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

1 Context and methodology

Legal context

1. Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials. The provisions are designed to protect complainers giving evidence from irrelevant, intrusive and often distressing questioning.

2. Sometimes known as 'rape shield' laws, specific provisions to regulate the use of sexual history evidence were first introduced in Scotland by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.^[3] These provisions were later extended in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). In response to concerns about the operation of those provisions and following a consultation by the then Scottish Executive, the provisions in the 1995 Act were replaced by new sections 274 and 275 in 2002.^[4]

Sections 274 and 275^[5]

3. Sections 274 and 275 of the 1995 Act were intended to protect complainers in sexual offence trials from inappropriate questioning about their sexual history and character when giving evidence in court. In particular, they were designed to discourage the use of evidence of limited relevance, where the primary purpose of the evidence is to undermine the credibility of the complainer or divert attention from the issues that require to be determined at trial.^[6] Sections 274 and 275 apply to trials for sexual offences heard under solemn and summary procedure, and apply equally to evidence sought to be led or elicited by either the Crown or the defence.

4. Section 274 creates a general rule that evidence or questioning falling within certain categories is not admissible in sexual offence cases. The categories cover evidence which shows or tends to show that the complainer:

• is not of good character
• has engaged in sexual behaviour not forming part of the subject matter of the charge
• has engaged in other behaviour or been subject to any condition or predisposition that may lead to an inference that the complainer is likely to have consented to the acts forming the subject matter of the charge or is not a credible or reliable witness.

5. Section 275 allows the court, on application made to it, to admit evidence or allow questioning falling within the general prohibition at section 274, so long as the evidence meets three cumulative tests. Set out in section 275(1), these tests relate to the specificity, relevance and probative value of the evidence. Its probative value must be significant and must outweigh the risk of prejudice to the proper administration of justice, having regard to the protection of the complainer's dignity and privacy.

6. Sections 274 and 275 restrict the admissibility of evidence which would otherwise be permissible at common law. Thus, prior to considering whether evidence falls within the prohibited categories in section 274, the court must first consider whether the evidence is admissible at common law. If inadmissible at common law, the evidence cannot be admitted via section 275.

7. Applications made under section 275 must be in writing, and must be made not less than seven clear days before the preliminary hearing in the High Court or 14 clear days before the trial diet in the Sheriff Court. Section 275(3) states that applications shall set out:

• the evidence sought to be admitted or elicited
• the nature of any questioning proposed
• the issues at the trial to which the evidence is considered to be relevant
• the reasons why that evidence is considered relevant to those issues
• the inferences which the applicant proposes to submit to the court that it should draw from the evidence.

8. Where the court grants an application to admit evidence or allow questioning about the sexual history or character of the complainer, section 275(7) requires the court to state what evidence or questioning it is permitting, the reasons for its determination that the evidence or questioning is admissible, and the issues at trial to which the evidence is relevant. Section 275(6) permits the court to make its decision to grant an application subject to conditions.

9. Where the court grants a section 275 application made by the accused, section 275A states that, 'the prosecutor shall forthwith place before the presiding judge any previous relevant conviction of the accused'. Subject to an objection by the accused, previous convictions must be laid before the jury or, in summary proceedings, taken into consideration by the judge.

Recent case law

10. In recent years, a series of cases^[7] have sought to clarify the import of sections 274 and 275 and to set out the correct approach to be taken to section 275 applications. These cases have been a response to challenges faced by the courts, the Crown and the defence in following the 'basic rules of evidence',^[8] and some judges and sheriffs considering what is 'fair, looking primarily, if not exclusively, at the interests of the accused rather than, in addition to his Article 6 right to a fair trial, the wider interests of justice, including the rights of the complainer.'^[9] Clarification has been required because, as Lord Turnbull has noted, the 'legislative provisions have consistently posed challenges, to both practitioners and judges alike, in determining their proper scope and application.'^[10]

11. A review of the recent case law highlights some of the challenges encountered by all parties in making, responding to and determining applications regarding sexual history or character evidence, and the appropriate control of the nature and scope of questioning during trial. These include:

• consideration of the common law rules of evidence before applying the statutory provisions^[11]
• a lack of opposition by the Crown to some applications (either in whole or in part) made by the defence^[12]
• deficiencies in the quality of applications, including failures to address all three tests set out in section 275(1) or fulfil the requirements of section 275(3)^[13]
• a failure by the court in some cases to state or record reasons for the granting of applications^[14]
• a lack of intervention or objection by the courts and the Crown to inappropriate or prohibited questioning during cross-examination of witnesses at trial.^[15]

12. As the Lord Justice Clerk noted, recent cases have not been a restatement of the law, but will have led 'to an enhanced, if belated, appreciation of the full significance of the legislation and how it should operate'.^[16]

13. In RR v HMA,^[17] the court clarified the Crown's duties when engaging with complainers regarding section 275 applications. By virtue of the Victims and Witnesses (Scotland) Act 2014^[18] and Article 8 (right to privacy) of the European Convention on Human Rights, the court held that the Crown has a duty to ascertain a complainer's position in relation to a section 275 application and to present that position to the court, irrespective of the Crown's own attitude. This will require that the complainer must be told of the application, invited to comment on the accuracy of any allegations within it, and be asked to state any objections to the granting of the application.

Broader research and policy context

14. In August 2020, the Equality and Human Rights Commission (EHRC) published research carried out by Professor Sharon Cowan on the use of sexual history and bad character evidence in Scottish sexual offence trials.^[19] This research provides an overview of the legislation, case law and literature, and compares the situation in Scotland with that in other jurisdictions. Professor Cowan notes that there appears to be room for improvement in the operation of the provisions regulating the use of sexual history and character evidence in Scotland, particularly in relation to protecting the dignity and privacy of the complainer. She highlights several areas for further work so that we can better understand how the law is being implemented and what change may be required. These include:

• a review of COPFS practice in relation to sexual history and character evidence
• the need for robust and transparent official statistical data on the operation of sections 274 and 275
• a programme of research on the use of sexual history and character evidence at trial
• consideration of further legal and procedural reform, including whether complainers should have access to state funded independent legal representation in section 275 hearings.

15. Professor Cowan is currently undertaking further research on sexual history and character evidence which she expects to publish in 2023.

16. In 2021, the Lord Justice Clerk, Lady Dorrian, published a report on improving the management of sexual offence cases.^[20] The report was the product of a review group chaired by Lady Dorrian and comprising representatives from a range of organisations operating in the criminal justice system, including COPFS. The report notes that a number of themes emerged during the review group's discussions including, for example, the provision of information to and communication with complainers, delays in the processing of cases, and concerns over privacy and the risk of re-traumatisation. The report makes a range of recommendations, including the creation of a specialist sexual offences court using trauma-informed practices and procedure, greater use of pre-recorded evidence and improved communication with complainers. The report also recommends that independent legal representation be made available to complainers in connection with section 275 applications and any appeals therefrom.^[21]

17. A recent consultation by the Scottish Government on improving victims' experiences of the justice system has sought to address some of the recommendations in Lady Dorrian's report.^[22] The consultation proposed the introduction of a right to publicly funded independent legal representation for complainers in relation to section 275 applications.

Scope of inspection

18. During this inspection, we have examined how the Crown makes and responds to section 275 applications. We have focused almost entirely on the Crown's approach in High Court sexual offence cases as this has been where the majority of section 275 applications have arisen. However, we have also given brief consideration to the Crown's approach to section 275 applications in the Sheriff Court. We have considered:

• what data is available about the operation of section 275 and the extent to which this is used to inform practice or policy development (chapter 2)
• how well COPFS has responded to recent case law and the court's clarification of its role in respect of section 275 applications (chapter 3)
• how well COPFS supports its staff to manage section 275 applications appropriately. This has included consideration of the policy, guidance and training available to support staff in their decision making and the extent to which staff understand the issues and are aware of their role and what is expected of them (chapter 3)
• whether there is an appropriate process in place for managing section 275 applications and the extent to which that process is being followed (chapter 4)
• how well the Crown is fulfilling its duty to engage with complainers as set out in RR v HMA (chapter 5)
• how section 275 applications are managed by the Crown in the Sheriff Court, briefly highlighting practice which varies from that in the High Court (chapter 6).

Methodology

19. To support our inspection, we gathered evidence from a range of sources including:

• a review of Crown policies, guidance, procedures, data and other documentation relating to sections 274 and 275
• interviews with over 40 COPFS personnel involved in managing section 275 applications, including case preparers, deputes, senior managers, administrative staff and advocate deputes
• observation of the training on sexual history and character evidence delivered to COPFS staff
• interviews with external stakeholders including members of the judiciary, defence counsel and Rape Crisis Scotland^[23]
• a review of cases in which section 275 applications had been made.

20. Our case review was split into three 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
• Phase 2 – we carried out a more in-depth review of 15 cases that had already been reviewed at Phase 1, with a particular focus on how the Crown engaged with complainers regarding applications
• Phase 3 – we reviewed a small number of Sheriff Court cases in which section 275 applications had been made.

21. The purpose of our case review was to:

• better understand how the Crown makes and responds to section 275 applications
• assess how and to what extent policy and guidance on section 275 applications is being implemented in practice.

22. An additional objective of Phase 1 was to gain a broader understanding of recent section 275 applications and contribute towards addressing the gap in knowledge and the lack of data about section 275 applications highlighted by Professor Cowan in 2020.

23. Further details about our case review and our findings can be found at Appendix 1. The findings are also referred to throughout this report.

24. Our inspection did not include observation of prosecutors at preliminary hearings at which section 275 applications are heard or of sexual offence trials. This was because carrying out court observations would have significantly extended the scale of our inspection and the resources required, and because court observations will form a key part of Professor Cowan's further research on sexual history and character evidence. Given that both our inspection and her research are financed by the public purse, we were keen to avoid duplication of effort and maximise value for money.