such a case has been made aware of the application. When an application has been lodged in a case, new operational guidance requires the Crown Office and Procurator Fiscal Service (COPFS) to notify the complainer of the application, seek comments on its accuracy and ascertain whether she/he has any objection to it. The court will also be informed of whether the complainer's notification of the application, their consideration and comments on the accuracy of any allegations within the application and any objections by the complainer to the granting of the application.

Rationale

The Scottish Government is clear that the justice system should always take a victim-centred perspective in addressing sexual crime, whilst balancing the rights of the accused. Improving the complainer's experience of the criminal justice system in respect of an especially intrusive aspect of criminal prosecution is in line with this aspiration, as set out in the Vision for Justice. Arising from the recommendation of Lady Dorrian's Review, we are consulting on whether further improvements are required to strengthen victims' rights through the criminal justice process relating to section 275 applications.

We are aware of a number of recent judicial decisions and research in the use of sexual history evidence or bad character evidence in sexual offences trials which have raised questions about whether complainers can effectively represent their position in relation to the use of previous sexual history evidence. This includes:

• RR v HMA [2021] HCJAC 21
• MacDonald v HMA [2020] HCJAC 21
• Dreghorn v HMA [2015] HCJAC 69
• Donegan v HMA [2019] HCJAC 10
• RN v HMA [2020] HCJAC3
• Cowan, S. (2020) - The use of sexual history and bad character evidence in Scottish sexual offences trials
• Keane, E., & Convery, T. (2020). Proposal for Independent Legal Representation in Scotland for Complainers where an Application is Made to Lead Evidence of their Sexual History or Character

As set out in the research by Keane and Convery, in many cases the nature of the questioning proposed in such applications would "represent a particularly intimate, sensitive and important aspect of a complainer's private life" and engage a complainer's rights under Article 8 ECHR which provides that "everyone has the right to respect for his private and family life, his home and his correspondence."

The Advice and Assistance (Proceedings for Recovery of Documents) (Scotland) Regulations 2017 allows complainers to be notified of, provide views on and access public funded ILR when an application is made to recover their medical or other sensitive documents.

The case of F v Scottish Ministers (known as 'WF'), held that a complainer or witness whose records are being sought is entitled to be notified of an application to recover their medical or any other sensitive records and thereafter a right to be heard in opposition. It is therefore proposed that reform to bring in ILR for section 275 applications is needed to bring the law into line with the process in respect of applications for recovery of medical and sensitive data.

Currently legal aid provision is available for complainers to oppose recovery of medical and sensitive records by way of applications for civil 'ABWOR' (subject to relevant tests). ABWOR is 'assistance by way of representation'. It is a form of advice and assistance funding that allows for a solicitor to represent a client at a hearing. It is proposed by Lady Dorrian's Review that ILR in respect of section 275 applications is publically funded. This could be funded by legal aid under either civil or criminal ABWOR. However, current legislation would not allow for it to be funded under both.

The Scottish Government hosted a round table discussion in November 2020 on the safeguarding of privacy rights for sexual offence victims and perceived barriers to them coming forward to report crimes against them. Representatives attended from victims' organisations, justice partners, the Faculty of Advocates and firms of defence solicitors. A report of the discussion presented by the Chair of Rape Crisis Scotland was published indicating a building of consensus and recommendation for thorough consideration to the introduction of ILR for these limited purposes.

Fiona E. Raitt's research report for Rape Crisis Scotland - 'Independent legal representation for complainers in sexual offence trials' and Lady Dorrian's Review also indicate that there may be cases where there is tension between the Crown's position to prosecute in the public interest and the complainer's own position on their sexual history. The Crown's role as a public prosecutor and officer of the court inevitably restricts the scope for supporting the complainer as it cannot provide independent legal advice or assistance to a complainer and its role does not necessarily coincide with the private interests of a complainer.

Having regard to the importance of this complainers' rights issue, and the fact that there may be significant tension between the interests of a complainer and that of the prosecution, we have set out proposals for consideration of ILR to be made available to complainers in respect of section 275 applications. The provision of ILR would be in line with the trauma-informed principle of 'choice' and has the potential to engage several of the core values associated with trauma-informed practice including collaboration and empowerment. It would allow the prosecutor to focus on the application purely in terms of its significance for the prosecution; and it would ensure that complainers could be satisfied that their views in respect of the application were presented to the court as instructed by them, when the court is deciding the application. Lady Dorrian's Review noted that the court must be given sufficient information to make its determination, bearing in mind that the 'interests of justice' test specifically includes 'appropriate protection of a complainer's dignity and privacy'; and that the complainer's position in response to the application may assist in determining whether the evidence is admissible.

Data on the use of section 275 applications

As a number of researchers and organisations have noted there is a lack of recent data and information on the use of sexual history and character evidence in sexual offences trials in Scotland. As such, it is difficult to form a precise picture of the number of applications which might be made each year. However, Scottish Government funded research on the use of sexual history and character evidence in sexual offences trials is currently underway which may provide more of an insight. The Justice Analytical Services grant funded project is being undertaken by Sharon Cowan and Eamon Keane (University of Edinburgh) and Vanessa Munro (University of Warwick). It will conduct empirical research, examining existing court processes and practices on use of this data in sexual offences trials and the impact these processes and practices have on sexual offences complainers' experiences of the criminal justice system. The project had been delayed due to the pandemic however this research is now progressing.

HM Inspectorate of Prosecution in Scotland is taking forward an inspection to assess the practice of COPFS in relation to sections 274 and 275 which is hoped will further increase transparency around the Crown's approach to this important issue.

Approach in other jurisdictions

Other jurisdictions have introduced or undertaken reviews and made recommendations regarding the potential for some form of ILR, however, each of these jurisdictions is unique, having differing legislation regarding the use of sexual history evidence generally.

It is our understanding that, in the Republic of Ireland, ILR with appropriate legal aid funding is currently available to complainers of rape and certain specified offences in connection with an application to question them about other sexual experiences, in terms of the Criminal Law (Rape) Act 1981. In their research, Keane and Convery found that in Ireland not all complainers oppose applications once they have had such advice. There is anecdotal evidence to suggest that the mere provision of such advice and assistance may have a positive impact on complainers.

The provision of publically funded ILR up to but not including trial has been recommended for Northern Ireland in Sir John Gillen's Review into the law and procedures in serious sexual offences there.

Matters for consultation

This consultation seeks views on proposals on publically funded ILR to enhance the privacy rights of complainers when applications to lead evidence of their sexual history or what is termed 'bad character' are made.

Whilst there appears to be a general consensus towards further exploration of the introduction of ILR, we consider that it is appropriate to consult on a number of specific issues relevant to the introduction of ILR which require further consideration.

The principle of the right to independent legal representation

Lady Dorrian's Review recommended that ILR should be made available to complainers, with appropriate public funding, in connection with section 275 applications and any appeals therefrom.

Question 48: To what extent do you agree or disagree that there should be an automatic right to independent legal representation for complainers when applications under section 275 to lead sexual history or character evidence are made in sexual offence cases?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Right to appeal

Lady Dorrian's Review also recommended that complainers should have a right to appeal the decision in terms of section 74(2A)(b) of the Criminal Procedure (Scotland) Act 1995 in circumstances where sexual history or other character evidence is sought under section 275 application.

Question 49: To what extent do you agree or disagree that the complainer should have the right to appeal a decision on a section 275 application?

Strongly agree

Slightly agree

Neutral

Slightly disagree

Strongly disagree

Please give reasons for your answer.

Scope – when the right to independent legal representation should apply

Question 50: To what extent do you agree or disagree that a right to independent legal representation for complainers should apply during any aspect of criminal proceedings in respect of applications under section 275 (including where an appeal is made)?

Strongly agree

Slightly agree

Neutral

Slightly disagree

Strongly disagree

Please give reasons for your answer.

Question 51: In exceptional cases, section 275B(2) provides that an application may be dealt with after the start of the trial. To what extent do you agree that independent legal representation should apply during this aspect of the proceedings?

Strongly agree

Slightly agree

Neutral

Slightly disagree

Strongly disagree

Please give reasons for your answer.

Legal aid

It is proposed by Lady Dorrian's Review that ILR in respect of section 275 applications is publically funded. This could be funded by legal aid under either civil or criminal 'assistance by way of representation' ('ABWOR'). However, current legislation would not allow for it to be funded under both.

Question 52: To what extent do you agree that independent legal representation for complainers in respect of the applications under section 275 should be funded by legal aid?

Strongly agree

Slightly agree

Neutral

Slightly disagree

Strongly disagree

Please give reasons for your answer.

Question 53: If you agree that independent legal representation for complainers in respect of the applications under section 275 should be funded by legal aid, how should this be provided?

a) under civil ABWOR

b) under criminal ABWOR

c) other – please provide details

Please give reasons for your answer.

Timescales for hearings on applications

The current time limit to make a section 275 application is no less than seven days prior to the preliminary hearing in the High Court. The time limit to make this application in the Sheriff Court is 14 days before the trial diet.

Question 54: To what extent do you agree or disagree that these time periods should be adjusted to provide additional time for the complainer to consider the application and effectively implement their right to independent legal representation prior to trial?

Strongly agree

Slightly agree

Neutral

Slightly disagree

Strongly disagree

Please give reasons for your answer.

Question 55: Are there any other matters relating to independent legal representation for complainers in sexual offence cases that you would like to offer your views on?