Ensuring Fair Treatment for Complainers in Sexual Offences

Ensuring Fair Treatment for Complainers in Sexual Offences Presented by: Mr. Keane and Mr. Convery Date: 25 October 2021 Overview of Tonight's Discussion - - Justification for Change; • Complainer Experience of CJS; and • Article 8 of the ECHR. Q&A The Current Rape Shield Provisions ss. 274/275 of the CP(S)A 1995. - At the outset, the statutory provisions are restrictive not expansive. So evidence must be admissible at common law and in terms of the statute in order to be admitted at trial (see CJM v HMA, [2013] HCJAC 22). - The common law test of relevancy has changed significantly from the days of old (see e.g. Lord Brodies' comments on the old authorities in LL v ΗΜΑ [2018] HCJAC 35 at [19]-[20] & LJG Carloway's comments in CJM v HMA at [28]). - The determination of relevancy at common law is fact specific ('the application of logic and experience to the circumstances of the particular case'...but also 'a question of degree' as per Lord Brodie in LL v HMA) and difficult to generalize about. - 'We simply do not see how free agreement and RB on one occasion, makes its more or less likely, as a matter of generality that there was ...agreement on another occasion many months later.' Lord Brodie in LL v ΗΜΑ. - Deciphering the 'elaborate code' (as per Lord Carloway in CJM v HMA). - S.274/275 is restrictive not expansive (worth repeating this again). - S.274 precludes certain types of evidence (that would otherwise be deemed relevant and admissible at common law) unless an application is made and approved by the court in terms of s. 275. S.274 of the CP(S)A 1995: The Terms of the Statute - (1) In the trial of a person charged with an offence to which section 288C applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer- - (a) is not of good character (whether in relation to sexual matters or otherwise); - (b) has, at any time, engaged in sexual behavior not forming part of the subject matter of the charge; - (c) has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behavior, not being sexual behavior, as might found the inference that the complainer- - (i) is likely to have consented to those acts; or - (ii) is not a credible or reliable witness; or - (d) has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above. S.275 of the CP(S)A 1995: The Terms of the Statute - (1) The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that- - (a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behavior or to specific facts demonstrating- - (i) the complainer's character; or - (ii) any condition or predisposition to which the complainer is or has been subject; - (b) that occurrence or those occurrences of behavior or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and - (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited ///// The Three Tests under s.275 - Specificity: does the evidence in question relate to a specific occurrence or occurrences of behavior, or to specific facts which bear on the question of character or a condition suffered by the complainer? - Relevance: is this evidence relevant to the facts at issue i.e. the guilt or innocence of the accused in re the charges faced? - Balancing Exercise: does the probative value of the evidence outweigh the risk to the prejudice of the proper administration of justice? - Further guidance: (b) "the proper administration of justice" includes• (i) appropriate protection of a complainer's dignity and privacy; and • (ii) ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury's verdict, Lord Hope in DS v HMA, 2007 SC PC 1 - 'The sections seek to balance the competing interests of the complainer, who seeks protection from the court against unduly intrusive and humiliating questioning, and the accused's right to a fair trial. They lean towards the protection of the complainer. The protection is very wide. - 'The important point to notice is that such questioning or the admission of such evidence will only be permitted if the court has been persuaded that it passes... three tests... The three tests are designed to achieve that purpose consistently with the proper administration of justice which, as sec 275(2)(b) makes clear, includes the appropriate protection of the complainer's dignity and privacy. A court which is satisfied that all three tests are met will have concluded that the questioning or evidence relates only to specific matters which are relevant to establishing whether the accused is guilty and are of significant probative value.' To Recap: the Common Law & Ss.274 & 275. - Two stage test. - Neither the common law on relevancy nor the statutory regime affords the court a broad discretion to admit bad character or sexual history evidence on the basis of some nebulous conception of 'fairness' to the accused. This seems to me to be sometimes misunderstood. - The statutory scheme has been found to be compliant with Article 6 of the ECHR (DS v HMA). - The regime is (by design) restrictive. - That being said, this is a difficult area of practice. Section 275 Procedure - Requirements apply to both Crown and Defense; - Written application; - Advance notice; and - Special cause. Requirement for specification - Application must set out: • The evidence sought to be admitted or elicited; • The nature of any questioning proposed; • The issues at trial to which that evidence is considered relevant; • The reasons why that evidence is considered relevant to those issues; and • The inferences which the applicant would wish to draw from that evidence. Role of the court - Court not bound by parties' views (RN v ΗΜΑ, [2020] HCJAC 3); - Court must state reasons for its decision (s. 275(6) & MacDonald v HΜΑ, [2020 HCJAC 21); - Conditions; and - Ability to revisit prior determination; Article 8 of the ECHR - Protection for private and family life; - Human Rights Act 1998 - obligation on public authorities; - Prosecution of sexual offences: - • Y v Slovenia, (2016) 62 EHRR 3; and • Mraović v Croatia, [2020] ECHR 323. Article 8 engaged in section 275 applications? Does Article 8 require representation? - WF v Scottish Ministers, [2016] CSOH 27 • Judicial review of decision to refuse legal aid; • Parties cannot be expected to argue complainer's; likely objection to own applications; and • - Crown cannot represent a complainer. Application to section 275 applications • "If the complainer is not given the opportunity to be heard, how is the court to carry out the balancing exercise required of it?" as per Lord Glennie in WF v Scottish Ministers at [39]. Impact of ss. 274 + 275 questions - Impact: • Prospect and experience of cross- examination in sexual offence cases; and • Fear of sexual past being explored (see e.g. Brookes-Hayes, Burman & Bradley etc.); - In our view a response is required, consistent with adversarial tradition.