Scottish courts risking right to fair trial in sex cases

Five judges in the the UK’s highest court said that defendants could be failing to receive a fair trial in Scotland because of “rape shield” laws which protect alleged victims by excluding evidence about their credibility or sexual history.

The laws are in the Criminal Procedure (Scotland) Act, where under sections 274 and 275 certain types of evidence relating to the character of the alleged victim and their sexual history are generally inadmissible unless the court allows them after an application has been made.

But defence solicitors have complained the balance of rights has gone too far as applications to submit evidence are nearly always rejected, and they claim his leaves defendants facing unfair trials.

Now their argument has been accepted by the Supreme Court which has urged Scottish courts to modify their approach to stay on the right side of the 1998 Human Rights Act.

As a result the are concerns the judgment could trigger a wave of appeals from men found guilty of sexual offences.

The Supreme Court ruling came after two men - David Daly and Andrew Keir - convicted of rape and other sexual offences in Scotland in October and December 2022, appealed their cases, saying their trials had been unfair as they had not been allowed to use certain evidence to "contextualise" events.

The Law Society of Scotland and the Faculty of Advocates intervened in the case to ask the judges to look at how "rape shield laws" were being used.

The Supreme Court upheld the convictions of Daly and Keir - but the judges, led by Lord Reed, went on to say that the approach used in Scottish courts could be depriving defendants of the right to a fair trial guaranteed by Article 6 of the European Convention.

They said evidence about a complainer's credibility or previous or subsequent sexual behaviour was almost always excluded from trials for sexual offences in Scotland and this approach "is liable to result in violations of defendants' rights to a fair trial because it meant they couldn’t present a full defence to the charges faced."

To do this, they said, defendant needs to be able to call evidence to establish his defence and to challenge the evidence called by the prosecution.

The judges said: "Excessive restrictions on the evidence or questioning which may be led at trial can therefore be incompatible with the right to a fair trial."

And it added: “It may be inevitable that a fair trial for sexual offences will require the complainer to be asked some intrusive questions about her private life.”

But they also said the interests of victims are “important and must be given proper weight” and intrusion into privacy must be “no more than necessary to ensure that the defendant receives a fair trial”.

Reacting to the ruling Sandy Brindley of Rape Crisis Scotland welcomed the fact that the appeals of Daly and Keir had been unanimously dismissed.

But she added: "While the judgment does make it clear that not all sexual history and character evidence should be admissible, the wider implications of the 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 judgement cannot mean a return to the days where women are allowed to be routinely subjected to this type of questioning.”

However rape survivor and campaigner Ellie Wilson told LBC that the ruling could bring clarity.

She said: "I understand people's concerns but in some ways it's a positive thing. The two men who appealed their convictions after being found guilty of quite horrific sexual crimes had their appeals rejected and it was ruled they did have a fair trial, so that's positive for the victims in those cases.

"The Supreme Court also ruled there was no issue with the rape shield law in principle as it ensures a trial is focused on the matters at hand and is not about trying to make the victim look bad, which is also a positive thing.

"Obviously concerns have been raised about how that legislation has been interpreted by judges and the Supreme Court says it's been too narrow, but now we have clarity and hopefully it puts the issue to bed, and allows people to have confidence in the justice system."

She added: "I don't think there's evidence to suggest lots of offenders will now have their convictions quashed or there will be lots of new appeal hearings - it's hard to get an appeal hearing at all so the fact this got to the Supreme Court is quite something, yet those appeals were rejected."

Patricia Thom, president of the Law Society of Scotland, said the ruling was a “profoundly important judgment and one that goes to the very core of the right to a fair trial."

She added that it would "clearly require a change in how Scottish courts handle certain types of evidence in sexual offence cases.

“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.”

Advocate Tommy Ross KC told LBC he was pleased with the decision and the result was swinging "the pendulum back to the middle."

"That's where everyone wants it to be and it's gone too far the other way and this might bring it back to something approaching equality.

"Scottish judges have been going way too far in supressing the rights of the accused to cross examine and submit evidence, and had taken a wrong turn, and not given sufficient weight to the accused's right to a fair trial and five Supreme Court justices have agreed with us."

He said Lord Reed had been "clearly astonished" at some of the actions of Scottish judges but he said it was unlikely there would a raft of appeals due to time bars on cases.

He added "The problem is it became all about protecting the person making the allegations and nothing about the question of a fair trial. They [judges] now essentially have to start with a blank canvas and say a lot of post 2013 decisions were wrong and we need to take greater account of the accused's rights to have a fair trial.

"Everyone was happy with the idea that if it was humilating for a complainer then there had to be justification for doing it, but we've gone so beyond that that you can barely ask anything. But they will never allow gratuitous questioning of someone's private life which has nothing to do with the case - it will never be allowed and nor should it."

A spokesperson for the Crown Office and Procurator Fiscal Service said: "We note the decision of the Supreme Court and are carefully considering its full terms. We will provide updated guidance across the organisation as appropriate.

"Scotland’s prosecution service remains committed to ensuring that every case is handled fairly, and in accordance with the evidence and the law."