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

2 Data on section 275 applications

25. During our inspection, we considered what data is available about the operation of section 275. We were keen to obtain data on section 275 applications for the following reasons:

• to better understand how often the Crown and defence make applications, how often the Crown opposes applications, what applications are about and how often applications are granted or refused
• to help identify cases in which section 275 applications had been made so that we could review how those applications had been managed by COPFS
• to assess the extent to which COPFS uses available data to inform policy or practice development.

26. At the outset of our inspection, we were aware that there was a lack of publicly available data, as highlighted by Professor Cowan in 2020:

'There is an absence of robust and transparent official statistical data, published regularly, on how sections 274 and 275, and accompanying procedural rules, operate in practice. Without this sort of data, there is little we can say with confidence about basic aspects of how the current legislation is working.'^[24]

27. Our inspection confirmed that as well as an absence of published data, there was a lack of internal data within COPFS regarding section 275 applications. This meant there was little opportunity for the organisation to gain a strategic understanding of how often it is making applications, whether those applications are successful, how often it is opposing applications and whether such opposition is supported by the court. Moreover, there was little opportunity to use any quantitative data to inform learning for staff or to inform policy or practice development. New administrative processes introduced during the course of our inspection may help to address the absence of data, at least in part (see paragraph 51).

What did we know about section 275 applications?

28. Despite the lack of robust and regularly published statistical data, there is some limited data available about section 275 applications.

29. In 2007, Burman et al published research on the operation of sections 274 and 275 following their revision by the Sexual Offences (Procedure and Evidence) Scotland Act 2002.^[25] Commissioned by the then Scottish Executive, the purpose of the research was to evaluate the impact of the legislation. It involved mapping all sexual offences indicted to the High Court over 12 months in 2004-05 as well as analysis and observation of a sample of sexual offence trials. It found that:

• 45% of the 231 cases featured a section 275 application (not all of the cases proceeded to trial)
• 72% of trials included a section 275 application
• 30% of trials included multiple applications, although in no case did the Crown make more than one application
• 25% of applications were made by the Crown and 75% by the defence
• 19% of trials included applications by both the Crown and the defence
• only 7% of applications were not allowed, although others were partially refused, amended or restrictions were imposed meaning that a significant proportion of applications were modified
• in the 88 trials that included applications, there were 118 applications – a rate of 1.3 per trial
• the Crown objected to defence applications in 31% of the applications the researchers studied in detail
• the type of evidence sought to be led under section 275 applications made at trial most often related to the general character of the complainer, the sexual history of the complainer (other than with the accused) and the complainer's past sexual history with the accused.

30. In 2016, the Cabinet Secretary for Justice published data on section 275 applications following a three-month monitoring exercise by COPFS and the Scottish Courts and Tribunals Service (SCTS) (see Table 1).^[26] This data shows that 91% of applications were made in the High Court, 11% of applications were opposed and 84% of applications were granted in full or in part. Only 16% of applications were refused in their entirety.

31. More recently, in their paper on a proposal for independent legal representation for complainers about whom section 275 applications are made, Keane and Convery cite data supplied by SCTS in response to their freedom of information request (see Table 2).^[27] This data shows that 90% of applications were made in the High Court. Although not directly comparable, the data also suggests a substantial increase in the frequency of section 275 applications since 2016.

What did we find out about section 275 applications?

32. To support our inspection, we made our own request to SCTS regarding the number of section 275 applications each year between 2018-19 and 2020-21, and asked for part-year data between 1 January 2021 to 30 June 2021 (see Table 3). The part-year data was to match the sample period from which we planned to draw cases for review (see paragraph 38).

33. Table 3 shows an increase of 10% in the number of applications between 2018-19 and 2019-20, before a significant decrease of 30% between 2019-20 and 2020-21. This decrease is likely associated with the delays experienced in progressing cases to trial as a result of the Covid-19 pandemic. The data for the first six months of 2021 suggests an increase in the frequency of section 275 applications to a level more similar to that pre-pandemic.

34. It is worth noting that the Sheriff Court data supplied by SCTS relates only to Sheriff Court solemn cases, but section 275 applications are also made in summary cases.

35. As noted above, one reason we sought data on section 275 applications was so that we might identify the cases in which they had been made and review them as part of our inspection methodology. Reviewing the cases would help us assess how section 275 applications are being managed by the Crown.

36. During our initial discussions with COPFS about this inspection in 2020, we became aware that in addition to an absence of data on section 275 applications, COPFS was not able to easily identify cases in which section 275 applications had been made. We therefore requested that COPFS staff manually collect data on such cases between 1 January 2021 and 30 June 2021. We asked for the details of cases with section 275 applications at High Court, sheriff and jury, and summary levels. We are grateful to the COPFS staff who assisted in this task, though it should be noted that the manner in which the data was collated risks the data set being incomplete.^[28]

37. We selected our sample period in an effort to strike a balance between recent cases and those in which sufficient time had passed before we commenced our review that we could assess how they had been progressed. In particular, we were mindful of recent changes to COPFS policy on section 275 applications in response to the developing case law and we were keen to ensure the cases we reviewed reflected current practice, rather than processes or practice that had been rendered obsolete.

38. From the manual data collection exercise carried out on our behalf by COPFS staff, 127 High Court cases were identified which had section 275 applications made between 1 January 2021 and 30 June 2021. This included applications made by both the Crown and the defence. From two additional sources, we were able to identify a further 52 cases in which section 275 applications had been made during the relevant period.^[29] This gave a total of 179 cases in which section 275 applications had been made during our sample period. Each of the cases may have had one or more applications. It should be noted that this is significantly more than the 139 applications recorded by SCTS during the same period. We were not able to identify the exact reason for this variation, although it seems likely that differences in the methods of data collection will have played a role.

39. Also from the manual data collection exercise carried out on our behalf, six sheriff and jury and five summary cases in which section 275 applications had been made were identified (featuring 14 applications). This is fewer than the 20 applications recorded by SCTS.

40. To support our inspection, we sought to review cases in which section 275 applications had been made. 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^[30]
• 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 applications. We purposively sampled cases for review at Phase 2 taking into account a range of information gathered about each case at Phase 1^[31]
• Phase 3 – we reviewed all (11) of the sheriff and jury and summary cases in which section 275 applications had been made and about which we had been notified.

41. The results of our High Court case review are set out in detail at Appendix 1. The headline findings from the High Court cases are set out below. Given the small number of sheriff and jury and summary cases reviewed, their results are included in Chapter 6. We would like to highlight some caveats about the data:

• the initial population sample from which cases were selected may have been incomplete due to the manner in which it was collated (see paragraph 36)
• during our six-month sample period, there was a policy change in respect of applications relating to dockets^[32] (see paragraph 59). This likely resulted in an increase in Crown applications regarding dockets from 30 March 2021 (the midpoint of our sample period)
• as will be seen, 55% of High Court cases had more than one application. When we reviewed each case, we considered all the section 275 applications in the case, regardless of whether some had been made before or after our sample period. This was to ensure that we built up a full picture of how sexual history and character evidence in each case had been managed
• the sample period coincided with the growing court backlog associated with the Covid-19 pandemic. This meant that COPFS continued to manage cases for a longer period of time due to delays in cases reaching trial. This afforded an opportunity for the applications made in those cases to be revisited prior to the trial commencing. For example, applications that had previously been granted at a preliminary hearing could be revisited while the case awaited trial in light of developments in case law. On occasion, this led to applications being withdrawn or revised.

123 Cases

• 238 applications (almost 2 per case)
• 55% cases featured more than one application
• Rape was the main charge in 94% of cases

173 complainers

• 94% of complainers were women and girls
• 35% of complainers were children at the time of the offence or when the offending began
• 36% of complainers were the subject of more than one application

238 applications

• 100% Applications were made on behalf of 126 accused 100% of accused were male
• 38% of applications were made by the Crown
• 62% of applications were made by the defence
• 44% of cases featured applications made by the Crown and the defence
• 66% of applications were unopposed
• The crown opposed 47% of defence applications in full or in part
• The defence opposed 7% of Crown applications
• 78% of applications were granted in full or in part (85% of Crown applications; 74% of defence applications)
• 15% were refused (6% of Crown applications; 20% of defence applications)
• 7% were withdrawn (9% of Crown applications; 6% of defence applications)

Applications most often sought to lead evidence relating to the complainer’s behaviour at or around the time of the alleged offence, followed by the complainer’s general character and the complainer’s past sexual history with the accused

Applications seeking to lead evidence about the complainer’s behaviour with the accused at or around the time of the offence were most likely to be granted.

Applications seeking to lead evidence about the sexual history of the complainer with someone other than the accused were most likely to be refused.

42. During our inspection, we were not able to establish what proportion of High Court cases feature section 275 applications. No such data was available. However, we asked those we interviewed to estimate the proportion, based on their experience of managing cases daily – their estimates ranged from around half to three quarters of High Court sexual offence cases involve section 275 applications. However, some thought that the volume of defence applications was reducing in light of recent case law, while the number of Crown applications may be increasing as a result of changes in the Crown's approach (see paragraph 59).

43. Despite these caveats, we hope that the results of our case review go some way towards addressing the lack of data identified by Professor Cowan and towards informing further policy discussions around the use of sexual history and character evidence and the implementation of sections 274 and 275.

Record keeping

44. In any of our inspections, our ability to review cases is facilitated by inspectorate staff having direct access to COPFS systems, including its case management system which should contain all documentation pertaining to each case. For the purposes of our inspection, we required sight of key documents, notably the section 275 applications themselves as well as written records from the Crown and defence, Crown reports of preliminary hearings, the court's own minutes and records relating to engagement with the complainer about applications. All such information should be stored in the electronic case management system but was not.

45. We experienced considerable challenges in tracing key documents when carrying out both Phases 1 and 2 of our case review. This was most often because they had not been imported into the case management system. There were instances where key documents were found in the personal files of staff, inaccessible to others. Indeed, documents were missing in every case we reviewed and it was not common to find a case in which the section 275 application had already been imported. Where applications had been imported, it was sometimes difficult to know whether they were the draft or final versions. The 123 cases we reviewed at Phase 1 featured 238 applications but we were not able to trace five of those applications in the time available. These difficulties caused our inspection to be considerably delayed, although we appreciated the significant efforts that COPFS personnel made to assist us in tracing missing documents.

46. Record keeping issues hampered our ability to efficiently review cases but, more importantly, hampered the ability of COPFS personnel to manage their cases effectively and in full possession of all relevant information. For example, at the time of our case review, some key documents were stored in folders accessible only to advocate deputes but not case preparers. This meant case preparers were sometimes unsighted on developments in the case.

47. Critically, not all Crown or defence section 275 applications were stored on the primary case management system. Staff told us that, historically, there was a lack of clarity regarding who was responsible for importing key documents, including the applications. There were significant inconsistencies between cases regarding how and where documents were stored. There was also a lack of consistency on whether and where a note of key discussions and decisions made in respect of applications were recorded in the pathway document.^[33] While some said they recorded information about section 275 applications on the pathway, others did not. There was also uncertainty about whether a note of any discussions with the complainer about applications should be recorded in the pathway.

48. Almost all the staff we interviewed agreed that effective record keeping was a challenge. They cited difficulties with using the current case management system, noting that implementing naming conventions is challenging, documents are difficult to locate and the system itself occasionally fails to save documents or only grants access to a particular case file to one person at any given time. Because of the problems faced in using this system, various workarounds have been implemented, but these risk information in case files being incomplete, and some staff not being able to access information that is relevant to their role in a case.

49. COPFS is aware of the deficiencies of its case management system. It has previously sought to procure a new system but these efforts were brought to an end several years ago as a result of the loss of capital funding following the financial crisis. Currently, COPFS has plans to replace the current system by designing and implementing a next generation case management system using innovative digital technology to meet the delivery needs of a modern prosecution service. This new system is much needed. In the shorter term, COPFS should consider what it can do to manage the limitations of its current case management system and, in particular, ensure that staff are clear about their responsibilities in relation to record keeping.

50. Some of the issues that we encountered in relation to record keeping should be addressed by responsibility for the lodging and intimating of section 275 applications recently having been allocated to a Lodging and Indicting Team. As well as lodging applications, this team has been asked to import both Crown and defence applications into the case management system. While this is a welcome development, further work still requires to be done to ensure that other key documentation, such as records of engagement with the complainer about section 275 applications and court minutes, are imported into case files. Case preparers and solemn legal managers should also be able to access all documentation about their cases.

51. A further benefit of the Lodging and Indicting Team's involvement in section 275 applications is that they have recently been asked to record key data about section 275 applications. This includes recording who made the application, the dates the application was lodged and served on the accused, and the outcome of the application. This creates potential for some basic data to be gathered and analysed for trends.

Recommendation 1

COPFS should clearly set out its expectations of staff regarding record keeping, and remind them that key decisions about a case should be recorded and that key documentation relating to a case should be imported into the relevant case file.