Strengthening Complainer's Voice in Sexual Offences Cases

Strengthening Complainer's Voice in Sexual Offences Cases Presented by: Mr. Keane and Mr. Convery Date: 18 October 2021 Overview of Tonight's Discussion - Summary of Our Proposal; - Overview of the Law and Procedure in this Area; - ILR: Our Proposal in Practice; and Summary of Our Proposal - We believe that complainers in sexual offences cases should be entitled to be heard, and to be legally represented for that purpose, at s.275 hearings to determine whether an application to lead evidence prohibited by s.274 of the CP(S)A 1995, should be granted or not. Background to Our Proposal - Time spent in Ireland in 2019, supported by Rape Crisis Scotland. - Publication of a report available online. - Overview of law in this area and justifications for our argument to follow, things to bear in mind though at the outset; • Our proposal's core is procedural; and • Lack of contemporary empirical research in this area is concerning (and should, in our view, be addressed). Overview of the Law and Procedure in this Area: The Basics - Relevancy: Evidence is relevant and thus admissible when it either bears directly on a fact put in issue by the libel or does so indirectly because it relates to a fact which makes a fact in issue more or less probable (CJM v HMA, [2013] HCJAC 22. - Collateral Evidence: evidence which has too much of an indirect bearing on the facts at issue to be considered relevant, and thus for the sake of expediency, is neither investigated nor admitted (Brady v HMA, 1986 JC 68 73 & CJM v ΗΜΑ,). - Character Evidence: evidence related to a witness' general reputation in society. Bad character evidence of witnesses is generally excluded in criminal trials as it is deemed collateral to the facts in issue. (Brady v ΗΜΑ). - There are exceptions to the general rule that evidence of bad character is collateral and thus inadmissible. In general terms, bad character evidence might be admissible where it is relevant to the facta probanda (the crime charged). - Historically, in the context of sexual offences, an exception to the general rule allowed an attack on the 'unchaste character' of the complainer (which included evidence of sexual history with the accused) on the basis this question was relevant, as it bore on her credibility and reliability re the offence charged (Dickie v HMA (1897) 24 R (J) 82). - Developing Scottish societal attitudes leads to criticism of common law of relevance (and court room practices) culminating in the introduction of, what are known colloquially, as the 'rape shield' provisions in 1985, targeting generally 'the twin myths'. - Questions continued to be asked about efficacy of these reforms following empirical research on their operation (see e.g. Burman et al 2002 & 2007). - The original rape shield provisions have been repeatedly amended. - Current iteration in ss.274 & 275 of the CP(S)A 1995. Benefits of ILR for complainer - Explain legal framework; - Provide informed professional opinion; - Take detailed, privileged instructions; - Advocate on complainer's behalf; and - Explain implications of determination. Why an ILR? - - - Why not Crown? • Existing difficulties; • Avoids conflict; • Ensures voice heard where application made by Crown; and • Does not detract from Crown role Why not advocacy worker? • Complementary to advocacy worker • Not fully equipped Why not more expansive? Summary of Our Proposal - We believe that complainers in sexual offences cases should be entitled to be heard, and to be legally represented for that purpose, at s.275 hearings to determine whether an application to lead evidence prohibited by s.274 of the CP(S)A 1995, should be granted or not. ILR: An Overview of Our Proposal - Genesis of the right? Judicial decision or legislation but key issue is complementary detailed rules. - Scope of the right? On balance, right should apply to all s.275 applications. Problematic to seek to carve up s.275 applications between sexual and non-sexual matters in our view. - Information to be provided to the complainer? i) a copy of the 275 application ii) any documents referred to in the application and iii) a copy of the charges on the complaint or indictment to which the application relates. Sign posting information also useful. - Timelines and associated matters: As has been mentioned there are strict procedural timelines which regulate the making of s.275 applications. 14 days' notice of an application for a complainer seems to us sensible. - As for late applications, we believe court should adjourn ex proprio motu to permit the complainer to obtain legal representation. - In respect of applications to be revisited by trial judge, our provisional view is that the complainer should not be entitled to engage legal representation again at this stage as court should have a note of submissions made on their behalf from initial determination. - Appeals? We believe that a complainer should have a right of appeal - against a decision to grant in whole, or in part, a s. 275 application prior to the leading of the evidence in question at trial. Appellate process should largely mirror system of appeal for Crown and - defence against decisions made at preliminary diets under solemn procedure (i.e. s.74 of the CP(S)A 1995). Consideration should be given to implementation of clear framework for summary appeals in this area. - Leave sought from judge at first instance by way of oral motion. Thereafter leave sought from superior court. Some delay inevitable. - Grounds of appeal should be erroneous exercise of discretion as a matter of law and/or error in law. Not simply that a different decision on the application should have been reached. - Basis for grant of leave should be whether grounds are arguable. - Service? Important to get this right given issues we understand have arisen in the context of sensitive record cases. Our suggestion is either the court or the reporting officer at Police Scotland assumes responsibility for service on the complainer. - Representation? Complainer should be entitled to legal representative with rights of audience commensurate with forum in which the case is being prosecuted. - Funding of system? We believe that the complainer should be automatically entitled to free legal representation. Legal aid regulations should be amended accordingly. Means testing is inappropriate in the circumstances.