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

Footnotes

1. S Cowan, The use of sexual history and bad character evidence in Scottish sexual offences trials (EHRC, 2020).

2. O Brooks-Hay, M Burman & L Bradley, Justice Journeys: informing policy and practice through lived experience of victims-survivors of rape and serious sexual assault (2019).

3. Section 36 of the 1985 Act inserted provisions regulating the use of sexual history evidence into the Criminal Procedure (Scotland) Act 1975.

4. Sexual Offences (Procedure and Evidence) (Scotland) Act 2002.

5. The follow paragraphs briefly summarise the provisions. The full text can be found at www.legislation.gov.uk.

6. Sexual Offences (Procedure and Evidence) (Scotland) Bill: Policy Memorandum (2001).

7. Including RN v HMA [2020] HCJAC 3; CH v HMA [2020] HCJAC 43; Macdonald v HMA [2020] HCJAC 21; RR v HMA [2021] HCJAC 21; XY v HMA [2022] HCJAC 2.

8. Macdonald v HMA [2020] HCJAC 21 at para 47.

9. CH v HMA [2020] HCJAC 43 at para 6.

10. CH v HMA [2020] HCJAC 43 at para 109.

11. Kerseboom v HMA [2016] HCJAC 51 at paras 10 and 16; LL v HMA [2018] HCJAC 35 at paras 9 and 22; P(M) v HMA 2022 SCCR 1.

12. Macdonald v HMA [2020] HCJAC 21 at para 34; LL v HMA [2018] HCJAC 35 at para 11; W(J) v HMA [2021] HCJAC 41 at para 17; CH v HMA [2020] HCJAC 43 at para 27; W(A) v HMA 2022 SCCR 109 at paras 27, 41 and 43. In Macdonald, the Lord Justice General highlighted the importance of the Crown opposing defence applications which seek to admit evidence that is inadmissible at common law or under section 274 as, 'Without such opposition… the court may find it difficult to exclude the proposed evidence… when it is relatively ignorant, at the stage of determining the application, of the totality of the evidence which is to be adduced by the Crown at the subsequent trial.' (para 34).

13. HMA v JG [2019] HCJ 71 at paras 35 and 43; RN v HMA [2020] HCJAC 3 at paras 6, 7, 8 and 26; W(J) v HMA [2021] HCJAC 41 at para 28; HMA v Selfridge 2021 SLT 976 at paras 40-41; CH v HMA [2020] HCJAC 43 at paras 42-44.

14. RN v HMA [2020] HCJAC 3 at para 20; Macdonald v HMA [2020] HCJAC 21 at para 36.

15. Macdonald v HMA [2020] HCJAC 21 at para 47; Dreghorn v HMA [2015] HCJAC 69 at para 39.

16. W(J) v HMA [2021] HCJAC 41 at para 26.

17. RR v HMA [2021] HCJAC 21. The case of RR and the Crown's duty of engagement with the complainer is discussed in more detail at Chapter 5.

18. Section 1(3)(a) and (d) of the Victims and Witnesses (Scotland) Act 2014 require that the complainer be able to obtain information about what is happening in proceedings and, in so far as is appropriate, be able to participate effectively in them.

19. S Cowan, The use of sexual history and bad character evidence in Scottish sexual offences trials (EHRC, 2020).

20. SCTS, Improving the management of sexual offence cases: Final report from the Lord Justice Clerk's Review Group (March 2021).

21. On independent legal representation, see also E P H Keane & Tony Convery, Proposal for independent legal representation for complainers where an application is made to lead evidence of their sexual history or character (2020).

22. Scottish Government, Improving victims' experiences of the justice system: consultation (May 2022). The outcome of the consultation was not yet known at the time of writing this report.

23. While we sought to engage with a range of organisations who may support complainers about whom section 275 applications had been made, we were unable to hear the views of complainers directly. This was due to similar activity being carried out by Professor Cowan around the same time and the wish to avoid duplication and over-consultation.

24. S Cowan, The use of sexual history and bad character evidence in Scottish sexual offences trials (EHRC, 2020).

25. M Burman, L Jamieson, J Nicholson & O Brooks, Impact of aspects of the law of evidence in sexual offence trials: an evaluation study (2007).

26. Cabinet Secretary for Justice, Letter to Margaret Mitchell MSP, Convenor, Justice Committee (29 June 2016).

27. E P H Keane & T Convery, Proposal for independent legal representation for complainers where an application is made to lead evidence of their sexual history or character (2020) at page 35.

28. We were notified of only a few cases at sheriff and jury and summary levels and from only some sheriffdoms, making it clear that this data in particular was only partial. We have a higher degree of confidence in the data compiled for High Court cases.

29. The two additional sources were (1) a log of section 275 applications made in relation to dockets, following the introduction of Operational Instruction 2 of 21 in March 2021; and (2) a 'petition tracker' maintained by COPFS to record various types of applications made in High Court cases. While there was some duplication in the section 275 applications recorded in each source, each source also identified applications not identified anywhere else.

30. The results of our Phase 1 case review are statistically significant with a confidence interval of 95%±10%.

31. For example, in Phase 2, we only reviewed cases where the outcome of the section 275 applications was known, and we sought a balance of cases with particular features identified at Phase 1, such as cases where there had been single and multiple applications, where applications had been made by the Crown or defence or both, etc.

32. Docket evidence is added to an indictment to give notice of the Crown's intention to lead evidence of a crime not libelled. The approach is necessary for the application of mutual corroboration in order to link the criminal conduct in the docket with the crime on the indictment.

33. The pathway document is an electronic 'living' document designed to record key milestones and the progress of a case in one place.

34. Including RN v HMA [2020] HCJAC 3; CH v HMA [2020] HCJAC 43; Macdonald v HMA [2020] HCJAC 21; RR v HMA [2021] HCJAC 21; AW and HB v HMA [2022] HCJAC 16.

35. Donegan v HMA [2019] HCJAC 10 at para 54.

36. Donegan v HMA [2019] HCJAC 10 at para 56.

37. HMA v JG [2019] HCJ 71 at para 36.

38. Macdonald v HMA [2020] HCJAC 21 at para 2.

39. Macdonald v HMA [2020] HCJAC 21 at para 34.

40. CH v HMA [2020] HCJAC 43.

41. RR v HMA [2021] HCJAC 21.

42. Form 9A.4: Form of written record of state of preparation in High Court cases; and Form 9.3A: Form of joint written record of state of preparation in sheriff and jury cases. Section 5A of both forms address section 275 applications.

43. IPS, Thematic review of the investigation and prosecution of sexual crimes (2017), para 47.

44. Knowledge Bank is a COPFS information database containing legal and non-legal guidance.

45. Judicial Institute for Scotland, Preliminary Hearings e-Bench Book (June 2022).

46. Judicial Institute for Scotland, e-Jury Manual (August 2022).

47. Prior to the dedicated section 275 training course being developed, a one-off training session for indicters on section 275 applications was also delivered by an advocate depute.

48. The Victims Taskforce has commissioned a knowledge and skills framework on a Trauma Informed and Responsive Justice Workforce for Witnesses. The draft framework was shared with key justice sector organisations in March 2022 for consultation and review.

49. This is discussed further, with examples, in Chapter 5.

50. The investigative agreement sets out a strategy for the investigation and preparation of a case. It sets out key matters relevant to the prosecution, including the charges to be investigated, how these will be proved, the parameters of the investigation and how the evidence will be presented.

51. OI 13/20, para 9.

52. OI 13/20, para 9.

53. SJ v HMA [2020] HCJAC 18; HMA v JW 2020 SCCR 174.

54. See paras 55-56.

55. This was subsequently withdrawn.

56. The parts of the applications that we considered to be unnecessary were subsequently withdrawn.

57. Judicial Institute for Scotland, Preliminary Hearings e-Bench Book (June 2022) at 9.3.3.

58. Section 275B(1), 1995 Act.

59. OI 2/21.

60. The meaning of 'special cause' was examined in an as yet unreported pre-trial case in September 2022, the details of which will be available in the Preliminary Hearings e-Bench Book.

61. This duty is discussed further at Chapter 5.

62. See para 11.

63. See, for example, RN v HMA [2020] HCJAC 3 – 'It is not open to the court to abrogate responsibility for addressing these issues in detail simply because the Crown does not oppose an application.'

64. Judicial Institute for Scotland, Preliminary Hearings e-Bench Book (June 2022) at 9.3.2.

65. OI 13/20, para 25.

66. A previous relevant conviction is a conviction for an offence falling within the scope of section 288C of the 1995 Act – a sexual offence or one with a significant sexual aspect.

67. Judicial Institute for Scotland, Preliminary Hearings e-Bench Book (June 2022) at 9.6.

68. RR v HMA [2021] HCJAC 21.

69. The nobile officium is the extraordinary equitable jurisdiction of the High Court of Justiciary (or the Court of Session in civil cases) to provide a remedy where none exists.

70. RR v HMA [2021] HCJAC 21 at para 52.

71. COPFS first revised OI 13/20 in November 2020 in the immediate aftermath of RR, and then updated it again in February 2021 and August 2021.

72. We assessed cases against the version of OI 13/20 that was in place at the relevant time.

73. While no comprehensive baseline data is available, it is worth noting that there were five occasions in the cases we reviewed at Phase 2 on which the application was lodged and heard prior to RR – no precognition was instructed on any of the five occasions.

74. On two of the 29 occasions, relating to two applications about the same complainer, the Crown sought to engage the complainer but she declined all contact.

75. See para 110.

76. See from para 125.

77. Scottish Government, Improving victims' experiences of the justice system: consultation (May 2022). The consultation had only recently closed at the time of writing this report and the outcome was not yet known.

78. Scottish Government, The Vision for Justice in Scotland (2022).

79. The reason these complainers and applications fell within our sample is that other applications in respect of the same or other complainers in the same case were dealt with at a later date.

80. OI 2/21.

81. SCTS, Improving the management of sexual offence cases – Final report from the Lord Justice Clerk's Review Group (March 2021).

82. Scottish Government, Improving victims' experiences of the justice system (May 2022).

83. See para 32 and Table 3.

84. See from para 67.

85. An interlocutor is any decision of the court short of final judgment.

86. The results of our Phase 1 case review are statistically significant with a confidence interval of 95%±10%.

87. For example, in Phase 2, we only reviewed cases where the outcome of the section 275 applications were known, and we sought a balance of cases with particular features identified at Phase 1 such as cases where there had been single and multiple applications, where applications had been made by the Crown and defence or both, etc.

88. The Sexual Offences (Scotland) Act 2009 (the 2009 Act) came into force on 1 December 2010.

89. The conviction data in Table 5 should not be compared with the conviction rates in the National Statistics produced by the Scottish Government in its Criminal Proceedings in Scotland series because of different methods used in compiling the data.

90. A case which is deserted simpliciter is to bring a prosecution for a crime or offence on indictment or summary complaint to an end without the facts being determined and means that the case is at an end. This prevents the prosecution re-raising the case.

91. Where an accused is unfit to stand trial, an examination of facts takes place instead. In this case, the facts were established.

92. The Crown's Older Person Policy considers complainers aged 60 and above to be 'older persons' so that they can be referred to VIA to ensure that they can access the necessary support and information.

93. The age groupings for those under 18 are those used by the Sexual Offences (Scotland) Act 2009 (that is, offences against those under 13, those aged 13 to 15, and those aged 16 and 17).

94. Data from Police Scotland suggest that just over a quarter (26%) of sexual crime in 2020-21 was recorded at least one year after it occurred. This provides an indication of the scale of historic reporting.

95. OI 2/21.

96. Data based on the status of the accused at the time of the original indictment (in a number of cases, accused persons who previously had been indicted were subsequently released on bail prior to their trial, while some accused persons who had been on bail were subsequently remanded or re-indicted and remanded).

97. For example, in one case, there were two accused who each made applications regarding the same complainer.

98. In five of those cases, the Crown application related to two complainers, while in one case, the application related to three complainers.

99. In four of those cases, the defence application related to two complainers while in one case, the application related to three complainers.

100. Includes offences under sections 1 (rape) and 18 (rape of a young child) of the Sexual Offences (Scotland) Act 2009, section 5 of the Sexual Offences (Scotland) Act 1976 and section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (now considered rape) and the common law crime of rape.

101. Applications were deemed unnecessary because they were not struck at by section 274.

102. We were not able to ascertain the defence's attitude in relation to 23 applications from the case records to which we had access; four applications had not yet been considered by the court and the defence's attitude was therefore not yet known; and the Crown withdrew one application before the defence's attitude was known.

103. These categories were based on those used in M Burman, L Jamieson, J Nicholson & O Brooks, Impact of aspects of the law of evidence in sexual offence trials: an evaluation study (2007). In that study, nine categories of evidence were used. We have split the ninth category used in that study (the behaviour of the complainer after the alleged offence) into two – behaviour after the alleged offence not involving the accused, and involving the accused.

104. A factor contributing to the Crown's high rate of targeted applications is that all of its applications relating to dockets, of which there were 28, sought to elicit or admit evidence from only one category of evidence.

105. We broke down the applications into requests for evidence from each category, and where the category related to more than one complainer, a request was counted for each complainer.

106. Burman et al (2007), from para 4.47

107. HMA v JW 2020 SCCR 174 (paras 32-34); SJ v HMA [2020] HCJAC 18.

108. CH v HMA [2020] HCJAC 43 at para 34.

109. HMA v Selfridge 2021 SLT 976.

110. Viewed another way, there were 37 applications, but two applications related to two complainers and one application related to three complainers – totalling 41 occasions on which a complainer required to be contacted about an application.

111. Changes included: on 2 February 2021, OI 13/20 was updated to remind staff to keep a record of attempts to engage the complainer, and to remind prosecutors to make a careful note of the court's ruling on a section 275 application, including reasons given or conditions imposed; and on 3 August 2021, OI 13/20 was updated with a new requirement that complainers be told the likely outcome of applications.

112. For further commentary on these cases, see para 156.

113. On the two occasions in Chart 6 on which the complainer was advised of the application 12 days before the next scheduled hearing, the hearing was the preliminary hearing. For the four occasions on which the complainers were advised further in advance, the first preliminary hearing had already taken place.

114. It was not relevant in seven of the 26 occasions when a precognition took place due to the timing of the precognition and the requirements in place at the time.

115. See from para 198 for further commentary on this aspect of OI 13/20.