Inspectors seek better handling of sexual history cases
Advances have been made in how the prosecution service manages sexual history and character evidence in trials, but there remains scope for further improvement, according to a new report from the Inspectorate of Prosecution in Scotland.
The report assesses the practice of the Crown Office & Procurator Fiscal Service (“COPFS”) in relation to ss 274 and 275 of the Criminal Procedure (Scotland) Act 1995, which regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials and which are designed to protect them from irrelevant and often distressing questioning when giving evidence, by requiring approval of the court in advance.
Inspectors focused mainly on s 275 applications to the High Court, where the majority are made, but also considered applications in the sheriff court. They reviewed a sample of 123 High Court sexual crimes cases in which 238 applications were made, 38% by the Crown and 62% by the defence. Of these, 78% were granted in full or in part.
The recommendations cover:
- expectations regarding staff record keeping;
- an urgent update of the policy and guidance on managing s 275 applications;
- mandatory dedicated training on sexual history and character evidence for all personnel who are likely to be involved in s 275 applications;
- an instruction that, wherever possible, s 275 applications should be lodged and intimated at the same time as the indictment is served;
- identifying the most efficient process for receiving and actioning s 275 applications intimated by the defence, and encouraging defence counsel to use it;
- guidance for staff on the circumstances in which it may not be appropriate to engage the complainer about s 275 applications;
- the Government to consider seeking to extend the statutory time limits for making s 275 applications, irrespective of whether a right to independent legal representation is introduced;
- ensuring that the manner in which complainers are precognosced about s 275 applications is complainer-led, with complainers being given an informed choice; and
- clarifying who is responsible for notifying complainers of the outcome of s 275 applications.
In addition, COPFS should remind its staff that they are required to advise complainers of the likely outcome of s 275 applications.
The report recognises that this is a complex area of the law which prosecutors, defence counsel and judges find challenging. “They, nonetheless, share a strong desire to ensure complainers are not subject to inappropriate or unnecessary intrusions upon their dignity and privacy,” according to Laura Paton, HM Chief Inspector of Prosecution in Scotland.
Ms Paton commends COPFS for responding promptly to developments in case law which have led to a shift in practice regarding how s 275 applications are managed. She also notes that COPFS has already begun to address the report’s recommendations.
“We found the quality of Crown applications to be generally good, and they usually opposed applications made by the defence when it was appropriate to so do. However, there remains scope for further improvement,” she said. “The Crown has already begun to address the report’s recommendations by publishing new guidance, but more work is needed to make sure policies and guidance are effectively implemented.”
She added: “Complainers are now regularly told about s 275 applications, asked their views on the applications’ contents, and those views are presented by the Crown to the court. However, more can be done to ensure complainers are spoken to about s 275 applications in a sensitive, trauma-informed and complainer-led way.”