Criminal law: The future of sexual offence trials

In March 2021, the Lord Justice Clerk’s Review Group published its report on Improving the Management of Sexual Offence Cases. This cross-justice, comprehensive review was set up to consider how to improve dealing with serious sexual offence cases within the Scottish criminal justice system.

Background to the review

The volume of sex offence cases has substantially increased, now constituting 75% of the COPFS High Court workload, a trend expected to continue. The review’s aim was: “to improve the experience of complainers by considering if the trial process should be modified or modernised”.

The proposals took a broad approach, focusing on court and judicial structures, procedure and practice. Crucial to making any changes was the need to respect the rule of law and not to compromise the rights of the accused in terms of article 6 of the European Convention on Human Rights.

Systemic practical and legislative changes have already been made to allow evidence to be taken on commission and/or involve the use of special measures. On their own, such practices have not been enough. Importantly, complainers should not suffer increased trauma by the inevitable repetition of their experience in the somewhat stressful adversarial criminal justice system.

At the same time the courts cannot cope with the significant increase in case numbers. The review concluded that the way in which sexual offences are progressed could be improved.

What to improve

Criticisms of sexual offence cases tend to command newspaper headlines. It is important that there is a measured and reflective response on what can and should change to improve the criminal justice system. Inevitably that focuses mainly on the criminal legal profession.

Publicity when the review was published emphasised the jury question in discussing possible alternative methods, reflecting partly on comparative justice systems. The review group were, not surprisingly, divided on any conclusion. In contrast, the Law Society of Scotland’s position remains clear in opposing any proposed introduction of judge only trials for sexual offences or otherwise. Consideration of the jury research work led by Professor James Chalmers and others, and the continued debate on the not proven verdict, will no doubt continue before any fundamental changes can be made. Rather than that being the focus of this article, recommendations were made where there could be earlier and successful changes.

Delay: The court backlog has of course increased due to the COVID pandemic. Additional courts are being brought in from September. Business being processed in the High Court, according to Scottish Courts & Tribunals Service, is 12% above pre-COVID rates. While this is welcomed, it is recognised that 2020-21 has been frustrating and stressful for all involved within the criminal justice system, be it complainers or accused, some of whom have been on long periods of remand. All have been waiting for that uncertain date when their trial starts.

Communication: Several review strands could broadly be grouped as communication where enhanced provision of information and advice would help to inform complainers about what to expect from the system and to manage their expectations. That process must not depend on postcode lotteries. Clarity is needed from their first engagement with the justice system, continuing through to trial and post-court. The suggestion as to independent legal representation (ILR) has a definite positive role.

Creating publicly funded ILR would help support and inform the complainer. There are increasing numbers of applications being made under s 275 of the Criminal Procedure (Scotland) Act 1995, reflected in the plethora of reported appeal cases. These applications, if granted, allow for intimate and sensitive questioning as to the complainer’s private life and may affect their rights under article 8 of the European Convention. Ensuring that complainers are supported and understand the nature of such applications, and advocating for their interests, needs to be balanced with the right to a fair trial and for the accused to challenge the evidence. Equality of arms must be ensured in achieving justice for all concerned.

A specialist court?

The review suggests that consideration is given to establishing a specialist court to try sexual offences. This would involve the pre-recording of the complainer’s evidence and adopting what is described as trauma-informed practices and procedure. Exactly when that aspiration, if agreed, could be achieved is uncertain. There are implications for the scope of such a court, the prosecution of other serious non-sexual offences, and the identification and qualifications of those permitted to appear in such courts.

The review correctly recognises the role of training, including specific training for all legal practitioners, defence and Crown, and the judiciary. As cases become more complex, complete with evidential challenges, reviewing, identifying and consolidating the skills required – including oral, academic and written – appears timely.

What the prosecution of sexual offences will look like in 2026, when the current Parliament concludes, is unknown. The review will promote deeper discussion that should include the legal profession, which itself should not stand still in being able to respond to changes being brought forward. Public opinion may not allow the status quo to remain.