Report: Right to Independent Legal Representation for Sexual Offences Complainers
The admission of sexual history and/or bad character evidence in Scottish courts under the Criminal Procedure (Scotland) Act 1995 remains problematic. There is a dearth of contemporary research resulting in an unclear picture about what exactly is or is not occurring.
The common law has, on the one hand, in relation to relevancy, been progressively advanced by the High Court of Justiciary in recent years; however, recent appellate judgments also appear to suggest that some applications are still being advanced which clearly run counter to the purpose of the legislation and the common law. It is known from recent research in Scotland that the potential admission of sexual history evidence remains an issue of considerable concern for complainers however the adversarial system of proof is a fundamental feature of the Scottish criminal justice system.
In 2019, Eamon Keane and Tony Convery, assisted by funding from Rape Crisis Scotland, spent time in Ireland speaking to stakeholders considering how that jurisdiction deals with the admission of sexual history evidence in order to consider whether any improvements could be made to the procedure followed in Scotland.
Their conclusions are contained in the report, 'Proposal for independent legal representation for complainers where an application is made to lead evidence of their sexual history or character.' Whilst calling for further empirical research to be undertaken in Scotland, they believe, it is arguable that complainers should be provided with independent legal representation at hearings where s.275 applications are to be determined. They reach this conclusion based on an analysis of case law related to Article 8 of the ECHR. They also draw upon observations based upon the operation of a similar right in Ireland which also has an adversarial system of proof.
On 3 August 2020, Eamon Keane and Tony Convery hosted an online report launch to present their conclusions and to facilitate discussion in respect of the proposal.
Watch the recording:
Impact of report
The report has now been cited and approved in a review of sexual offences cases in Scotland led by the Lord Justice-Clerk, Lady Dorrian. The review group, which featured Scottish judges, and representatives of the Crown, defence and victims’ organisations, unanimously agreed with the conclusions of the report, and endorsed its recommendations.
Several Scottish political parties have now also undertaken to consider implementing the Dorrian Review’s conclusions, if elected in the upcoming May 2021 elections for the Scottish Parliament.
To date, the report has also been referenced in work undertaken by the Equality and Human Rights Commission in Scotland, which was led by Edinburgh Law School's Professor Sharon Cowan, as well as the Scottish Government and Her Majesty’s Inspectorate of Prosecution in Scotland.