Complainers in sexual offence cases should have the right to be heard, with independent legal representation, when an accused seeks permission from the court to lead evidence of their sexual history, according to a newly published paper.
The study, by Eamon Keane of Edinburgh University and Tony Convery, solicitor, assisted by funding from Rape Crisis Scotland, considers how the Republic of Ireland deals with the admission of sexual history evidence in order to consider whether any improvements could be made to the procedure followed in Scotland under s 275 of the Criminal Procedure (Scotland) Act 1995.
It comments that the admission of sexual history and/or bad character evidence in Scottish courts remains problematic, with a dearth of contemporary research resulting in an unclear picture about what exactly is or is not occurring.
Recent appellate judgments appear to suggest that some applications are still being advanced which clearly run counter to the purpose of the legislation and the common law, and 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.
The authors emphasise that they are not proposing that a general right of independent legal representation at trial be introduced for complainers in all sexual offence cases: "We have avoided any discussion of the merits and demerits of such a fundamental change to Scots criminal procedure... Our proposal is, in our opinion, notably more moderate and, as a result, we would suggest, decidedly more realistic."
Among their conclusions, the authors state that a court will be better placed to carry out the s 275 balancing exercise having been addressed on behalf of the complainer. Often, article 8 of the ECHR may require a complainer to have a right to be heard on an application, and a complainer should have a right to be heard whether in summary or solemn proceedings.
Representation should be by solicitor or counsel as appropriate, with a right to appeal, with leave, against the determination. Where an application is made mid-trial, the court should require to adjourn for the foregoing procedure to take place. Non-means-tested funding should be made available for complainers to exercise these rights.