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

4 Processes for managing section 275 applications

78. During our inspection, we considered whether there are appropriate processes in place for managing section 275 applications and the extent to which those processes are being followed. We considered both how the Crown makes and responds to applications.

Making Crown applications

79. In Scotland, the statutory provisions regulating the use of evidence relating to the complainer's sexual history or character apply equally to the Crown as to the defence. This is unlike the situation in, for example, England and Wales, where the equivalent statutory restrictions apply only to the defence. Thus, if the Crown in Scotland wishes to lead or elicit evidence relating to the complainer's sexual history or character that is prohibited by section 274, it must make a section 275 application.

80. In Phase 1 of our case review, we reviewed 123 cases in which section 275 applications had been made. These 123 cases featured 238 applications. We were not able to trace and review five applications. Of the remaining 233 applications, 89 (38%) were made by the Crown. In Phase 2 of our case review, we reviewed 15 cases in more detail. These cases featured 37 applications. Twelve (32%) of these were Crown applications.

Identification and drafting of Crown applications

81. During our inspection, we heard that a variety of people in different roles and at different stages in the preparation of the case may identify the need for a section 275 application. This includes:

• the prosecutor who initially marks the case
• the solemn legal manager (SLM) who drafts the investigative agreement,^[50] allocates the case to a case preparer and reviews the work of the case preparer
• the case preparer who investigates and prepares the case for prosecution
• the indicter who quality assures the case and finalises the indictment
• the advocate depute who conducts the preliminary hearing
• the advocate depute who conducts the trial.

82. Because a range of people involved in the case may identify the need for a section 275 application, some uncertainty has arisen as to where the responsibility primarily lies. Ideally, the need for a Crown section 275 application would be identified as early in the preparation of the case as possible. Indeed, COPFS guidance states that, 'it is important the Crown addresses the need to make an application under section 275 at an early stage'.^[51] In relation to who should draft applications, the guidance goes on to state that, 'Applications must be drafted by the case preparer under the supervision of the SLM during the case preparation process, for consideration by the indicter'.^[52]

83. While the need for Crown section 275 applications should be identified as early in the preparation of a case as possible, we heard that too often this happened in the latter stages of the case. During our interviews, we heard that many cases were reported for Crown Counsel's instructions either without consideration having been given to the need for a section 275 application or, where the need had been identified, without a draft application. We also heard that, rather than reviewing already drafted applications, indicters and even advocate deputes were drafting applications themselves.

84. We note that in some cases, the need for an application may only become apparent at a later stage – for example, once forensic evidence becomes available. We also note that identifying whether a section 275 application is necessary may not always be easy – this can be a challenging and complex area of the law where views may vary. Nonetheless, there was a perception among those we interviewed that identifying the need for and drafting applications could in the majority of cases be done at an earlier stage, in line with current guidance.

85. There was also a perception, however, that this may be beginning to change – some of those we interviewed said there was an increasing awareness among case preparers and SLMs of the need for section 275 applications, reflected in a rising number of draft applications being submitted for consideration at the reporting stage.

86. Two additional developments within COPFS should assist in a shift to the earlier identification and drafting of section 275 applications:

• the High Court pathway document has recently been amended to include questions on whether there are any facts or circumstances which could give rise to either a Crown or a defence section 275 application. This is a useful prompt which should assist the early identification of the need for a Crown application.
• minimum standards for the preparation of High Court cases are being developed. These standards will make clear what needs to be done and who is responsible for each task. When a case is reported for Crown Counsel's instructions, the standards will require SLMs to confirm whether the need for a Crown section 275 application has been considered.

87. One potential barrier to the earlier identification and drafting of section 275 applications by case preparers is their level of expertise and confidence. As already noted, the law around sexual history and character evidence can be complex and nuanced, and has proved challenging even for members of the judiciary, experienced prosecutors and defence counsel, as recent case law has shown. Some case preparers we spoke to said they felt 'out of their depth' drafting section 275 applications and felt this was a role for legally qualified staff (while some case preparers are legally qualified, many are not). Others felt that non-legally qualified case preparers were equally as capable of drafting applications and were best placed to do so given their in-depth knowledge of the case.

88. In Phase 2 of our case review, the 15 cases featured 12 Crown applications. The identity of the person who drafted two of the applications was unknown. Of the remaining 10:

• seven were drafted by case preparers, four of which were drafted by non-legally qualified case preparers
• three were drafted by advocate deputes.

89. We consider that case preparers should be able to identify the need for applications and be able to draft them. However, this is contingent on them being trained in the identification and drafting of applications and having sufficient support and supervision from SLMs. The extent of the training and support required will vary according to the skills and experience of individual case preparers. The complexity of the application to be drafted may also dictate the level of input they require from SLMs. Case preparers (and SLMs) would also benefit from feedback on their draft applications – we heard that sometimes they may not be aware if their applications are later revised by indicters or advocate deputes or whether their applications are granted or refused by the court. This information would provide a useful learning opportunity.

90. Overall, while there has been some confusion as to where responsibility for the identification and drafting of Crown section 275 applications primarily lies, there are indications that this is becoming increasingly clear and that case preparers and SLMs are becoming more proactive, with indicters being able to revert to their revising role. Recent developments should further cement this shift to earlier identification and drafting. Inevitably there will be a small number of cases where new information or developments necessitate the drafting of a section 275 application in the latter stages of case preparation. In these cases, indicters and advocate deputes act as a safeguard to ensure that applications are made where necessary.

Quality of Crown applications

91. A recurring theme in our interviews with COPFS personnel was that the drafting of section 275 applications is challenging and can be time-intensive. Some personnel had benefited from recent training which helpfully described four situations which typically arise and in which the Crown should consider making a section 275 application. These were:

• where the complainer is named in a docket and the Crown wishes to lead evidence of sexual matters contained in the docket
• where the Crown wishes to lead evidence that the complainer engaged in sexual behaviour immediately prior to or during the incident which does not form part of the subject matter of the charge (such as consensual kissing and touching immediately prior to the non-consensual sexual activity alleged in the charge)
• where the Crown wishes to lead evidence that the complainer and the accused were in a relationship
• where the Crown wishes to lead the accused's police interview and it contains evidence which is prohibited by section 274.

92. While frequently arising, these four situations are not an exhaustive list of when the Crown may require to make a section 275 application. There are other situations where case preparers and SLMs will require to rely on their experience, training and knowledge of the law on sexual history and character evidence to determine whether an application may be necessary.

93. Many of the COPFS personnel we interviewed spoke of the difficulties they faced in drafting applications. Many said they found it difficult to determine whether the evidence the Crown sought to lead was admissible at common law. They often thought it would be helpful to lead evidence that would provide a jury with the context of the incident including, for example, how the complainer and the accused came to be together at the locus at the time of the charge. However, recent case law has indicated that 'context' is not required.^[53] Many of those we interviewed also found it difficult to determine whether evidence the Crown wishes to lead falls within the restrictions contained in section 274.

94. An approach that may assist with the quality of applications is to draft an application per complainer rather than applications featuring multiple complainers. While we saw only a few examples of the latter, we noted single complainer applications tended to be clearer and more likely to address all parts of section 275(3) in a manner sufficient to satisfy the court.

95. In Phase 1 of our case review, we found that the Crown was more likely to make targeted applications relating to only one category of evidence (74% of its 89 applications) than to make complex applications relating to multiple categories of evidence (26% of its applications). In contrast, 58% of the defence applications related to more than one category of evidence. In relation to the Crown applications, however, it may be possible that those we reviewed contained a higher proportion than normal of docket applications due to a change of policy during our sample period. By their nature, docket applications are more likely to be focused, seeking to lead evidence about a specific incident.

96. In Phase 2 of our case review, we sought to assess the quality of Crown section 275 applications with reference to:

a) whether the application complied with section 275(3)

b) whether the evidence sought to be admitted or elicited was relevant at common law

c) if admissible at common law, whether the evidence was prohibited by section 274

d) if prohibited under section 274, whether the evidence met the tests for admission under section 275(1)(a) (that is, the evidence related only to a specific occurrence or occurrences) and section 275(1)(b) (that occurrence or those occurrences were relevant to establishing guilt)

e) whether the probative value of the evidence was significant and likely to outweigh any risk of prejudice to the proper administration of justice, including the protection of the complainer's dignity and privacy (section 275(1)(c)).

97. It is worth noting that our assessment was based on the application itself. A court making its own assessment of the application would benefit from the application itself as well as oral submissions by the parties. Of the applications we assessed, all had been lodged but not all had been determined by a court (for example, some were ultimately withdrawn).

a) Compliance with section 275(3)

98. Section 275(3) requires that all applications be in writing and shall set out:

• the evidence sought to be admitted or elicited
• the nature of any questioning proposed
• the issues at the trial to which that 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 that evidence.

99. Of the 12 Crown applications we reviewed in Phase 2, 11 fully complied with the requirements of section 275(3). Only one application did not address all of the requirements. The application, concerning the complainer's use of cannabis, was lacking in detail and did not explain the issues at trial to which the evidence was considered to be relevant. The application was ultimately withdrawn by the Crown at the fourth preliminary hearing in the case.

b) Relevance at common law

100. Recent case law has reiterated that the evidence sought to be admitted or elicited in a section 275 application must be admissible as relevant at common law.^[54] Of the 12 Crown applications we reviewed, we considered:

• the evidence in 10 applications to have been admissible at common law
• the evidence in one to have been partly admissible ^[55]
• the evidence in one to have been inadmissible at common law. This was the same application noted at paragraph 99 that did not meet all the requirements of section 275(3). This application, concerning the complainer's use of cannabis, did not sufficiently explain why the evidence the Crown sought to admit was relevant.

c) Prohibited by section 274

101. Section 274 creates a general rule that evidence or questioning falling within certain categories is not admissible in sexual offence cases. If the Crown wishes to lead evidence falling within those categories, it must make a section 275 application. If the evidence the Crown wishes to lead does not fall within those categories, no application is required. Of the 12 Crown applications we reviewed, two applications sought to elicit or admit some evidence which we did not consider to have been prohibited by section 274.^[56] During our interviews, staff told us that views can vary on whether an application is necessary or not. Where there is uncertainty, they said they tend to be over-cautious and make an application.

d) Specificity and relevance under sections 275(1)(a) and s275(1)(b)

102. Of the 12 Crown applications we reviewed, 11 sought to admit or elicit evidence that related to a specific occurrence or occurrences. Again, it was the application which sought to admit evidence relating to the complainer's use of cannabis that we considered did not have sufficient specificity to comply with section 275(1)(a). The application had sought to lead evidence that the complainer smoked cannabis over a significant period of time, unrelated to the charges in the case. When considering the statutory test of relevance regarding the evidence in the Crown applications, the same issues arose as are highlighted at paragraph 100 in relation to the common law test of relevance.

e) Significant probative value

103. We considered that 11 of the 12 Crown applications sought to admit or elicit evidence which had significant probative value and which was likely to outweigh any risk of prejudice to the proper administration of justice. We considered that only one application was not of significant probative value. Again, it was the application relating to the complainer's use of cannabis which did not appear to have significant probative value.

104. Our case review shows that the quality of Crown applications is generally good and those we interviewed suggested the quality is improving. This view was echoed by the senior staff and stakeholders we interviewed who felt that the Crown applications were generally of a high standard and were continually improving. There was a general sense that most Crown applications are focused, and do not seek to lead any more evidence about sexual history or character than is strictly necessary. This is likely to be a result of the renewed focus on section 275 applications following recent case law and the Crown's subsequent response, including changes to policy and guidance and the introduction of training specifically on section 275 applications.

105. In support of this conclusion, it is worth noting that 85% of Crown applications we reviewed at Phase 1 were granted either in full or in part (where the result was known). Only 6% were refused while 9% were withdrawn. Given the small number (five) of Crown applications that were refused, it is difficult to identify any broader themes or learning points. Nonetheless, it is worth noting that three Crown applications were refused because they were deemed unnecessary (that is, the evidence sought to be admitted or elicited was not prohibited by section 274), one was deemed irrelevant and one was refused because it was late.

106. The defence fully or partly opposed 7% of Crown applications. The low rate of opposition suggests that the defence considers Crown applications are generally appropriate or at least not worth opposing. It is worth noting that many Crown applications are considered non-controversial or straightforward compared to those made by the defence – around a third of Crown applications related to dockets for example (100% of which were granted), while others sought to lead evidence of the accused's police interview or the complainer's behaviour at the time of the incident.

107. We were pleased to note in our case review that in respect of ongoing cases, there was evidence that the Crown reviewed its own applications (or asked the court to review previously granted defence applications) 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.

Lodging and intimating section 275 applications

108. Section 275 applications made by the Crown require to be lodged with the court and intimated to the defence. The 1995 Act requires that section 275 applications in High Court cases should be lodged no later than seven clear days prior to the preliminary hearing. This has been interpreted as meaning the first preliminary hearing.^[57] Late applications will only be considered where special cause is shown.^[58]

109. In the cases we reviewed, it was not always possible to identify the exact date when Crown applications were lodged with the court or intimated to the defence. However, more recently, COPFS has instituted a welcome new process for lodging and intimating section 275 applications. Responsibility for this process now lies with the Indictment and Lodging Team in the Crown's High Court Division. The process includes recording the date applications are lodged and intimated to the defence, as well as notifying all those involved in the case that the application has been lodged.

110. Section 275 applications could be lodged as early as when the indictment is served. While this happens on occasion, we heard that it was infrequent and that applications are generally lodged closer to the statutory deadline (or later). Lodging may be delayed in cases where the need for an application is only identified at a later stage in case preparation, or where an application is particularly complex and requires significant input from indicters or advocate deputes. Data only available since the introduction of the new lodging and intimation process noted above suggests that Crown applications are lodged at various points between the day of the service of the indictment and the day of the preliminary hearing itself.

111. Section 275 applications should be lodged and intimated to the defence as early as possible. The goal should be to, wherever possible, lodge and intimate the application at the same time the indictment is served. This allows the defence sufficient time to review and consider the application, and allows the Crown additional time to fulfil its duty to engage the complainer regarding the application's contents.

112. An effective process, achievable in many cases, would be for the case preparer to draft the application under the supervision of the SLM, the SLM countersigns the application, the marking advocate depute reviews and instructs the application, the indicter revises the application if necessary, and the application is lodged and intimated to the defence when the indictment is served.

Recommendation 4

COPFS should instruct staff that, wherever possible, section 275 applications should be lodged with the court and intimated to the defence at the same time as the indictment is served.

Late lodging of section 275 applications

113. Nine of the 12 Crown applications we reviewed in Phase 2 of our case review were lodged late (that is, less than seven clear days before the preliminary hearing). Five of the late applications related to a change in COPFS policy on 30 March 2021,^[59] midway through the period from which we sampled cases to review. This policy instructed staff to make a section 275 application to cover sexual matters contained in a docket in all cases where a complainer features in both a charge and a docket. The policy change caused COPFS to revisit ongoing cases to check whether an application should now be made, resulting in five late applications.

114. In relation to the remaining four Crown applications which were late:

• one was late as a result of an administrative error regarding the lodging of the application
• one was late because it was a revised Crown application, lodged after the initial application had been debated and withdrawn at the first preliminary hearing
• no reason was recorded for the lateness of two applications.

115. During our interviews, we heard that late Crown applications can arise when those involved in the preparation of the case have considered that there is no need for an application, but the advocate depute conducting the preliminary hearing takes a different view. However, in those circumstances, there is no guarantee that the court will allow the late application to be admitted as it may determine that special cause in terms of section 275B(1) has not been met.^[60]

116. Excluding those applications which were lodged late as a result of the policy change, all of the Crown's late applications were lodged at either the first or second preliminary hearing.

Disclosure of the complainer's precognition

117. The Crown has a duty to engage the complainer to establish her views on the contents of a section 275 application.^[61] The complainer's views are established during an interview known as a precognition. Where the complainer provides new information during the precognition, the Crown may be under a duty to disclose it to the defence (for example, if the new information is material exculpatory evidence).

118. During our interviews with COPFS personnel, we heard that practice varied with regard to disclosure of precognitions about section 275 applications. Often, the full content of the complainer's precognition was disclosed, irrespective of whether the complainer had provided new material information. Sometimes, only new material information was disclosed. There was also variation as to who instructed or carried out disclosure to the defence. While some case preparers proactively carried out disclosure, others awaited instructions from an advocate depute. Occasionally, advocate deputes undertook disclosure themselves which we heard risks the disclosure not being carried out via the secure disclosure website.

119. While there is extensive guidance available on disclosure generally, it appears COPFS personnel would benefit from greater clarity on what should be disclosed and who should instruct and carry out disclosure specifically in relation to section 275 applications.

Responding to defence applications

120. In Phase 1 of our case review, 62% of the 233 applications we reviewed were made by the defence. The defence were more likely to submit complex applications covering multiple types of evidence. Defence applications were more likely to be refused than those made by the Crown (20% compared to 6%). Among those we interviewed, including defence counsel, there was a perception that the volume of defence applications is reducing as a result of recent case law and what is seen as a more strict application of sections 274 and 275 by the courts. Defence counsel felt applications were now more likely to be refused, and so they were less likely to make them.

121. Nonetheless, of the defence applications we reviewed more closely at Phase 2, we still saw examples of applications that were unlikely to be successful. For example, we considered that eight of the 25 (32%) defence applications attempted to admit or elicit evidence that was not admissible under common law. These included evidence relating to the complainer's behaviour with the accused at various points after the incident, and the complainer's mental health or drug and alcohol use (these applications were either refused by the court or withdrawn).

122. It is not our role to assess the quality of defence applications, but their contents are relevant to our assessment of how they are managed by the Crown. For example, we would expect applications that seek to admit evidence that is not relevant to be opposed. It is also worth noting that the Crown has a duty to engage the complainer about such applications, even if it anticipates they will be refused by the court. In Phase 2 of our case review, there were eight defence applications which sought to lead evidence we considered not to be relevant at common law. Where the Crown's attitude towards the applications was known (five applications), it was reassuring that the Crown fully opposed the applications.

Intimation of defence applications to the Crown

123. In Phase 2 of our case review, we found that nine (36%) of the 25 defence applications were lodged late. Of the applications that were lodged timeously it was difficult to identify the date of lodging as this information was not routinely recorded. There was however a perception among COPFS personnel that most defence applications were lodged very shortly before the deadline of seven clear days before the preliminary hearing, if not late. The court requires both the Crown and defence to complete a written record regarding their state of preparation and to submit this to the court not less than two days before the preliminary hearing. The written record must record the views of the complainer regarding any section 275 application.

124. It is therefore clear that the Crown often has a very limited timeframe in which it must review a defence section 275 application, consider its attitude towards it and precognosce the complainer on its contents. It is critical that any defence application intimated to the Crown is sent to the case preparer without delay.

125. We heard that defence section 275 applications are intimated to the Crown via several routes. Defence counsel we interviewed did not recall receiving any instruction on how section 275 applications should be intimated to the Crown, hence the variation in approach. In the majority of cases, defence counsel email applications to the advocate depute conducting the preliminary hearing and the Crown's High Court Division. On receipt, the advocate depute forwards the application to the relevant case preparer and requests they ascertain the complainer's position on the application. The effectiveness of this approach relies on the advocate depute being able to react immediately on receipt of the defence application, thereby maximising the amount of time the case preparer has to contact and precognosce the complainer. Less frequently, defence counsel may deliver or post a section 275 application to either the High Court Division or the local COPFS office relative to where the offence took place. COPFS administrators should upload the application into the electronic case file and forward it to those involved in the case. Again, the effectiveness of this process relies on those who initially receive the application taking immediate action and forwarding it to the most appropriate person.

126. There is scope for the processing of defence applications to be more robust. Where applications are sent to advocate deputes in the first instance, the advocate depute may not always be in a position to deal with it promptly due to being engaged in a trial or in other matters. Where applications are sent to COPFS mailboxes, the correct mailbox may not be used causing delays. Similarly, hard copy applications received at local offices may not be processed immediately. While these delays may not be substantial, they may have a significant impact given the usually very limited timescales in which the case preparers must contact and precognosce complainers.

127. To maximise the time the Crown has to act upon defence applications, and to minimise the risk that defence applications are not actioned immediately upon receipt, the Crown should identify the most appropriate mechanism for receiving and actioning defence applications. It should communicate this process to defence counsel and encourage them to use it.

Recommendation 5

COPFS should identify the most efficient process for receiving and actioning section 275 applications intimated by the defence. It should communicate this process to defence counsel and encourage them to use it.

Liaison between the Crown and the defence

128. We found there to be very little, if any, communication about section 275 applications between the Crown and the defence prior to cases being indicted. Once applications are lodged, however, we heard that advocate deputes and defence counsel will discuss them. Most often, this will be to ascertain the other party's attitude towards the applications and whether they are likely to be opposed. There appear to be discussions about applications while they are being drafted only rarely.

Crown opposition to defence applications

129. Recently there has been some criticism of the Crown's failure to oppose defence applications when appropriate.^[62] We therefore sought to identify the Crown's attitude towards section 275 applications during our case review. Of the defence applications we reviewed at Phase 1, the Crown opposed 47% either in full or in part. There was only one defence application which was unopposed by the Crown and which the court refused. It was refused on the basis that it did not engage section 274 and therefore was not necessary.

130. Generally, the Crown opposed more applications, or more parts of applications, than were refused by the court. Where the Crown did not oppose a defence application, this was almost always supported by the court. This could suggest that the Crown's opposition or lack thereof is generally appropriate. It could also suggest that the Crown's stance influences the court's decision making, although those we interviewed felt very strongly that the Crown's stance was not determinative and that the obligation to assess the admissibility of evidence lies clearly with the court.^[63]

131. The fact the Crown opposes some applications in a case but not others, or some parts of an application but not others, suggests it is taking a nuanced approach and is carefully considering the merits of each application or each piece of evidence sought to be admitted by the defence.

132. There may be scope for the Crown to oppose more late applications by the defence on the basis that the applications are lodged outwith the requisite timeframe and that special cause has not been shown. In Phase 2 of our review, nine defence applications were lodged late. The Crown's position is only known in relation to five of these applications – none of the five were opposed.

133. During our interviews, we heard anecdotal evidence that the Crown is now more inclined to oppose defence applications in light of recent case law and supported by OI 13/20 which encourages Crown opposition to deficient defence applications.

'Mirror' applications

134. It is worth noting that on some occasions when either a defence application was refused or a Crown application was withdrawn, this was done on the basis that the other party had made its own application in much the same terms and it was therefore considered that a second application regarding the same evidence was not necessary. This appears to reflect a misunderstanding of the law and the court's (usual) application of it. The court has made clear that where the Crown and the defence wish to admit or elicit the same evidence (sometimes referred to as mirror or same fact applications) separate applications are required. This is because the reasons for wishing to lead the evidence and the inferences to be drawn will be different for each party and these require to be addressed under section 275(3) before the court will reach a decision.^[64]

135. Mirror applications may also arise where a defence application is granted and the Crown subsequently lodges a late application to admit or elicit the same evidence as that already covered by the defence application. The Crown may wish to lead the evidence itself, rather than having the evidence come out during cross-examination of the complainer. The Crown will require to demonstrate that these circumstances amount to special cause.

Appeals

136. Either party may appeal the decision of the court in respect of a section 275 application. COPFS policy states that, 'Where an application is granted, in whole or in part, in the face of Crown opposition, leave to appeal should be sought immediately'.^[65] This approach appears to leave advocate deputes with no discretion as to whether leave to appeal should be sought and does not appear to be followed in practice.

137. The advocate deputes we interviewed, as well as others who had a view on this issue, felt that the Crown should not be required to appeal every decision by the court to grant a defence application in the face of Crown opposition. They felt advocate deputes should have more discretion to decide whether to seek leave to appeal. They might not seek leave to appeal where, for example, the decision to oppose an application had not been clear cut, or where the advocate depute agrees with the court's reasoning for granting applications following debate.

138. COPFS may wish to review its guidance on appealing decisions to grant applications in the face of Crown opposition to ensure it is fit for purpose and is followed in practice.

Trials

139. In March 2019, the Crown issued OI 2/19 in relation to the protection of witnesses from unfair and oppressive questioning. It reminds prosecutors of their responsibility to object to questioning of complainers where it strays beyond proper bounds.

140. We did not observe how the Crown managed section 275 applications at trial as part of our inspection. This is because it would have been particularly resource-intensive and would not have been proportionate, particularly taking into account the concurrent research being carried out by Professor Cowan on sexual history and character evidence which does involve trial observations.

141. Anecdotally however, we heard during our interviews with COPFS personnel and stakeholders that there is an increasing awareness among advocate deputes that they require to be continually alert to the leading of evidence that may engage section 274. They said trials are now being conducted in a manner which is more mindful of whether section 275 applications have been granted or refused, of whether any restrictions have been imposed on how evidence is elicited, and of the admissibility of evidence relating to the sexual history and character of complainers more generally. However, there were also suggestions, including from a member of the judiciary, that there remained scope for further improvement.

Previous convictions

142. Where a defence section 275 application is granted by the court, section 275A requires the Crown to place before the judge a list of the accused's relevant previous convictions.^[66] The judge has discretion as to whether relevant previous convictions are laid before the jury.^[67]

143. We asked those we interviewed whether the Crown routinely alerts the judge to the accused's relevant previous convictions. We heard that there is very rarely a need to do so – section 275 applications are unlikely to be made on behalf of an accused who has relevant previous convictions. Indeed, we identified no such cases among the cases we reviewed in depth at Phase 2. In Phase 1, we noted three applications (all in the same case) which were withdrawn after the Crown indicated that it would place the accused's previous convictions before the judge.