Scottish judges have violated the rights of rape suspects, the UK Supreme Court decided yesterday. As a result, the courts of Scotland are now under a duty to modify their current approach to the admissibility of evidence in sexual offences cases. The ruling applies not only to future hearings but to past decisions and even to trials that are currently taking place.
The Supreme Court accepted that the law should give proper weight to the interests of an alleged victim, known in a Scottish trial as the complainer. “It is intolerable”, the justices added, “that the complainer should be subjected to needlessly intrusive and humiliating questioning, as sometimes happened in the past.”
But, they continued,
the accused cannot be presumed to be guilty. On the contrary, he is entitled to a presumption of innocence: it is for the prosecution to prove his guilt to the satisfaction of the jury; and… he is entitled to present a full defence.
It is of vital importance that he should have that opportunity. If he is wrongly convicted, in a typical case where there is no eyewitness and no medical evidence bearing on the critical issue, then there is little or no prospect of a miscarriage of justice being detected after the trial.
By contrast, they added, the approach currently being taken in the Scottish courts “is liable to deprive the accused of the opportunity to put evidence before the jury which is obviously relevant, in the ordinary sense of the word, and which would, if accepted, significantly strengthen his defence”.
Background
The Supreme Court does not normally hear criminal appeals from Scotland. But when parliament passed the Human Rights Act 1998, the UK’s final court of appeal was given the power to decide whether courts and other public authorities in Scotland had acted incompatibly with the human rights convention. Article 6 of the convention guarantees the right to a fair trial.
At a hearing just over a year ago, five justices considered appeals by David Daly and Andrew Keir, who had been convicted of rape in separate cases. Among those who sat were the court’s president and deputy president — both from Scotland — and the court’s two female justices.
Daly and Keir were told afterwards that their appeals would be dismissed because their rights were not infringed. But the issues raised by their appeal will govern the way future cases are decided.
The law
Section 274 of the Criminal Procedure (Scotland) Act 1995 prohibits evidence or questioning concerning the character, behaviour or sexual history of the complainer. But section 275 provides an exception to the general rule if the probative value of the evidence is likely to outweigh the risk of prejudice. At issue was how the Scottish courts exercised their discretion in the interests of justice.
In its capacity as an appeal court, the High Court of Justiciary has recently developed common law concepts of relevant and collateral evidence so that evidence of the complainer’s credibility or sexual behaviour is almost always excluded from trials for sexual offences. The Supreme Court held that this approach was liable to result in violations of an accused’s right to a fair trial.
Modifying the courts’ approach could mean a complainer would be asked intrusive questions about her private life, the Supreme Court accepted. But the trial judge would have to make sure that the intrusion was no greater than necessary.
Reaction
After raising “serious concerns” about the way sexual offences cases were being tried by Scottish judges, the Law Society of Scotland and the Faculty of Advocates were allowed to make submissions to the court.
Responding to the ruling yesterday, Patricia Thom, president of the Law Society of Scotland, said:
Like many jurisdictions around the world, Scotland has worked hard to ensure that complainers are protected from unjustified intrusive questioning while also upholding the accused’s right to present a full and proper defence. That balance was carefully set out in legislation passed by the UK and Scottish parliaments and approved by both our highest courts and the European Court of Human Rights.
Yet, in recent years, many in the legal profession have become concerned that the approach in some cases did not reflect that intended by parliament resulting in accused persons being denied the right to present potentially relevant evidence at trial. The Supreme Court has found the concerns we expressed are justified.
It is now clear that Scottish courts will need to revise their approach in these cases and return to the system agreed by the UK and Scottish Parliaments, giving trial judges greater discretion to decide what questions may or may not be asked.
Our decision to intervene in these cases was not taken lightly but the decision of the court today demonstrates that we were right to do so, in the public interest. The fundamental right to a fair trial is one that must be cherished and protected.
But Rape Crisis Scotland, which was also given permission to intervene, expressed a note of caution.
Sandy Brindley, the support group’s chief executive, welcomed the decision in the Daly and Keir cases, noting that the sexual history and character evidence of the complainers in their cases were found not to be relevant.
However, she continued,
the wider implications of this ruling will have a profound and distressing impact on survivors of rape and sexual violence who, through no fault of theirs, now find themselves in an incredibly uncertain position. There is a lot of work within the criminal justice system that needs to happen urgently which must ensure their concerns are addressed.
Protecting women in rape cases from irrelevant and humiliating questioning has a difficult history in Scotland. We only need to look back five years to find an instance of a complainer in a rape case being asked 11 different questions on what she was wearing immediately prior to and during the incident.
The Supreme Court judgment cannot mean a return to the days where women are allowed to be routinely subjected to this type of questioning.
Comment
The Supreme Court analysed recent Scottish appeals in great detail. Its judgment yesterday will make uncomfortable reading for Scottish judges, particularly coming from a court headed by two of their former judicial colleagues in Edinburgh.
One senior Scottish judge had said “the fact that a person may have consented to sexual activity on one occasion has no bearing at all on whether they consented on another occasion…” The Supreme Court said: “with all possible respect, this is troubling, both as a general proposition and in its application to the facts of the case before the court.”
Another judge had said: “if consent cannot lawfully be issued in advance, the question of consent in relation to the sexual act between the accused and the complainer specified in the charge cannot be illuminated, or determined to any extent, by prior expressions of interest in sexual conduct with the accused…” The Supreme Court said: “that, with respect, is a non sequitur.” Its reasoning included a “logical fallacy”.
The Supreme Court justices said yesterday that the Scottish courts’ duty to modify their current approach
will cause an inevitable degree of disruption and delay in cases concerned with sexual offences which have not yet gone to trial, cases where the trial is still in progress, and appeals that have not yet been decided. The interval between the hearing of these appeals and the delivery of this judgment should, however, have given the responsible authorities time to consider their response.
It remains to be seen how many cases the Scottish criminal appeal courts will now have to reconsider —and how willing they will be to do so.