Allowing sexual questioning

It may be worth having a look now at the progress of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. This is the one which provides for a lot of restrictions on questioning in certain cases of a sexual nature and then goes on to deal with applications for relaxation of these restrictions. (It is also the Act which provides that an accused in such cases may not conduct his defence in person, with the court if necessary appointing a lawyer, but that need not detain us here.)

The restrictions referred to are imposed by section 274 and the question of relaxation in the following section. Anecdotally, it would appear that more applications for relaxation are being sought than may be strictly necessary. It is not surprising that this should be the case as defenders will want to err on the side of caution. This is probably just as well, since the last thing that one would want at the trial would be an argument about whether a particular question was one about which prior application should have been made. There are three reported cases to which the practitioner might like to refer. But before coming to them it might be worth mentioning that there is also an unreported (at the moment) decision, HMA v John Blyth, by Lord Brodie in March 2003, which has been found to be of assistance.

Cumming v HMA 2003 SCCR 261 is an appeal from a preliminary diet. The judge of first instance had allowed some exceptions and refused others, but as the Crown did not oppose the appeal the value of the case as precedent is perhaps limited. In Kinnin v HMA 2003 SCCR 295 an appeal from the sheriff was again not opposed by the Crown and so was granted without much discussion. This state of affairs, which some commentators have, tentatively, seen as the Crown hardly fighting tooth and nail for its witnesses and the court taking its lead from the attitude of the parties rather than by independent assessment, may mean that there will be less restriction than had been anticipated. I should emphasise that here I am referring not just to the two cases discussed but to what seems to be the practice in cases that never reach appeal, that is to say those in which an application is made, the prosecution does not oppose it and the judge of first instance, taking the view that what is required is an adjudication on the parties’ submissions rather than an independent assessment, allows the application. I have also heard it suggested that the effect of this may be that the legislature will be uneasy if it comes to believe that the Act, which is intended to protect victims, who of course have no independent voice as to which questions they should answer, is in effect not so doing because of the actings of the prosecutors and the courts.

Reference should also be had to the case of Tant v HMA 2003 GWD 24- 686. This appeal against conviction involved certain considerations which we need not look at here but it also involved a successful submission that the trial judge had wrongly refused an application for permission to ask the complainer whether she accepted that she had had consensual sexual intercourse with the accused some months previously. The judge of first instance took the view that to allow the application would be to allow the defence to go into matters which the new legislation specifically excluded. The appeal court, however, took the view that such questioning was material to the accused’s defence. Accordingly, it would seem that although the Act seems to set out a list of checks and balances which, if properly observed, will inevitably lead to a correct solution, that is far from being the case. In particular, it is thought that continuing difficulty will be encountered in applying section 275(1)(c), which requires the court to be satisfied that “the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited”. I seem to recall that there is an interesting discussion in Harry Street’s “The Politics of the Judiciary” about whether the court should interpret new laws broadly, on the assumption that they are intended to have an effect, or narrowly, on the basis that the liberty of the subject should not be restricted any more than is necessary to comply with the letter of the (new) law. As Lord Hailsham remarked in the case of de Rosa v Lord Advocate, in which I had the honour to participate, Parliament must be given credit for meaning what it says. To the best of my recollection he was chuckling at the time. I am afraid that we have not heard the last of this one.

Finally, a couple of cases which are unreported as at the time of writing but were decided by the appeal court on 13 November 2003. Both deal with the same point, namely whether evidence led under section 259 of the 1995 Act, that is to say hearsay evidence of a non-available witness, is compatible with those rights established by ECHR art 6(3)(d) or of itself unfair. The cases are Campbell v HMA and Hull v HMA. The court, in the course of its judgment, pointed out that while regard has to be paid to European jurisprudence, it must be borne in mind that in many cases the procedural and evidential rules were rather different to those prevailing here and in particular certain consequences flow from Scots law’s requirements about corroboration. The rule that an accused must have the opportunity of examining witnesses is not an absolute one, so that it will not follow in every case that where hearsay has been a necessary ingredient of the Crown’s corroborated proof there has been a violation of the rights under 6(3)(d). The outcome was not the same in both cases and careful reading is recommended as together they form the last word, for the present anyway, on this somewhat tricky point.