Opinion: Laura Hutchison and Sharon Cowan

As we face faster and deeper change in our society, equality and human rights laws and standards are more important than ever. As Britain’s equality regulator, the Equality & Human Rights Commission (EHRC) is working to create a more equal and rights-respecting society.

The EHRC current strategic plan prioritises work to expose and challenge barriers to justice for women and girls who have survived gender-based violence.

In trials involving sexual crimes, complainers are protected in law from evidence about their sexual history, bad character and private information (such as medical history) being used, when it is not sufficiently connected to the facts of the case. The law (found in ss 274 and 275 of the Criminal Procedure (Scotland) Act 1995) has been held to be compatible with the European Convention on Human Rights, as it properly balances the rights of the accused and the complainer.

However, despite recent efforts by government and criminal justice agencies to increase public confidence in reporting sexual crimes, conviction rates remain low. In particular, the most recent statistics show that conviction rates for rape and attempted rape cases are 40% lower than for all other crimes.

Organisations representing survivors of gender-based violence have raised concerns about the inappropriate and irrelevant use of sexual history and bad character evidence in sexual offences trials, and the impact this can have on survivors, as well as the potential impact on reporting and conviction rates.

To understand more about these issues, the EHRC commissioned Professor Cowan (co-author of this article) to review the publicly available literature and cases on the use of this kind of evidence.

The review found evidence of a potential “justice gap” in relation to the protection of the dignity and privacy of the complainer and identified serious concerns about how effective the legal protections are in practice.

There has been no in-depth review of practice in this area since research, published in 2007, found that only 7% of applications to use sexual history or character evidence were challenged by the Crown. Figures released in 2016 by the Cabinet Secretary for Justice showed that over a three month period only 10% of applications were opposed.

In several recent appeal court cases, the High Court highlighted serious concerns about the use of sexual history and bad character evidence and the treatment of complainers during rape and sexual offence trials. These included concerns about prosecutors failing to properly contest applications to introduce this kind of evidence before trials, and the failure of prosecutors and judges to challenge inadmissible references to sexual history and bad character during trials.

Because sexual offences are estimated to make up 75% of High Court cases, these recent appeals represent only a small fraction of trials in this area. But it is important to acknowledge that these concerns about the way sexual history is dealt with during trials would not have come to light had there not been reported appeal court decisions. Overall, it is fair to say that there is a lack of publicly available information about how the law is being applied in practice, and that we need more research to understand fully how widespread the problems identified by the High Court really are.

Given these findings, the EHRC is calling for:

• an independent evaluation of how the Crown Office & Procurator Fiscal Service (COPFS) responds to defence applications to use complainers’ sexual history and private information, and how it communicates with complainers about such applications. We have also asked that this evaluation looks at how COPFS complies with its equality duties when considering applications to introduce this kind of evidence;
• more systematic collection of information about the number and content of applications for the use of sexual history and other private information (such as medical and phone records);
• a programme of research into what is happening in court;
• consideration of the benefits of introducing state-funded independent legal representation in hearings about whether to allow sexual history and other private information; and
• clearer rules about the recovery and disclosure of sensitive private information.

This level of transparency and scrutiny will help to ensure there is a clear and fair process for both the complainer and the accused in the prosecution of sexual crimes, and increase public confidence in the criminal justice system.

The EHRC has published a series of research reports based on Professor Cowan’s review on its website and the full review is available on request.