Criminal Procedure (Scotland) Act 1995 - sections 274 and 275: inspection of COPFS practice

Appendix 1 – High Court case review findings

250. To support our inspection, we reviewed a sample of cases in which section 275 applications had been made. The background to our case review, its purpose and the headline findings, as well as caveats regarding the data, are set out at paragraphs 20-22 and Chapter 2. Our more detailed findings are presented here.

251. Our review of High Court cases was split into two phases:

• Phase 1 – we reviewed a statistically significant, random sample of 123 High Court sexual crime cases in which section 275 applications had been made^[86]
• Phase 2 – we carried out a more in-depth review of 15 cases that had already been reviewed at Phase 1 to assess how they had been managed by COPFS, including how COPFS had engaged with complainers regarding the applications. We purposively sampled cases for review at Phase 2 taking into account a range of information gathered about each case at Phase 1.^[87]

Phase 1 – overview

252. We examined 123 High Court cases in Phase 1 of our case review. These cases featured 238 applications, meaning there were almost two applications per case. Fifty five (45%) cases featured one application and 68 (55%) cases featured more than one application. The number of applications per case ranged from one to six.

253. While we were able to identify the total number of applications in each case, we were not able to review every application due to inadequate record keeping by COPFS. While COPFS staff were able to trace the majority of the applications we requested, they were not able to trace five applications across four cases within the time available to complete our Phase 1 review. Further information on the applications we reviewed, including who made them and their content, is available from paragraph 293.

254. Across the 123 cases, 268 complainers featured on the indictments (ranging from one to 15). However, section 275 applications were not made in respect of every complainer. The applications that we reviewed related to 173 complainers and one witness who was not a complainer. More information about the complainers is available from paragraph 267 and the witness from paragraph 284.

255. Of the 123 cases:

• 119 (97%) cases featured one accused on the indictment
• four (3%) cases featured two accused on the indictment. In three of these four cases, applications were made in connection with both the accused. However, in one case where there were two accused, an application was only made in connection with one of the accused.

256. In total, 127 accused featured in cases where section 275 applications had been made, but applications were only made in connection with 126 of those accused. Further information about the accused is available from paragraph 286.

257. The 123 cases featured 584 charges on the indictments. The number of charges on each indictment ranged from one to 25. Of the 123 cases:

• 33 (27%) cases featured a single charge on the indictment
• 90 (73%) cases featured multiple charges on the indictment.

258. In each of the 123 cases, we noted the main charge on the indictment (see Chart 1). We deemed the main charge to be the one that would result in the most severe penalty. All of the indictments included a sexual offence, even if the main charge appeared non-sexual (such as attempted murder). In 116 (94%) cases, the main charge on the indictment was rape. This included statutory offences under sections 1 (rape) and 18 (rape of a young child under the age of 13) of the Sexual Offences (Scotland) Act 2009 and, in relation to crimes committed prior to 1 December 2010,^[88] the common law crimes of rape and attempted rape. In four of the seven remaining cases, the charges of lewd and libidinous practices and indecent assault related to historic incidents but, had the alleged offences occurred today, they would also have been prosecuted as rape under the 2009 Act.

259. For Phase 1 of our case review, we selected cases in which section 275 applications had been made during our sample period (between 1 January and 30 June 2021). The majority of the cases had been reported to COPFS in 2019 and 2020, as we would have expected, but one case was reported more recently (in 2021), while several were reported before 2019, as shown in Table 4. We were surprised that section 275 applications had been made in 2021 for cases reported as long ago as 2016 and 2017, however these cases tended to have complex procedural histories, such as complainers requesting a review of initial decisions to take no proceedings or lengthy appeals processes. More recently, the Covid-19 pandemic also delayed the progress of these cases.

Table 4 – Cases in Phase 1, by year of report

Year of report	Number of cases reviewed in Phase 1
2016	2
2017	2
2018	9
2019	72
2020	37
2021	1

260. Our Phase 1 review was carried out in late 2021. We considered the progress of the cases for the purposes of Phase 1 until 30 November 2021. In 86 (70%) cases, proceedings were live and had not yet concluded at that date. The remaining 37 cases (30%) had concluded and their outcome in relation to the main sexual charge on the indictment is set out in Table 5.

Table 5 – Outcome for main sexual charge in concluded cases ^[89]

Outcome	Number of cases
Found guilty	15
Acquitted – found not guilty	6
Acquitted – found not proven	5
No further proceedings	7
Pled guilty	2
Deserted simpliciter[90]	1
Examination of facts[91]	1

261. Table 5 shows that in 15 cases, the accused was found guilty in relation to the main sexual charge on the indictment. However, in some of these cases there was a different outcome for other charges or other complainers on the indictment, including those charges or complainers in respect of which the section 275 application had been made. For example:

• in one case, the accused was charged with several sexual offences against two complainers. He was found guilty in respect of the rape of one complainer, but the charges in respect of the complainer about whom the section 275 application had been made were withdrawn
• in another case, section 275 applications were made in respect of three complainers. The accused was found guilty of the charges relating to two complainers (including a rape) but a charge of coercing a person into being present during a sexual activity in respect of the third complainer was found not proven.

262. Table 5 also shows that in 11 cases, the accused was acquitted of the main sexual charge on the indictment. This includes cases where there was an acquittal on all charges but also cases where the accused was acquitted of the main sexual charge but found guilty of other offences.

263. In these, and in all our cases, it is not possible to say what role the section 275 application played in the final outcome.

264. In the seven cases where no further proceedings were taken, this was for a range of reasons including that the accused had died (three cases), the complainer had disengaged from the prosecution process (two cases), the complainer had left the country (one case) and there was no longer any realistic prospect of conviction (one case).

265. In the two cases where the accused pled guilty, in one case the accused pled guilty prior to the trial starting and, in the other case, the accused pled guilty after the trial had started and the evidence from the complainer had been led.

266. The 86 cases that were ongoing at 30 November 2021 had progressed to various stages:

• in 14 (16%) cases, a preliminary hearing or continued preliminary hearing had been fixed
• in 69 (80%) cases, a trial or Dedicated Floating Trial date had been fixed
• in two (2%) cases, an Evidence by Commissioner hearing had been fixed
• in one (1%) case, a warrant for the arrest of the accused was outstanding.

The complainers

267. The applications that we examined in Phase 1 of our case review related to 173 complainers and one witness. The witness is considered at paragraph 284.

268. Of the 173 complainers who were the subject of a section 275 application, 163 (94%) were female and 10 (6%) were male.

269. The age of the complainers at the time the police report was submitted to COPFS ranged from 13 to 77 (see Chart 2). Twenty one (12%) complainers were children aged under 18, and a further 25 (14%) complainers were under the age of 21. Three (2%) complainers were over 60 at the time of the police report.^[92]

270. Many sexual offences are not reported to the police until some time after they occur, while some offending has taken place over a considerable period of time (spanning years, or even decades) before being reported to the police.^[94] Chart 3 shows the age of the complainer at the time of the main charge to which the section 275 application related or, where the offending spanned several years, the age of the complainer when the offences began.

271. The age of the complainer at the time of the offence to which the section 275 application related ranged from two to 77 years. In total, 61 (35%) complainers were children aged under 18 at the time of the offence or when the offending began.

272. Of the 173 complainers:

• 80 (46%) were the same age at the time of police report as they were at the time of the offence
• 16 (9%) were no more than one year older at the time of the police report as they were at the time of the offence
• 77 (45%) were more than one year older at the time of the report than at the time of the offence or the start of the offences. In one case, the offences occurred between 1964 and 1967 but were not reported until 2019, and in another case, the offence was reported in 2019, two years after it occurred.

273. In some of the cases we reviewed, multiple section 275 applications were made in respect of the same complainer. This was because both the Crown and defence made applications about the complainer, because applications about the complainer were made on behalf of more than one accused, or the Crown or the same defence counsel made more than one application about the same complainer.

274. Chart 4 shows that the number of applications per complainer ranged from one to five, and that 62 (36%) complainers were the subject of more than one application.

275. While most applications related to an individual complainer, we found 11 applications which each sought to elicit evidence relating to multiple complainers, hence the number of applications in Chart 4 adding up to more than the number of applications that we reviewed.

Vulnerable complainers

276. Complainers in sexual offence cases are all deemed to be vulnerable under section 271 of the 1995 Act. Complainers may also have other vulnerabilities or specific needs, in addition to being deemed vulnerable. These vulnerabilities and needs, depending on their nature, may require a tailored response from COPFS so that steps can be taken to ensure any communication with or support to the complainer is appropriate. In our case review, we sought to identify any actual or potential vulnerabilities, and their nature and extent, based on the information recorded in the case files.

277. Thirty two (18%) of the 173 complainers were deemed vulnerable due to being a complainer in a sexual offence case but no additional vulnerabilities were identified in the documents we reviewed. In relation to the remaining 141 (82%) complainers:

• 78 complainers had one additional vulnerability
• 50 complainers had two additional vulnerabilities
• 11 complainers had three additional vulnerabilities
• two complainers had four additional vulnerabilities.

278. Some of the complainers were vulnerable due to their age – 21 (12%) complainers were under 18 at the time of the police report to COPFS. A further 40 (23%) complainers were under 18 at the time of the offence. Three (2%) complainers were over 60 at the time of the police report.

279. Some complainers were vulnerable or potentially vulnerable due to their living or family circumstances. For example, three (2%) of the complainers were looked after children, four (2%) lived in supported accommodation, two (1%) were homeless and three (2%) were described as having a 'chaotic lifestyle'. Thirty two (18%) complainers were also the victims of domestic abuse.

280. Neither COPFS nor the police routinely record whether a complainer has a disability. However, this information is sometimes included in the case documentation. Ten (6%) complainers were described as having a disability. A further four (2%) were described as having learning difficulties and two (1%) had a neurodevelopmental condition. Sixty (35%) complainers were described as having mental health issues, and 25 (14%) misused alcohol and/or drugs.

281. Five (3%) complainers required an interpreter.

Complainer's relationship with the accused

282. The existence and nature of the complainer's relationship with the accused often features in section 275 applications. Chart 5 shows the nature of the relationship between the 173 complainers and the accused. The majority (86%) of accused were known to the complainer prior to the alleged offence.

283. The category of 'No prior relationship' includes those complainers and accused who were strangers to one another prior to the alleged offence, as well as those complainers who had first met and spent time with the accused on the same day as the alleged offence.

The witness

284. One section 275 application was made by the Crown in respect of a witness who was not the complainer. The witness had originally been listed as a complainer in the police report to COPFS, but was not included on the indictment for appropriate reasons. A decision was taken to include the witness on docket evidence.

285. The making of a section 275 application in respect of a witness who was not a complainer was unexpected given that sections 274 and 275 only apply to complainers. The witness appeared on a docket, but COPFS policy notes that section 275 applications are neither required nor permitted in respect of witnesses who feature in a docket but not the charge.^[95] It appears that the application was erroneously made but nevertheless was granted by the court.

The accused

286. As noted at paragraphs 255-256, in our sample of 123 cases, section 275 applications were made in connection with 126 accused. All the accused were male.

287. From the information available on the indictment, 29 (24%) cases were indicted while the accused was remanded in custody and 94 (76%) cases were indicted while the accused was on bail.^[96]

288. The age of the accused at the time they were reported to COPFS ranged from 16 to 72:

• four (3%) accused were aged under 18 (one was aged 16, and three were 17)
• 15 (12%) accused were aged between 18 and 20
• 41 (33%) were aged between 21 and 30
• 30 (24%) were aged between 31 and 40
• 14 (11%) were aged between 41 and 50
• 15 (12%) were aged between 51 and 60
• six (5%) were aged between 61 and 70
• one (1%) accused was aged over 71 (he was 72).

289. The age of the accused at the time of the offence to which the section 275 application related ranged from eight to 67 years. The accused is often charged with offences that span a period of time (either in respect of the same or different complainers). For that reason, it is not possible to group the accused by their age at the time of offending as has been done for the age at the time of reporting.

290. Of the 126 accused in our sample:

• 77 (61%) accused were reported to COPFS within one year of all of the alleged offence(s)
• 49 (39%) accused were reported for an offence or series of offences that took place more than one year before the report was made.

291. Thirty six (29%) of the 126 accused were charged with offences spanning a period of time, often several years apart. The longest span of alleged offending contained in the indictment was 41 years.

292. Seven (6%) accused were reported as adults for offences that were all alleged to have been committed while they were under the age of 18, one of whom was reported 48 years after the most recent alleged offence. A further eight (6%) accused were reported as adults where some of the alleged offending took place while they were under 18.

The applications

293. In the 123 cases in our sample, 238 section 275 applications were made – a rate of almost two applications per case. Fifty five (45%) cases featured one application and 68 (55%) cases featured more than one application. The number of applications per case ranged from one to six:

• 55 (45%) cases featured one application
• 40 (33%) cases featured two applications each
• 15 (12%) cases featured three applications each
• eight (7%) cases featured four applications each
• four (3%) cases featured five applications each
• one (1%) case featured six applications.

294. The reason for multiple applications in individual cases varied depending on the circumstances of the case and the approach taken to the applications. Some cases had more than one application because there were applications from both the Crown and defence, or because the case featured more than one accused^[97] or more than one complainer and, commonly, separate applications were made in respect of each. However, in some cases with multiple complainers, rather than there being a separate application in respect of each complainer, one application related to several complainers. For example, in six cases, the Crown made a single application referring to more than one complainer,^[98] while in five cases, the defence made a single application referring to more than one complainer.^[99]

295. There were also cases in which multiple applications were made in respect of the same complainer. This was done by both the Crown and defence. In 11 of the 97 (11%) cases in which the defence made applications, the defence made more than one application about the same complainer. In four of the 80 (5%) cases in which the Crown made applications, the Crown made two applications about the same complainer. For example:

• in one case with one accused, the defence made four applications all relating to the same complainer
• in one case with two accused, defence counsel for each of the accused made applications about the same complainer
• in one case with one accused, the Crown made two applications about the same complainer.

296. It is not clear from our Phase 1 review why multiple applications about the same complainer were made by the same party. However, the making of multiple applications, particularly if made at different times, has implications for how often the complainer will be contacted by the Crown with intimation of the application and seeking the complainer's views on its content.

297. Although there were 238 applications in our sample, five applications had not been imported to the electronic case file and were not traced within the time available for our Phase 1 review. The analysis below is therefore based on 233 applications.

Who made the applications?

298. Of the 123 cases we reviewed:

• in 80 (65%) cases, applications were made by the Crown
• in 97 (79%) cases, applications were made by the defence.

299. In 54 (44%) cases, applications were made by both the Crown and the defence. In the remaining 69 (56%) cases, applications were made by either the Crown or the defence.

300. Of the 233 applications we reviewed:

• 89 (38%) were made by the Crown
• 144 (62%) were made by the defence.

301. A key feature of the Crown's applications is that almost a third of them related to docket evidence (see paragraph 340).

Main charge to which the applications relate

302. At paragraph 258, we noted the main charge on the indictment in the 123 cases we reviewed. We also recorded the main charge to which the section 275 application related which was often, but not always, the same. In 203 of the 233 (87%) applications, the main charge to which the section 275 application related was rape. This included alleged contraventions of sections 1 and 18 of the Sexual Offences (Scotland) Act 2009, as well as the common law offence of rape or historic offences that would now be prosecuted as rape (see Table 6).

Table 6 – Main charge to which section 275 applications relate

Main charge	Number of applications
Rape[100]	203
Sexual assault (section 3, 2009 Act)	6
Indecent assault	5
Lewd and libidinous practices	4
Voyeurism (section 9, 2009 Act)	4
Attempted murder	3
Intercourse with an older child (section 28, 2009 Act)	3
Sexual assault by penetration (section 2, 2009 Act)	2
Stalking (section 39, Criminal Justice and Licensing (Scotland) Act 2010)	1
Sexual assault on a young child by penetration (section 19, 2009 Act)	1
Assault	1

Outcome of the applications

303. Table 7 shows the outcome of the section 275 applications we reviewed. Of the 218 applications where the outcome was known:

• 170 (78%) were granted in full or in part
• 33 (15%) were refused
• 15 (7%) were withdrawn.

Table 7 – Outcome of section 275 applications

Applicant	Granted in full or in part	Refused	Withdrawn	Not known or outstanding	Total
Crown	67	5	7	10	89
Defence	103	28	8	5	144
Total	170	33	15	15	233

Outcome of Crown applications

304. Of the 89 section 275 applications made by the Crown, six had not yet been considered by the court at the time of our review and the outcome of four had not been recorded in the case files. Of the remaining 79 applications by the Crown:

• 64 (81%) were granted in full
• three (4%) were granted in part
• five (6%) were refused
• seven (9%) were withdrawn.

305. In total, 85% of the Crown's applications were granted in full or in part. It is worth noting that 100% of the docket applications made by the Crown (where the outcome is known) were granted. Excluding the docket applications, 79% of the Crown's applications were granted in full or in part.

306. Five of the Crown's section 275 applications were refused by the court. Three of the applications were refused because they were deemed unnecessary,^[101] one was deemed irrelevant and one was refused because it was late.

307. Seven of the Crown's section 275 applications were withdrawn. Three appeared to have been withdrawn because they were not considered relevant; three were considered unnecessary due to developments in case law; and one appeared to have been withdrawn because it covered the same material as an application made by the defence (see paragraphs 134-135).

Outcome of defence applications

308. Of the 144 applications made by the defence, the outcome of five was not yet known, either because the application had not yet been considered by the court or because the outcome was not recorded in the case records we reviewed. Of the remaining 139 applications by the defence:

• 103 (74%) were granted in full or in part
• 28 (20%) were refused
• eight (6%) were withdrawn.

309. Of the 28 defence applications that were refused by the court, the case records suggested that 10 were deemed collateral and irrelevant; eight were deemed unnecessary (sometimes on the basis that they were in the same terms as the Crown's application); and one was refused as the defence being put forward had no basis in law. We were not able to ascertain from the case records the reasons for refusing the remaining nine applications.

310. Eight defence applications were withdrawn. It was not clear from the case records why four of the applications were withdrawn. Three (all in the same case) appeared to have been withdrawn after the Crown indicated that it would lay the accused's previous convictions before the court. One application was withdrawn after the complainer died.

311. Our case review suggests that Crown applications are more likely to be granted in full or in part (85%) than those made by the defence (74%), while defence applications are more likely to be refused (20%) than those made by the Crown (6%).

312. It is worth noting however, that even where applications were granted in full by the court, they had sometimes been previously amended by the Crown or the defence, often following discussions between the parties. In some cases, parts of an application were withdrawn. Additionally, in some cases, notwithstanding the court granting the application in full, the judge made certain remarks to reinforce that the questioning of the complainer at trial had to be conducted sensitively and within the spirit of the legislation. For example:

• in one case, the judge said that the defence was not to stray into humiliating the complainer and was not to use excessive repetition to make points
• in one case where the application was granted in full, the judge said that a particular paragraph of the application had to be dealt with sensitively and politely
• in one case, applications were granted after revised applications were submitted by both the Crown and defence and the judge reminded them that all of the matters contained in the applications should be put to the complainer in the least detail required and with no attempt at embarrassing, humiliating or seeking judgement about the complainer's actions.

Opposing party's attitude towards applications

313. During our review, we sought to identify the opposing party's attitude towards section 275 applications. Table 8 shows the Crown's attitude towards defence applications, and the defence attitude towards Crown applications. The opposing party's position on 54 applications was either not known or the application had not yet been considered. Of the remaining 179 applications:

• 119 (66%) were unopposed
• 60 (34%) were opposed in full or in part.

Table 8 – Opposing party's attitude towards applications

Applicant	Opposed in full or in part	Unopposed	Not known or outstanding	Total
Defence attitude to Crown applications	4	57	28	89
Crown attitude to defence applications	56	62	26	144
Total	60	119	54	233

314. The defence's attitude towards Crown applications was not known or not yet known in relation to 28 applications.^[102] Of the remaining 61 applications by the Crown:

• 57 (93%) were unopposed by the defence
• four (7%) were fully or partly opposed.

315. In respect of the 57 Crown applications that were unopposed by the defence, 53 were granted in full or in part. Four unopposed Crown applications were refused by the court.

316. In respect of the four applications that were fully or partly opposed by the defence, three were granted in full and one was granted in part. In only one case was the reason for the defence's opposition to the application noted in the case records – the defence opposed the application because it was late (the application was nevertheless granted). Three of the four applications opposed by the defence were docket applications.

317. The Crown's attitude towards defence applications was not known or not yet known in relation to 26 applications. Of the remaining 118 applications by the defence:

• 62 (53%) were unopposed
• 56 (47%) were opposed in full or in part.

318. Of the 62 defence applications that were not opposed by the Crown, 54 were granted in full by the court, six were granted in part, one was refused and one had not yet been considered. The application which was not opposed by the Crown but which was refused by the court was refused on the basis that the evidence sought to be elicited did not engage section 274. In the same case, the Crown opposed a second application made by the defence.

319. In relation to the 56 defence applications that were opposed by the Crown, 32 were fully opposed. Of these fully opposed applications, 23 were refused by the court, eight were granted in part and one was granted in full. Twenty four applications were partly opposed by the Crown. Of these partly opposed applications, 20 were granted in part by the court and four were granted in full.

320. As noted above, 28 defence applications were refused by the court. We were not able to ascertain the Crown's attitude towards four of those applications. Of the remaining 24 refused defence applications, the Crown opposed 23 (96%) and did not oppose one (4%).

321. Our case review suggests that the Crown is more likely to oppose applications than the defence (47% compared to 7%). It also suggests:

• the Crown opposes more defence applications than are refused by the court
• the Crown's lack of opposition to defence applications is generally supported by the court. This could suggest that the Crown's lack of opposition is generally appropriate, or it could suggest that the Crown's stance influences the court's decision
• the nuanced approach by the Crown to applications made in the same case suggests that the Crown is considering the merits of each application.

Content of the applications

322. In Phase 1 of our case review, we considered the content of the 233 applications we examined. We identified 10 categories of evidence that applications may seek to admit or elicit at trial.^[103] These were:

a) the complainer's past sexual history with the accused

b) the complainer's past non-sexual history with the accused

c) the complainer's behaviour with the accused at or around the time of the alleged offence (whether sexual or non-sexual)

d) the complainer's sexual behaviour with, or in the presence of, a third party at or around the time of the alleged offence

e) the complainer's relationship status

f) the sexual history of the complainer other than with the accused

g) the sexual character of the complainer

h) the general character of the complainer

i) the behaviour of the complainer after the alleged offence, not involving the accused

j) the behaviour of the complainer after the alleged offence involving the accused.

323. Some applications covered only one category of evidence, while others were more complex and sought to admit or elicit evidence from a range of categories (see Table 9). No application covered evidence from all 10 categories. The length and complexity of the application has implications for the Crown when assessing its response to those made by the defence and when consulting complainers on their content.

Table 9 – Categories of evidence covered by section 275 applications

Categories of evidence	Number of applications
1	127
2	55
3	29
4	13
5	4
6	3
7	1
8	0
9	1
10	0

324. Table 9 shows that:

• 127 (55%) applications sought to admit or elicit evidence from one category
• 106 (45%) applications sought to admit or elicit evidence from more than one category.

325. Of the 127 applications relating to one category of evidence, 66 (52%) were made by the Crown and 61 (48%) by the defence. Of the 106 applications relating to more than one category of evidence, 23 (22%) were made by the Crown, and 83 (78%) were made by the defence.

326. The Crown was more likely to make targeted applications relating to only one category of evidence (74% of its 89 applications) than to make more complex applications relating to multiple categories of evidence (26% of its applications).^[104]

327. The defence was more likely to make an application relating to multiple categories than a single category – 58% of the 144 defence applications related to more than one category (compared to 26% of the Crown's applications). The most complex applications were also made by the defence – all the applications relating to five or more categories of evidence were made by the defence.

328. The category of evidence most frequently sought is shown in Table 10. Across the 233 applications, 451 'requests'^[105] were made for evidence within the 10 categories.

Table 10 – Frequency of evidence sought to be admitted or elicited

Category of evidence	Number of requests	Proportion of total requests
a) Past sexual history with accused	72	16%
b) Past non-sexual history with accused	17	4%
c) Behaviour with accused at or around time of alleged offence	138	31%
d) Sexual behaviour with third party at or around time of alleged offence	9	2%
e) Complainer's relationship status	35	8%
f) Sexual history of complainer (other than with accused)	14	3%
g) Sexual character of complainer	15	3%
h) General character	79	18%
i) Behaviour of complainer after the alleged offence, not involving accused	31	7%
j) Behaviour of complainer after the alleged offence involving the accused	41	9%

329. Table 10 shows that the category of evidence sought to be admitted or elicited the most often is that relating to the complainer's behaviour with the accused at or around the time of the alleged offence, which makes up almost a third of all requests in section 275 applications. Examples of such evidence include consensual kissing and hugging immediately prior to the alleged offence. The reason this category of evidence is sought most often is likely because this evidence, whether elicited by the Crown or the defence, may be seen as having a bearing on whether the complainer consented to the sexual activity and the accused's reasonable belief in that consent, issues which are often the crux of a sexual offence case.

330. Evidence regarding the character of the complainer (whether about their sexual or general character) was sought in 21% of applications. Evidence about the complainers' general character related to, for example, their mental ill-health, their use of alcohol or drugs, and their dishonesty.

331. Evidence regarding the complainer's past sexual history with the accused also commonly featured in section 275 applications (16% of all requests related to this category). Docket applications accounted for a significant proportion of these requests – of the 72 requests made to admit or elicit evidence regarding the complainer's past sexual history with the accused, 27 (38%) were made in docket applications.

332. Table 11 shows the frequency of the categories of evidence sought in section 275 applications, broken down by the Crown and the defence. The Crown made 130 requests for evidence (a rate of 1.5 per application) and the defence made 321 requests for evidence (a rate of 2.2 per application).

Table 11 – Frequency of evidence sought to be admitted or elicited, by Crown and defence

Category of evidence	Number of Crown requests	Proportion of Crown requests	Number of defence requests	Proportion of defence requests
a) Past sexual history with accused	45	35%	27	8%
b) Past non-sexual history with accused	2	2%	15	5%
c) Behaviour with accused at or around time of alleged offence	45	35%	93	29%
d) Sexual behaviour with third party at or around time of alleged offence	1	1%	8	2%
e) Complainer's relationship status	9	7%	26	8%
f) Sexual history of complainer (other than with accused)	5	4%	9	3%
g) Sexual character of complainer	3	2%	12	4%
h) General character	19	15%	60	19%
i) Behaviour of complainer after the alleged offence, not involving accused	1	1%	30	9%
j) Behaviour of complainer after the alleged offence involving the accused	0	0%	41	13%

333. The most common categories of evidence sought to be elicited by the Crown were those relating to the complainer's past sexual history with the accused and the complainer's behaviour with the accused at or around the time of the alleged offence (each of which represented 35% of all Crown requests). This latter category of evidence was also the one most often sought to be elicited by the defence (29% of all defence requests).

334. Notably, the Crown was far more likely than the defence to seek to admit or elicit evidence relating to the complainer's past sexual history with the accused. Docket applications accounted for 58% of the Crown's requests to admit or elicit evidence in this category. A previous study of section 275 applications published in 2007^[106] (prior to applications being made in respect of dockets) had suggested that this evidence was sought by the Crown to provide the jury with context and to help them make sense of the events surrounding the alleged offence. Some of the applications we reviewed suggested the Crown may still be taking this approach in some cases, albeit there is case law suggesting that providing such context or a narrative may not be required.^[107]

335. The defence was far more likely to make applications relating to the complainer's behaviour after the alleged offence (whether the behaviour involved or did not involve the accused) – these categories represented 20% of all defence requests, but only 1% of Crown requests. Examples of behaviour falling into these categories include showing no signs of distress and maintaining contact with the accused. Maintaining contact with the accused ranged from maintaining contact via social media to continuing a sexual relationship with the accused. It also included remaining friends, continuing to work with the accused and the complainer allowing contact between her children and the accused.

336. We noted the outcome of each request to admit or elicit evidence. As noted above, the outcome of some section 275 applications was not known, either because the application had not yet been considered by the court or the outcome was not recorded in the case records to which we had access. In the remaining applications where the outcome was known and excluding those where the application was withdrawn, we recorded the outcome for each individual request to admit or elicit evidence relating to a particular category. The outcome of 382 of the 451 requests is known and is shown at Table 12. In total, 69% of requests were granted or granted in part, and 31% of requests were refused.

337. When the requests shown in Table 12 are broken down by the Crown and the defence, we found that Crown requests were more likely be granted in full or in part, while defence requests were more likely to be refused. Of the 130 requests made by the Crown, the outcome was recorded as granted, granted in part or refused in 100:

• 90 (90%) were granted or granted in part
• 10 (10%) were refused.

Table 12 – Outcome of requests to admit or elicit evidence

Category of evidence	Number of known results	Number of requests granted/ granted in part	Proportion of requests granted/ granted in part	Number of requests refused	Proportion of requests refused
a) Past sexual history with accused	55	37	67%	18	33%
b) Past non-sexual history with accused	16	7	44%	9	56%
c) Behaviour with accused at or around time of alleged offence	126	116	92%	10	8%
d) Sexual behaviour with third party at or around time of alleged offence	8	6	75%	2	25%
e) Complainer's relationship status	26	14	54%	12	46%
f) Sexual history of complainer (other than with accused)	11	4	36%	7	64%
g) Sexual character of complainer	13	7	54%	6	46%
h) General character	67	39	58%	28	42%
i) Behaviour of complainer after the alleged offence, not involving accused	28	15	54%	13	46%
j) Behaviour of complainer after the alleged offence involving the accused	32	20	63%	12	38%
Total	382	265	69%	117	31%

338. Of the 321 requests made by the defence, the outcome of 282 is known. For the remaining 39 requests, the outcome was either unknown, the request was outstanding or the request had been withdrawn.

• 175 (62% of the known results) were granted or granted in part
• 107 (38%) were refused.

339. Table 12 shows that the category of evidence most likely to be refused related to the sexual history of the complainer with someone other than the accused, followed by the complainer's past, non-sexual history with the accused. The category of evidence most likely to be allowed or allowed in part related to the complainer's behaviour with the accused at or around the time of the alleged offence, followed by the complainer's sexual behaviour with a third party at or around the time of the alleged offence (although the number of requests relating to this latter category is small and should therefore be treated with caution).

Docket applications

340. Of the 233 applications that we reviewed, 30 (13%) were docket applications. Twenty eight (93%) of the docket applications were made by the Crown and two (7%) by the defence. Docket applications made up 31% of the Crown's section 275 applications, and 1% of applications made by the defence.

341. All of the Crown's docket applications sought to admit or elicit evidence relating to a single category:

• 26 (93%) sought to elicit evidence relating to the complainer's past sexual history with the accused
• two (7%) sought to elicit evidence relating to the complainer's behaviour with the accused at or around the time of the incident.

342. The outcome of 21 of the Crown's 28 docket applications is known – all were granted in full. The outcome of the remaining applications was not known, either because it had not yet been decided by the court or had not been recorded in the case records we reviewed.

343. We were only able to ascertain the defence's attitude towards 15 of the Crown's docket applications. Twelve of the docket applications were not opposed by the defence. Three docket applications were fully or partly opposed (one of which was opposed on the basis that it was late, rather than on its merits), but all were granted by the court.

344. Of the two docket applications made by the defence, one sought to elicit evidence relating to the complainer's past sexual history with the accused. It was allowed in part. The second defence docket application related to five categories of evidence, some of which were allowed and some were allowed in part. One of those cases was fully opposed by the Crown and granted in part by the judge, and in the other case the attitude of the Crown is not recorded on the court minutes.

Reviews and appeals

Reviews

345. In 26 of the 123 (21%) cases we reviewed for Phase 1, we found evidence that the Crown had either lodged a new application, withdrawn an application, or asked the court to review previously granted applications in light of changes to case law or policy.

346. In 20 of these cases, the new, withdrawn or reviewed Crown applications were docket applications. In some cases, the Crown's change in approach appeared to be connected to a new operational instruction regarding docket applications which came into effect on 30 March 2021.

347. In the remaining six cases, the Crown reviewed its own applications or asked the court to review those made by the defence in light of the developing case law. This resulted in some applications being withdrawn, some new applications being made, and some previously granted applications being refused. For example, in one case, the Crown asked the court to reconsider three Crown and three unopposed defence applications that had previously been granted. Prior to trial, the Crown brought the court's attention to pending appeal cases (including RR and CH) which would have an impact on the six applications. This led to the Crown withdrawing its three applications and the defence resubmitting three applications. The Crown changed its position on all three defence applications from unopposed to opposed. When reconsidering the applications, the court affirmed the Crown's decision to withdraw its applications and refused two defence applications in full and allowed one only in part. Thus, six previously granted applications were reduced to one application that was granted in part, significantly narrowing the scope of the evidence to be admitted or elicited at trial.

Appeals

348. Of the 123 cases we reviewed at Phase 1, leave to appeal the decision of the preliminary hearing judge regarding the section 275 application was sought in eight (7%) cases. In seven cases, leave to appeal was sought by the defence, and in one case, leave to appeal was sought by both the Crown and the defence. No cases featured a Crown appeal in respect of a Crown application.

349. Of the eight cases where leave to appeal was sought, it was refused in three:

• in one case, the defence was refused leave to appeal a decision to grant late applications made by the Crown
• in one case, the defence was refused leave to appeal a decision to grant a defence application only in part
• in the case where leave to appeal was sought by both the Crown and defence regarding a defence application, leave to appeal was refused.

350. In five of the eight cases where leave to appeal was sought, it was allowed. In all five cases, leave to appeal was sought by the defence in relation to a decision about its own section 275 application. In one case, the appeal was ongoing at the time of our review and in another we were not able to ascertain the outcome of the appeal from the case records. In the remaining three cases, the Appeal Court upheld the decision of the preliminary hearing judge to refuse an application entirely or to limit the scope of questioning and all defence appeals were refused.

Phase 2 – overview

351. In Phase 2 of our case review, we carried out a more in-depth review of 15 cases that we had already reviewed at Phase 1. We assessed how the Crown had managed the section 275 applications in those cases, including how it had engaged with complainers about the applications.

352. We reviewed 15 cases featuring 37 applications and 26 complainers.

353. The number of applications per case ranged from one to six:

• in four cases, there was one application
• in five cases, there were two applications
• in four cases, there were three applications
• in one case, there were five applications
• in one case, there were six applications.

354. Of the 37 applications:

• 12 were made by the Crown.
• 25 were made by the defence.

355. Of the 12 Crown applications:

• seven were drafted by a case preparer (three of whom were legally qualified and four of whom were not legally qualified)
• three were drafted by an advocate depute
• we could not establish who had drafted two applications from the case records.

356. All of the applications drafted by a case preparer were checked by a more senior colleague. In some cases, there was evidence that an advocate depute checked and amended the applications, whereas others were reviewed by solemn legal managers and indicters.

357. We assessed the extent to which the section 275 applications complied with the common law rules of evidence and the 1995 Act. This was not to substitute our assessment for that of the courts, but to help gauge the quality of the Crown's applications and whether it was appropriately responding to defence applications.

Compliance with section 275(3)

358. We considered the extent to which the Crown's applications complied with section 275(3) of the 1995 Act (see paragraph 7).

• all 12 of the Crown's applications set out the evidence to be admitted or elicited
• all 12 set out the nature of the questioning proposed
• 11 of the 12 Crown applications set out the issues at trial to which the evidence was considered relevant but one did not
• all 12 set out the reasons why the evidence was considered to be relevant to those issues
• all 12 set out the inferences which it proposed to submit to the court should be drawn from the evidence.

359. Overall, 11 of the 12 Crown applications fully complied with the statutory requirements set out in section 275(3). In contrast, of the 25 defence applications

• one did not fully set out the evidence to be admitted or elicited
• six did not set out the nature of the questioning proposed, and one only did so in part
• four did not set out the issues at trial to which the evidence was considered relevant, and one only did so in part
• one did not set out the reasons why the evidence was considered to be relevant to those issues

• two did not set out the inferences which it proposed to submit to the court should be drawn from the evidence.

Admissibility at common law

360. In CH v HMA, the Appeal Court noted that, 'The touchstone for consideration of an application under section 275 is that the evidence sought to be elicited is admissible at common law.'^[108]

361. We therefore considered the extent to which the applications that we reviewed sought to lead evidence that was admissible as relevant at common law. Of the 37 applications, we considered:

• 16 sought to lead evidence that was admissible at common law
• 12 sought to lead evidence that was admissible in part
• nine sought to lead evidence that was inadmissible.

362. Of the 12 Crown applications, we considered:

• the evidence in 10 applications to have been admissible at common law
• the evidence in one to have been partly admissible
• the evidence in one to have been inadmissible. This application, concerning the complainer's use of cannabis, did not sufficiently explain why the evidence the Crown sought to admit was relevant. This application was ultimately withdrawn at the fourth preliminary hearing in the case.

363. Of the Crown applications that we considered admissible at common law, five related to dockets.

364. Of the 25 defence applications, we considered:

• the evidence in six applications to have been admissible as relevant at common law
• the evidence in 11 applications to have been partly admissible
• the evidence in eight to have been inadmissible.

365. Examples of evidence which the defence sought to admit or elicit and which we considered not to be relevant at common law given the circumstances of the case included evidence regarding the complainer's:

• sexuality
• previous convictions for dishonesty
• mental health and substance misuse
• relationship with the accused following the incident
• relationship with another man
• previous sexual history with the accused
• failure to report the incident at an earlier opportunity.

In one case, the accused was charged with rape on various occasions over a lengthy period of time. The defence submitted a section 275 application which sought to lead evidence that the accused had continued to play a role in the complainer's life after that period, including being present at key events and taking care of her children. When consulted on the application, the complainer's position was that she did not want the accused in her life but that, as a member of her extended family, he regularly insinuated himself into it. The application was opposed by the Crown which considered the evidence to be irrelevant. The court refused the application on that basis saying that, if allowed, the evidence would lead to a collateral inquiry.

Evidence prohibited by section 274

366. Where the evidence is admissible at common law, consideration must then be given to whether the evidence is struck at (i.e. prohibited) by section 274. Of the 37 applications, we considered that:

• in 19 applications, the proposed evidence was struck at by section 274(1) (of which, nine were Crown applications and 10 were defence applications)
• in 15 applications, the proposed evidence was struck at in part (two Crown, 13 defence)
• in two applications, the proposed evidence was not struck at, rendering the applications unnecessary (both defence applications)
• in one Crown application, there was divided opinion among our inspectors as to whether the evidence was struck at, illustrating the challenges posed when applying the legislation.

Compliance with section 275(1)(a-c)

367. Where evidence is admissible at common law and struck at by section 274, a section 275 application is required. The court may allow the evidence if it is satisfied as to its specificity, relevance and probative value.

368. Regarding the requirement that the evidence sought to be admitted or elicited must relate to specific matters (section 275(1)(a)), we considered:

• in 31 applications, the evidence related to specific matters (nine Crown, 22 defence)
• in five applications, the evidence related to specific matters in part (two Crown, three defence)
• in one case, the evidence did not relate to a specific matter (a Crown application regarding the complainer's use of cannabis over a long period of time).

369. Regarding the requirement that the evidence sought to be admitted or elicited must be relevant (section 275(1)(b)), our assessment of the applications for the statutory test of relevance was the same as that for the common law test of relevance (see paragraph 361).

370. Regarding the requirement that the evidence sought to be admitted or elicited must have significant probative value (section 275(1)(c)), we considered:

• in 14 applications, the probative value was significant (eight Crown, six defence)
• in 15 applications, the probative value was significant in part (three Crown, 12 defence)
• in eight applications, the probative value was not significant and was not likely to outweigh the risk of prejudice to the proper administration of justice (one Crown, seven defence). All of these eight applications were also not considered to be relevant.

Only one of the 37 applications that we reviewed at Phase 2 sought to admit evidence demonstrating that the complainer was subject to a condition or predisposition (section 275(1)(a)(ii)). This was a defence application that otherwise comprehensively addressed the three cumulative tests within section 275. The defence sought to lead evidence that the complainer had a condition which manifested itself in lying or attention seeking behaviour. The application was refused – no reasons were given, but the application did not appear to fulfil the criteria outlined in HMA v Selfridge,^[109] including that the medical report did not specify that the complainer's condition, as a matter of fact, resulted in the complainer lying about matters.

Timing of applications

371. The 1995 Act requires that section 275 applications are made not later than seven clear days before the preliminary hearing in a High Court case. Of the 37 applications:

• 19 were lodged timeously (three by the Crown and 16 by the defence)
• 18 were lodged late (nine Crown, nine defence)

372. While we were able to establish if applications were on time or late, it was often difficult to establish from the records available the exact date that the applications were lodged.

373. Five of the Crown's nine late applications related to its change in policy regarding docket applications and the introduction of OI 2/21. This policy change resulted in staff revisiting ongoing cases and making new applications. Of the other four late applications:

• the reasons two were late are unknown
• one application was drafted at a very early stage but there appears to have been an administrative error regarding its lodging
• one application was lodged on time but was subsequently withdrawn and a new application was lodged (late) at a continued preliminary hearing.

374. Of the 18 late applications:

• six were lodged at the first preliminary hearing (two by the Crown)
• four were lodged at a second preliminary hearing (two by the Crown)
• three were lodged at a third preliminary hearing (two docket applications by the Crown)
• one was lodged at a fifth preliminary hearing (a docket application by the Crown)
• three were lodged at trial (including a docket application by the Crown)
• one application was lodged late but was withdrawn prior to the next calling of the case (a docket application by the Crown).

375. Of the nine defence applications that were lodged late, the Crown did not oppose five on the basis of lateness. The attitude of the Crown to the other four application could not be established from the case records. Of the nine Crown applications that were lodged late, the defence only opposed one on the basis of lateness (four were not opposed, the attitude of the defence could not be established in three, and one was withdrawn).

376. Of the 18 late applications, the outcome of one late Crown application was not known. Of the remaining 17, there was a record of the special cause for lateness in only seven. Of the 17 late applications where the outcome is known:

• nine were granted in full (five Crown, four defence)
• four were refused (one Crown, three defence)
• four were withdrawn (two Crown, two defence).

377. The refused Crown application was refused on the basis that it was late (this was the application that was late due to an administrative error). In relation to two of the refused late defence applications, the records do not show if the applications were refused for lateness or on their merits. The third application was refused as irrelevant, rather than for lateness.

Outcome of applications

378. The 37 section 275 applications were decided at various stages in the case:

• 10 were decided at the first preliminary hearing
• nine at the second preliminary hearing
• five at the third preliminary hearing
• two at the fourth preliminary hearing
• two at the fifth preliminary hearing
• five at the sixth preliminary hearing
• four at the trial.

379. The outcome of one Crown application is unknown. Of the remaining 36 applications:

• 12 were granted in full (six Crown, six defence)
• eight were granted in part (all defence applications)
• nine were refused (two Crown, seven defence)
• seven were withdrawn (three Crown, four defence).

380. Of the 12 Crown applications, three were withdrawn and the outcome of one is unknown. Of the remaining eight:

• the reason for granting six was that the probative value of the evidence was significant and relevant to the credibility and reliability of the complainer
• the reasons for refusing two were that one was late, and one was unnecessary.

381. Of the 25 defence applications, the Crown:

• opposed seven in full (five of which were refused, and two were granted in part)
• opposed five in part (one of which was granted, four were granted in part)
• did not oppose seven (five of which were granted, two were granted in part)
• the Crown's attitude is not known for six applications (two of which were refused, four were withdrawn by the defence).

382. Generally, where we identified the defence applications as being deficient in some way, it is reassuring that they were opposed or opposed in part by the Crown. In particular, all of those that we considered to be wholly irrelevant at common law or lacking in significant probative value, and where the Crown's attitude towards them was known, were opposed in full by the Crown.

383. Of the 14 defence applications that were granted or granted in part, the reason for allowing the evidence sought in 12 applications was that the evidence was relevant to the credibility and reliability of the complainer. No reason was given regarding one application that was allowed, and the court minute noting the reason was missing from the case records in respect of another application. Where the defence application was refused or partly refused, reasons included the evidence not being relevant and the evidence not being struck at by section 274.

384. Seven applications were withdrawn (three Crown, four defence). Applications were withdrawn at various stages. The reasons four applications were withdrawn are not known (one Crown, three defence) – all four either contained errors or sought to admit irrelevant evidence. Where the reason was known:

• one Crown application was withdrawn because it was no longer necessary after the docket to which it related was deleted
• one Crown application was withdrawn after the advocate depute decided the evidence was not struck at by section 274
• one defence application was withdrawn after the Crown deserted the charge on the indictment to which the application related.

385. In relation to six of the seven withdrawn applications, the complainer had already been told of its existence and precognosced on its contents.

Adjournments and continued preliminary hearings

386. The hearing of four cases featuring 10 applications was adjourned to a further preliminary hearing. In three cases featuring nine applications, the hearing of the applications was adjourned to allow the Crown to obtain the views of the complainers. In one case, the hearing of one application was adjourned pending the recovery of medical documents required for an expert medical report in relation to a section 275 application.

387. More generally, we found all of the 15 cases that we reviewed at Phase 2 contained section 75A minutes which administratively adjourned preliminary hearings to a further date. Eight cases had between one and five adjournments relating to Covid-19, while seven cases had adjournments for other reasons. Around 10% of the section 75A adjournments in the 15 cases featured issues with section 275 applications as a reason for adjourning the diet administratively.

388. Twelve of the 15 cases had continued preliminary hearings, 10 of which included section 275 applications among the reasons for the continuations. In these cases, we found that 45% of the issues resulting in continued preliminary hearings related to section 275 applications.

Recording of reasons

389. Since its third iteration in February 2021, OI 13/20 has required prosecutors to take a careful note of the court's ruling on section 275 applications, including any reasons given and any conditions imposed. Of the 21 applications we reviewed that were heard after this date, there was an appropriate record of the court's ruling in relation to 18. No record was made of the court's ruling in relation to three applications. The need for an adequate record to be made by the prosecutor at the preliminary hearing is important as we found court minutes often lacked useful information on why applications had been refused (bearing in mind a different prosecutor is likely to conduct the trial).

Engagement with the complainer

390. In the 15 cases we reviewed in Phase 2, the 37 applications related to 26 complainers.

391. The number of complainers about whom applications had been made in each case ranged from one to four:

• in eight cases, there were applications relating to one complainer
• in four cases, there were applications relating to two complainers
• in two cases, there were applications relating to three complainers
• in one case, there were applications relating to four complainers.

392. Generally, applications tended to relate to a single complainer, although sometimes an application related to more than one. Three of the 37 applications we reviewed at Phase 2 related to more than one complainer, all of which were made by the defence. Two applications related to two complainers, and one application related to three complainers.

393. For 13 (50%) of the 26 complainers, there was one application. For 11 (42%) complainers there were two applications and for two (8%) complainers, there were three applications. Where there was more than one application about a complainer, this was because:

• both the Crown and defence made an application (this happened in respect of eight complainers)
• the Crown made a second application about the same complainer, with the second application relating to a docket (two complainers)

• there were two accused and an application was made by each defence counsel about the same complainer (two complainers)
• the defence made a second application after the first was withdrawn (one complainer) or refused (one complainer).

394. For the two complainers who were the subject of three applications, each had two applications made by the Crown and one application by the defence.

395. The Crown has a duty to engage complainers about each application. While there were 26 complainers who required to be contacted, 11 required to be contacted about two applications, and two required to be contacted about three applications. This meant that there were 41 occasions on which a complainer could be contacted about a section 275 application.^[110]

396. In our review, we sought to assess whether complainers were contacted about each application, and the extent to which the requirements in OI 13/20 were fulfilled during that contact. Where there are multiple applications about the same complainer, the complainer would ideally be contacted once to discuss all of the applications. However, this rarely happens in practice as applications are lodged at different times and the Crown generally makes contact with the complainer shortly after each application is lodged. As a result, we assessed each of the 41 occasions the complainers were contacted.

397. It is worth noting that where a complainer was contacted on more than one occasion:

• some of the requirements of OI 13/20 may have been fulfilled on one occasion but not another
• because the same complainer could be contacted at different times about an application, different versions of OI 13/20 (with different requirements) may have been in place on each occasion on which they were contacted.

Relevant law and policy

398. The relevant law and policy that applied on each of the 41 occasions on which complainers were contacted varied. The key dates are:

• 7 October 2020 – the court's judgment in RR, noting that the Crown is under a duty to ascertain the complainer's position in relation to a section 275 application and present that position to the court
• 15 October 2020 – as a result of RR, the form of written record which the Crown and defence must complete regarding their state of preparation was amended to include section 5A. Where there has been a section 275 application, section 5A requires the Crown to indicate whether the complainer has been told of the application, been invited to comment on the accuracy of any allegations within it, and been asked to state any objections to the granting of the application. The new form came into effect immediately
• 12 November 2020 – the Crown issued an updated OI 13/20 to all legal staff and case preparers, reflecting the requirements of RR and the new form of written record. OI 13/20 also set out additional requirements that it expected staff to fulfil, such as advising the complainer of the outcome of the application. OI 13/20 was further amended on 2 February 2021 and 3 August 2021.^[111]

399. As noted at paragraph 395, there were 41 occasions on which a complainer could be contacted about an application. However, on five occasions, the application was lodged and heard prior to RR, meaning that the duty imposed on the Crown by the court had not yet come into effect. At this time, Crown policy was that complainers should be advised of applications as a 'general rule' and the question of whether they should be precognosced about the application's contents should be addressed on a case-by-case basis. We have not therefore assessed the Crown's engagement with the complainer on these occasions as no duty of engagement yet existed (although we noted that no precognition was instructed on any of the five occasions).

400. On a further one occasion, the application was lodged after 15 October 2020 but before 12 November 2020 when the Crown provided guidance to staff on how the duty of engagement should be fulfilled. On this occasion, the complainer was advised of the section 275 application and precognosced on its content, and her views were made known to the court.

401. In respect of one further occasion when a complainer should have been contacted about a section 275 application, the complainer had sadly died prior to the case being reported to the Crown.

402. We therefore sought to assess the Crown's engagement with the complainer on the remaining 34 occasions.

Advising the complainer that a section 275 application has been lodged

403. There were 34 occasions on which the complainer should have been told that a section 275 application had been made. On 29 (85%) of these, the complainer was advised of the application or attempts were made to advise the complainer. On two of the 29 occasions, relating to two applications about the same complainer, the Crown sought to advise the complainer but she declined all contact. Of the remaining five occasions:

• on two occasions, a decision was made not to advise the complainer about a docket application because its content had been the subject of an earlier discussion with the complainer and the complainer's views were already known
• on two occasions, the complainer was not advised of a section 275 application relating to a docket
• on one occasion, the complainer was not engaged about a revised defence application which was an expansion of the original application about which she had already been advised.^[112]

404. On the 27 occasions on which the Crown successfully made contact with the complainer to advise them of the application, all contact was made by telephone by the case preparer.

Precognition of the complainer

405. The Crown is required to precognosce complainers to ascertain their views on the section 275 application, including whether they have any objections to it being granted. On 28 (82%) of the 34 occasions on which complainers should have been precognosced, there was an instruction to precognosce the complainer:

• on 26 occasions, the instruction was given by an advocate depute
• on one occasion, the instruction was given by a senior depute
• on one occasion, there was no record of who gave the instruction.

406. There was no instruction to precognosce the complainer in the remaining six occasions and no precognition took place. On three of these six occasions, it appeared from the records as though a conscious decision was taken not to instruct a precognition because it was thought the complainer's views were already known. On the other three occasions, there was no evidence that precognoscing the complainer had been considered.

407. On five of the 28 occasions where there was an instruction to precognosce the complainer, the complainers were children (aged between 13 and 15) and the instructions were given by Crown Counsel, in accordance with OI 13/20.

408. OI 13/20 states that complainers should be invited to a meeting at which the precognition will take place. If the complainer does not wish to meet or if there is insufficient time to arrange a meeting, the precognition may take place by telephone or by video call.

409. Of the 28 occasions where a precognition of the complainer was instructed, the precognition took place in 26 (93%). On the remaining two occasions, involving the same complainer aged 13, the complainer refused to engage despite efforts made by the case preparer, VIA, her father and other professionals providing support to the complainer.

410. Of the 26 occasions where a precognition took place, all were carried out by the case preparer, five of whom were legally qualified and 21 of whom were not (but whose role is to conduct such work).

411. Of the 26 occasions where a precognition took place:

• 22 (85%) took place at the same time the complainer was advised that a section 275 application had been made
• four (15%) precognitions were arranged in advance.

412. Of the 26 occasions where a precognition took place:

• 25 (96%) took place via telephone. On one of these occasions, a precognition by video call had been arranged, but took place by telephone following a technical difficulty
• one (4%) took place in person.

413. In 15 (58%) of the 26 occasions where a precognition took place, we found no evidence to suggest the complainer had been given a choice as to which format it could take (i.e. by telephone, video call or in person).

414. OI 13/20 states that complainers may be accompanied to the meeting about the section 275 application by an advocacy or support worker or another person if they wish. A supporter was in attendance at only two (8%) of the 26 occasions on which a precognition took place. Both occasions were in respect of the same complainer. The complainer was a child who lived in a care home – the case preparer made contact with the child via a support worker who then attended the meeting.

Timing of the applications

415. In High Court proceedings, the 1995 Act states that section 275 applications shall be made no later than seven clear days before the preliminary hearing. Late applications will only be considered on special cause shown.

416. In our case review, we sought to identify when applications were lodged with a view to understanding how much time the Crown has to engage with the complainer. On seven of the 26 occasions on which precognition took place, we were not able to identify the date of lodging from the case records. Of the remaining 19 occasions:

• on 13 occasions, the application was lodged prior to the first preliminary hearing (of which, five were lodged seven days or fewer before the hearing)
• on six occasions, the application was lodged at a later hearing.

417. We also considered the time between the complainer being advised of the application and the next scheduled hearing for all 26 occasions where a precognition took place (see Chart 6).

418. Chart 6 shows that on 20 of the 26 occasions on which a complainer was precognosced, there were seven days or fewer between the complainer being advised of the application and the next scheduled hearing. This meant there was little time to arrange a precognition or for the complainer to consider the application and form a view.^[113]

During the precognition meeting

419. OI 13/20 states that the law and practice around section 275 applications should be explained to the complainer during the precognition meeting. This was done on all 19 occasions where it was relevant.^[114] However, some case preparers found it difficult to summarise the law accurately, suggesting that a written summary could be made available for all case preparers to use. This could also be shared with complainers.

420. OI 13/20 notes that it will not generally be necessary to show the complainer a copy of the application, but that complainers should be advised of its 'full content'. All of the complainers who were precognosced were advised of the evidence sought to be admitted or elicited in the application, but not necessarily the full contents of the applications (such as the reasons why the evidence is relevant or the inferences to be drawn from the evidence). None of the complainers were shown a copy of the application. A note of the complainer's views towards the application was made by the case preparer on all occasions except one, where the case preparer failed to do so.

421. OI 13/20 states that complainers should be advised that their position on the facts alleged in the application and attitude towards the application will be made known to the court. Of the 19 occasions where this was relevant:

• on 15 occasions, the complainer was advised their views would be shared with the court
• on four occasions, the complainer was not so advised. In relation to three occasions, the case preparer was not aware this was a requirement, and in relation to the fourth occasion, the case preparer chose not to tell the complainer their views would be shared with the court. The case preparer felt doing so may cause the complainer to disengage.

422. OI 13/20 states that where time permits and if the complainer wishes it, the complainer should be written to post-precognition with a note of what the complainer said and what will be done with the information. Of the 19 occasions where this was relevant:

• on 17 occasions, no written summary of the meeting was provided to the complainer
• on two occasions, a written summary was provided and the complainer was advised to get in touch with the case preparer if they disagreed with anything.^[115]

423. In August 2021, OI 13/20 was updated to say that complainers should be advised of the likely outcome of the section 275 application during the precognition meeting. This new instruction only applied to three of the occasions that we reviewed. On none of these occasions was the complainer advised of the likely outcome.

Complainers' views on section 275 applications

424. The judgment in RR requires that the Crown ask the complainer to state whether they have any objections to the granting of a section 275 applications. OI 13/20 reiterates this requirement. Of the 26 occasions where a precognition took place:

• on 11 (42%) occasions, the complainer was not opposed to the granting of the application
• on six (23%), the complainer was fully opposed to the granting of the application, and disputed the evidence the application sought to admit or elicit
• on eight (31%), the complainer was partly opposed to the granting of the application
• on one (4%), the complainer had no firm view as to whether she opposed the application.

425. Whether or not the complainers opposed the granting of the applications, many expressed their shock, hurt, anger, anxiety and confusion in response to being told of the applications. However, complainers also frequently understood why the application to admit or elicit the evidence was being made.

426. We considered whether the attitudes of the complainer and Crown towards an application were aligned. Of the 26 occasions, we found that:

• on 13 (50%) occasions, there was no suggestion that the views of the complainer and the Crown differed (these occasions related to three Crown and 10 defence applications)

• on nine (35%) occasions, there was evidence of differing views between the complainer and the Crown (these related to two Crown applications and seven defence applications)
• on four (12%) occasions, we were unable to establish the views of the Crown. All concerned defence applications. The views of the Crown had not been made known to the complainer at the precognition meeting and, on three occasions, the applications were withdrawn before the Crown had to articulate its position at the preliminary hearing. On the fourth occasion, the application was heard at trial and no record was available at the time of our review of the Crown's attitude towards the application.

427. Where the views of the complainer and the Crown differed, this was for various reasons such as:

• the defence application was opposed by the complainer but not the Crown
• the Crown application was opposed by the complainer
• the defence applications were opposed in part by the complainer and in different or in fewer parts by the Crown.

Advising complainer of outcome

428. OI 13/20 states that complainers must be advised of the outcome of section 275 applications. Of the 26 occasions where the complainer was precognosced:

• on 12 (46%) occasions, the complainer was advised of the outcome
• on 14 (54%) occasions, the complainer was not advised of the outcome.

Appeals

429. Leave to appeal was granted in relation to two defence applications. In relation to one, there appears to have been no communication with the complainer despite there being an instruction to make contact with her. In relation to the second, the case preparer was not even aware of the appeal and therefore had not been in contact with the complainer about it.

Overall assessment of communication with the complainer

430. We sought to make an overall assessment of how well the Crown engaged with complainers regarding section 275 applications. Where a complainer was the subject of more than one application and was contacted by the Crown on multiple occasions, we have based our assessment on all of the occasions on which they were contacted. Our assessment took account of the relevant law and policy at the time the section 275 applications were dealt with, including the requirements of RR and the relevant Crown policy. We assessed the engagement as either good, reasonable or unsatisfactory:

• good – the requirements of RR were fulfilled and the relevant policy was followed in full
• reasonable – the requirements of RR were fulfilled and the relevant policy was mostly followed but there was scope for further improvement
• unsatisfactory – either the requirements of RR were not fulfilled or key elements of the relevant policy were not followed.

431. We assessed the engagement with 21 of the 26 complainers. One complainer had died, and applications in respect of the remaining four complainers were dealt with prior to RR and therefore the new requirements were not applicable.

432. We assessed the engagement regarding section 275 applications to have been good for nine (43%) of the 21 complainers. With the exception of one complainer who refused to engage despite concerted efforts by COPFS, these complainers were informed of the applications, precognosced on their contents and were advised of the outcome. The way in which the engagement was carried out tended to be complainer-led and, in some cases, additional support was offered or arranged.

433. We assessed engagement as being reasonable for eight (38%) complainers. A key issue for these complainers was that most were not informed of the outcome of the application. One complainer was not advised of an appeal regarding a section 275 application in her case, albeit the engagement was otherwise good.

434. We considered the engagement to have been unsatisfactory in respect of four (19%) complainers. This was generally because the complainer had not been told of the application or precognosced on its contents. For one 16-year-old complainer, we assessed the engagement as unsatisfactory as it did not appear that any consideration had been given to her age when advising her of an application relating to sensitive matters, she was not advised of the outcome, nor was she advised of a second application which was an amended version of the first.