5 Engaging with the complainer
The Crown's duty
144. In the case of RR v HMA, decided on 7 October 2020, the court clarified the Crown's duty when engaging with complainers regarding section 275 applications.
145. The case arose from a petition to the nobile officium of the court. The petitioner was the complainer in criminal proceedings in which the accused had been charged with rape. A section 275 application to lead evidence relating to the complainer's sexual history with the accused was made by the defence and partially granted at a preliminary hearing. The petitioner was not advised that the application had been made, and was only told of it four months later when the Crown sought to precognosce her. The court noted that the petition raised an important issue of principle in relation to a complainer's right to participate in criminal proceedings.
146. In reaching its decision, the court considered the Victims and Witnesses (Scotland) Act 2014 as well as Article 8 of the European Convention on Human Rights (the right to privacy). Section 1 of the 2014 Act sets out principles to which the Lord Advocate and others must have regard when carrying out their functions in relation to complainers. The principles include that a complainer should be able to obtain information about what is happening in her case (section 1(3)(a)) and that, in so far as it would be appropriate to do so, a complainer should be able to participate effectively in the proceedings (section 1(3)(d)).
147. The court held that, by virtue of the complainer's rights under both the 2014 Act and Article 8, 'it is the duty of the Crown to ascertain a complainer's position in relation to a section 275 application and to present that position to the court', irrespective of the Crown's own attitude to the application. The court further stated the duty will almost always mean that the complainer must be:
(1) told of the content of the application
(2) invited to comment on the accuracy of any allegations within it
(3) asked to state any objections which she might have to the granting of the application.
148. These three requirements have been characterised as the Crown's duty to engage with complainers in relation to section 275 applications. In practice, the complainer's views are established by the Crown during an interview known as a precognition.
149. At the time RR was decided, the Crown's policy on engaging with complainers about section 275 applications was set out in the first iteration of Operational Instruction 13 of 2020 (OI 13/20). The operational instruction appears to focus only on applications made by the defence, stating that when a section 275 application is intimated to the Crown, the complainer should 'as a general rule' be advised that the application has been received and that it will be considered by the court. The question of whether the complainer required to be precognosced on the application's contents was to be addressed on a case-by-case basis.
150. This first iteration of OI 13/20 was dated 9 June 2020, before RR was decided but after the section 275 application in respect of the complainer in RR had been made and partially granted. The Crown policy in place at that time could be found in its Sexual Offences Handbook. The handbook says that complainers should be informed of all section 275 applications, whether made by the Crown or the defence, but that they need only be precognosced on the issues raised in applications on the instruction of a senior member of staff or Crown Counsel. Despite the guidance set out in the handbook, the case of RR suggests that the Crown was not routinely informing complainers when section 275 applications were made.
151. In response to RR, the Crown revised OI 13/20 to reflect its duty to engage with complainers regarding section 275 applications as set out by the court. The operational instruction now clearly frames engagement with complainers as a duty incumbent on the Crown, rather than simply a procedure to be followed as had previously been the case. The latest iteration of OI 13/20 states that there is a strong presumption that the complainer will be advised when a defence section 275 application is intimated to the Crown or when a Crown application is lodged, and that the complainer will be precognosced to establish their position on the facts and attitude to the application.
152. The current iteration of OI 13/20 sets out how the Crown should fulfil its duty to engage with complainers regarding section 275 applications. The essential elements are that:
- the complainer should be informed of the application
- the complainer should be invited to a meeting to discuss the application and to be precognosced on its contents
- the complainer should be accompanied to the meeting by an advocacy or support worker or another person if they wish
- the complainer should be advised of the full content of the application
- the complainer should be asked about their position in relation to each relevant point in the application and their attitude to the application
- the complainer should be advised that their position on the facts and attitude to the application will be made known to the court
- the complainer should be advised of the Crown's view on the likely outcome of the application
- a careful note should be made of what the complainer was told and what the complainer said
- if time permits and the complainer wishes it, the Crown should write to the complainer immediately following the precognition regarding what was discussed and what will be done with the information
- following the hearing, the complainer must be advised of the outcome of the application
- a record of all attempts to engage with the complainer should be kept, including any issues encountered which may lead to delay or failure to obtain the required information.
153. The operational instruction also reminds Crown personnel of the need to fulfil the duty of engagement in a way which accommodates and responds to the vulnerabilities or other requirements of the complainer.
Implementation of the Crown's duty
154. During our inspection, we considered the extent to which the Crown had implemented its duty to engage with complainers regarding section 275 applications. We also considered the extent to which it adhered to its own policy and procedures, as described in OI 13/20 and set out at paragraph 152. We did this by speaking to a range of Crown personnel as well as external stakeholders about how the Crown engaged with complainers and by considering the implementation of its duty and its policy in Phase 2 of our case review. This involved reviewing 15 cases in which the Crown required to engage with 26 complainers regarding 37 applications.
155. The revision of OI 13/20 in response to RR has prompted a transformation in how section 275 applications are managed by the Crown in respect of complainers. While no baseline data is available on the extent to which complainers were informed of and precognosced about applications prior to RR, it was clear from our interviews that there has been a significant shift in practice since the judgment. Complainers are now regularly told about section 275 applications and are asked their views on their contents. The duty to engage the complainer about section 275 applications is usually carried out by case preparers, often on the instruction of an advocate depute.
156. In Phase 2 of our case review, there were 34 occasions on which the Crown should have engaged the complainer about a section 275 application. On 29 (85%) of these occasions, the Crown engaged or sought to engage the complainer. While there were five occasions on which the complainer should have been engaged but was not, we consider in light of our discussions with staff that practice has further developed since these applications were dealt with and that they would likely be managed differently today. Nonetheless it is useful to set out the circumstances so as to avoid similar situations arising again. Of the five occasions on which complainers were not engaged:
- on two occasions, a decision was made not to engage the complainer about a docket application because its content had been the subject of an earlier discussion with the complainer and the complainer's views were already known. We consider that the complainer should nonetheless have been advised of the existence of the application
- on two occasions, the complainer was not notified of a section 275 application relating to a docket. The instruction to engage complainers about docket applications had only recently come into effect although should nevertheless have been followed
- on one occasion, the complainer was not engaged about a revised defence application which was an expansion of the original application about which she had been engaged. It was our view that the revised application merited further discussion with the complainer.
157. Generally, we consider that the requirements of RR are being put into practice by the Crown and that engaging complainers about section 275 applications is now routine. However, in OI 13/20, the Crown has set out several more detailed steps which it considers to be part of the engagement process some of which are not yet being routinely implemented. These are described further below. There are a range of reasons why some of these steps are not yet being fully implemented, including low awareness of certain requirements and the often very limited timescales in which the duty of engagement must be carried out. For some staff, including many case preparers who carry out the duty of engagement with complainers, a better understanding of the reasons a duty of engagement with the complainer exists would assist their approach to section 275 applications, particularly when they are uncertain about a particular course of action or whether a specific step in OI 13/20 is strictly necessary in the context of a case.
158. The fact that the steps outlined in OI 13/20 are being implemented to varying degrees raises a broader issue about how the Crown puts policy into practice. The policy set out in OI 13/20 is a good reflection of the requirements of RR and has been developed and refined in consultation with stakeholders, which we welcome. The challenge for the Crown is ensuring that good policy is consistently applied in practice. This is discussed further at paragraph 76. In the context of OI 13/20, a particular challenge for staff may have arisen from it being revised regularly in a short space of time, with the fourth iteration of the instruction being published within 17 months of the first. This required staff to keep abreast of each version, and may account for the low awareness of some requirements that were added or clarified more recently.
159. Given that OI 13/20 sets out numerous steps to be followed when engaging complainers about section 275 applications, several of those we interviewed suggested that a checklist or aide-memoire might be helpful for staff to ensure that all steps are considered. They also said a checklist or aide-memoire would help them explain the complexities of the law on sexual history and character evidence to complainers in a way which might be more easily understood. One person we spoke to said they had developed their own checklist to ensure they were following the operational instruction.
When not to engage with complainers about section 275 applications
160. In RR, the court said that the Crown's duty to engage the complainer will 'almost always' mean that the complainer must be told of the application, invited to comment on the accuracy of any allegations within it, and be asked to state any objections to its granting. OI 13/20 states that it is clear the court expects cases where the Crown does not engage with the complainer to be 'exceptional' and that there is a 'strong presumption' the complainer will be advised of an application and precognosced on its content. Where it is considered that there are exceptional reasons not to engage the complainer, or where the application relates to evidence to be taken from a child witness, instructions should be sought from Crown Counsel.
161. OI 13/20 notes that work is ongoing within COPFS to develop more detailed guidance around circumstances in which it may not be appropriate to engage the complainer about a section 275 application. At the time of our inspection, such guidance had not yet been made available to staff but was much needed.
162. The circumstances in which it may not be appropriate to engage the complainer about an application was an issue that generated considerable discussion and a variety of views during our interviews. While some thought the duty to engage complainers was required in every case regardless of the circumstances, others felt that such a blanket approach was not appropriate. They suggested various scenarios in which it may not be appropriate to engage complainers, which generally fell into two categories:
(1) where they considered there was no value in telling complainers about an application or precognoscing them on its contents. These tended to be Crown applications where the evidence to be led was drawn from previous statements or precognitions of the complainer. They queried whether there was any value in asking a complainer about this evidence on a second occasion.
(2) where they were concerned that the application may cause distress to the complainer due to its sensitive contents or intrusive nature.
163. In respect of the second category, some Crown personnel were hesitant to engage complainers about an application that might cause distress, while others thought the likelihood of distress on its own was insufficiently exceptional to justify not engaging the complainer. This latter group thought only a combination of the following factors would merit not engaging the complainer:
- that the complainer is particularly vulnerable and there is a real risk of harm being caused as a result of being told about the application and
- that the application itself is a particularly egregious invasion of a complainer's privacy, such that the Crown considered it unlikely that it will be granted.
164. In these circumstances, some advocate deputes said they would not instruct a precognition of the complainer and would explain their reasoning to the court at the preliminary hearing. Only if the court then directed that the complainer be precognosced would the advocate depute request that it be carried out.
165. Many of the discussions we had with Crown personnel about the circumstances in which it may not be necessary to engage complainers arose out of genuine concern for the wellbeing of complainers and a desire not to waste complainers' time or cause unnecessary upset. Some appreciated that this was a paternalistic approach, that risked professionals substituting their views on what is best for the complainer for the views of complainers themselves. It risked giving insufficient attention to complainer empowerment and choice, key elements of trauma-informed practice. It also appeared to be at odds with the ratio in RR – that the duty of engagement arises from the complainer's rights to information and to participate in proceedings. These are rights which the Crown should safeguard.
166. It was clear from our interviews that Crown personnel were keen to have more guidance and would welcome examples of the exceptional circumstances when it was not necessary to engage the complainer. The absence of guidance risks Crown personnel developing their own, inconsistent, approaches. We understand that such guidance may be included in a revised Chapter 9 of the Sexual Offences Handbook which has not yet been published.
COPFS should provide staff with guidance on the circumstances in which it may not be appropriate to engage the complainer about section 275 applications.
167. There will be some cases where the Crown is unable to engage the complainer about a section 275 application. This could include, for example, where the complainer does not respond to efforts made to contact her. In such cases, compliance with the requirement in OI 13/20 that a record is kept of all attempts to engage the complainer and any issues encountered will ensure that the Crown is able to address the court as to the reasons why the complainer's views on the application are not known.
168. Section 275B(1) of the 1995 Act requires that in the case of proceedings in the High Court, section 275 applications shall be made no later than seven clear days before the preliminary hearing. Late applications will only be considered where special cause is shown.
169. Given that the indictment is served not less than 29 clear days before the preliminary hearing, there is a short window in which section 275 applications should be made. While it is possible that a Crown application could be lodged at the same time as or shortly after the indictment is served (although this does not always happen in practice), the defence will require time to assess the indictment, take instructions from their client and draft an application. It is often the case, therefore, that section 275 applications are made at or very close to the deadline of seven clear days before the preliminary hearing. Moreover, those who instruct or carry out the precognition of the complainer are not always immediately made aware of a defence application being lodged, further shortening the time before the preliminary hearing. This leaves little time for the Crown to fulfil its duty to engage the complainer regarding section 275 applications. This was one of the most commented on issues during our interviews with COPFS personnel, with almost all of those working on High Court cases saying that more time is needed to ensure the duty can be fulfilled in a way which takes account of the complainer's needs.
170. Indeed, in our Phase 2 case review, we found that it was not uncommon for applications to be made seven days or less before the hearing. This resulted in the duty to engage the complainer being carried out at short notice. Of the 26 occasions in our case review on which complainers were precognosced about a section 275 application, 20 (77%) took place seven days or less before the next hearing in the case. On two of those occasions, the precognition took place one day before the hearing.
171. The short timeframe in which the Crown must engage with complainers about section 275 applications has an impact on the manner in which complainers are contacted, how precognitions are conducted, how much time complainers have to consider their position and whether complainers receive any written information about applications. Many of those we interviewed felt under pressure to engage complainers as quickly as possible, and were concerned they were not approaching it in a way that would be sensitive to complainers' needs and which would best support complainers, including by giving complainers time to consider the application rather than expecting an immediate response. They were particularly worried about causing complainers to disengage from the justice process.
172. In some cases and for some complainers, the short timescales are not problematic. For example, some section 275 applications – particularly those made by the Crown – may not be particularly contentious from the complainer's perspective. In those cases, complainers may be happy to give an immediate view on the application's contents. However, where an application contains intimate or contentious allegations about a complainer, great care should be taken to engage with the complainer in a sensitive and trauma-informed manner and to ensure appropriate support is available.
173. We heard that the Lord Advocate had indicated that preliminary hearings should be adjourned where there was insufficient time to engage complainers in an appropriate way. However, only some personnel appeared to be aware of this and the Lord Advocate's preferred approach is not yet reflected in OI 13/20 or other guidance. Thus, while some case preparers were willing to advise an advocate depute that more time was needed to engage the complainer, others felt they had to meet the deadline at all costs. Similarly, some advocate deputes were willing to seek an adjournment of the preliminary hearing, whereas others were not.
174. This resulted in some complainers being approached inappropriately. We were concerned about instances where, after unsuccessful attempts to reach the complainer by phone, COPFS personnel had instructed the police to attend the complainer's address to ensure she was available for precognition in order for her views to be made available to the court at the preliminary hearing. We do not consider this is what the court envisaged as a consequence of RR. Our view was shared by many of those we interviewed including senior leaders in COPFS and members of the judiciary. This approach cannot be said to be a trauma-informed and person-centred approach to justice.
175. Some complainers were also described as not engaging with the section 275 application process – while this may have been true of some, it appeared to us as though complainers who were simply not available to speak to COPFS in a very short timeframe were being described in this way, with insufficient consideration being given to complainers' circumstances (such as being unable to answer the phone due to work or other commitments).
176. As the system currently operates, there is insufficient time in many cases for COPFS to engage with complainers in a sensitive and trauma-informed way. The Scottish Government has recently consulted on adjusting the statutory time limit for making section 275 applications. This was in the context, however, of a broader consultation on introducing independent legal representation for complainers regarding section 275 applications and the assumption that complainers will need additional time to secure representation. It is our view that, regardless of whether independent legal representation is introduced, the statutory time limit for making section 275 applications in the High Court should be extended. This will provide COPFS with additional time in which to engage complainers appropriately and would be more in keeping with a trauma-informed and person-centred approach, as set out in the Scottish Government's Vision for Justice in Scotland. It would also allow the Crown to better reflect the general principles in section 1A of the 2014 Act in its approach to complainer engagement, including that victims should be treated in a respectful, sensitive and tailored manner and should have their needs taken into consideration.
The Scottish Government should consider seeking to extend the statutory time limits for making section 275 applications in the High Court, irrespective of whether a right to independent legal representation is introduced.
177. Among those we interviewed, there was a general consensus (except among defence counsel) that lodging applications 14 days before the preliminary hearing would be preferable. There is a need to strike a balance between giving the Crown sufficient time to engage complainers and ensuring the defence have sufficient time post-indictment to prepare and lodge applications. Alternative solutions were also suggested to us, including extending the time between the service of indictments and preliminary hearings.
178. Whereas the short time limits were one of the issues raised with us most often by those working in the High Court, it is notable that it was rarely mentioned by those working in the Sheriff Court where applications must be lodged 14 days before the trial diet (see paragraph 243).
179. Pending any legislative change, there are other measures that can be taken by the Crown to maximise the time available to engage with complainers appropriately. These include lodging section 275 applications at the same time as the indictment wherever possible, ensuring defence applications are identified and responded to more quickly (see Recommendation 5) and consideration of an adjournment by way of a section 75A minute where more time is required to engage the complainer in a manner which is appropriate to their individual needs.
Arranging the precognition
180. In Phase 2 of our case review, of the 26 occasions on which complainers were precognosced:
- on 22 (85%) occasions, the precognition took place by telephone at the same time the complainer was advised that a section 275 application had been made
- on four (15%) occasions, the complainer was contacted and a precognition was arranged for another time.
181. This trend of complainers being precognosced at the same time as being notified of the section 275 application was confirmed in our interviews with case preparers who said complainers were often keen to 'get it over with'. While this is often at the request of complainers, we were concerned that these immediate precognitions give the complainer little time to consider the application and reflect on their position, particularly where the application is sensitive or intrusive. Writing to the complainer post-precognition to confirm their position allows time for reflection but this was seldom done (see paragraph 199). We heard about one complainer who felt they had been contacted 'out of the blue' about an application and then felt under pressure to give an immediate view. COPFS should consider how best to balance the needs of complainers with the need to carry out precognitions within often short timescales. It is hoped that an extension of the statutory time limits would allow more flexibility in this regard.
182. There is a clear expectation in OI 13/20 that complainers should be precognosced on the contents of a section 275 application at an in-person meeting. However, OI 13/20 also states that if the complainer does not wish to meet or if there is not sufficient time to meet, the discussion may take place by telephone. Given the date it was drafted, the operational instruction acknowledges the restrictions on in-person meetings caused by Covid-19, and refers to Crown guidance on conducting precognitions via Microsoft Teams.
183. In Phase 2 of our case review, there were 26 occasions on which complainers were precognosced:
- in 25 of the 26 (96%) occasions, the precognition took place via telephone. On one of these occasions, a precognition by Teams had been arranged but took place by telephone following a technical difficulty
- on the remaining one occasion, the precognition was conducted in person.
184. From our interviews and our case review, it was clear that few in-person meetings had taken place regarding section 275 applications. While restrictions associated with the pandemic have undoubtedly played a significant role, there does not appear to have been a shift to in-person meetings commensurate with the easing of restrictions.
185. From our discussions with staff, it appeared the limited timescale in which precognitions must take place was also a key driver in meetings being conducted by phone rather than in-person. Staff said there simply was not enough time to contact a complainer to arrange an in-person meeting. Moreover, we heard that many complainers upon being contacted preferred to 'get it over with' on the phone, rather than scheduling another discussion. Other factors in the low number of in-person meetings included:
- it was often logistically easier for complainers to discuss matters by phone as this was less disruptive to work and child care arrangements and was easier for those living in more remote areas
- a lack of awareness among some staff that in-person meetings were deemed preferable in OI 13/20
- a perception among some staff that for 'straightforward' applications, in-person meetings were not merited. By 'straightforward', staff tended to mean applications which they did not deem to be particularly sensitive, or those – usually Crown – applications which were based on statements previously made by the complainer.
186. Some thought a precognition by Teams was preferable to one by telephone. However, the use of Teams appeared to be limited. It was not clear whether this was because it was not routinely offered as an option to the complainer or whether take-up from complainers was low. We heard from Rape Crisis Scotland that it regularly uses Teams to engage with survivors and they find it to work well.
187. We appreciate that pandemic-related restrictions have made meeting in person difficult or even impossible at times, and that telephone precognitions may be logistically easier for both complainers and COPFS. Nonetheless, we are concerned that there have not been more in-person meetings recently and that Teams has not been used more often. The means by which precognitions should take place should be complainer-led, rather than what may be quickest or most convenient for staff. Each complainer should have the options clearly set out and should be invited to state a preference which should then be facilitated. Consideration should also be given to the nature of the application to be discussed. Where the evidence sought to be led is sensitive and likely to cause distress, case preparers may wish to encourage complainers to attend an in-person meeting and to have a supporter present.
COPFS should ensure that the manner in which complainers are precognosced about section 275 applications is complainer-led, with options being clearly set out and complainers being invited to state their preference which should be facilitated.
Attendance of supporters
188. The latest iteration of OI 13/20 notes that when meeting with complainers to precognosce them about section 275 applications, complainers may be accompanied by an advocacy or support worker or another person if they wish. With the complainer's consent, a support worker may also be notified by the Crown of the application so that the worker can provide the complainer with ongoing support. OI 13/20 notes that if a complainer who does not already have access to a support worker desires it, a referral should be made.
189. We welcome the recognition in the policy that the issues raised in a section 275 application may be upsetting for the complainer and that additional support may be required, and we understand this aspect of the policy was developed and refined following consultation with stakeholders. During our interviews, senior leaders within COPFS also emphasised the importance of complainers having access to advocacy and support workers, which we also welcome.
190. Nonetheless, it appears from the evidence we gathered that supporters are rarely present at meetings about section 275 applications. In Phase 2 of our case review, of the 26 occasions on which meetings and precognitions about section 275 applications took place, a supporter was only present at two. Both occasions were in respect of the same complainer. The complainer was a child who lived in a care home – contact was made with the child via a support worker, and the support worker was present during the meeting.
191. It was not clear why supporters were rarely present, although it may largely be due to the way in which the meetings are taking place. As noted above, upon first making contact with a complainer about a section 275 application, case preparers told us they rarely scheduled a meeting to which a supporter could also be invited. Instead, case preparers said complainers often preferred the meeting, including the precognition, take place immediately while on the phone.
192. It may also be the case that complainers are not routinely being informed of the option of having a supporter present – one person we spoke to said they would be happy to facilitate this, if asked. However, it seems unlikely to us that complainers would request the presence of a supporter unless they had already been made aware this was an option available to them. In contrast, some case preparers we spoke to said they routinely offered complainers the chance to have a supporter present, but it was not always taken up. They also said that if a complainer became distressed during the meeting, they would seek to signpost them to additional support, either directly or by asking VIA to make a referral. We heard from Rape Crisis Scotland that it had offered to provide support to any complainer who did not already have a support worker in place in respect of a section 275 application, but there was little awareness of this offer among case preparers.
193. Among those we interviewed, there was a degree of confusion as to whether a supporter should be present during all or only part of the meeting. OI 13/20 states that the person attending the meeting to provide support to the complainer should not generally be present when any substantive precognition takes place. Instead, they can be present immediately before and after any precognition, including when the complainer is advised of the application in her case and when the law and practice around section 275 applications is explained. Some of those we interviewed thought the supporter could and should be present throughout. It appeared that either they were unfamiliar with the policy, or that the policy has not kept pace with evolving practice. Those organising the meetings and carrying out the precognitions would benefit from clarity on this point.
Sharing of the 'full' application
194. As noted above, the Crown's duty to engage the complainer involves telling the complainer about the contents of the section 275 application and inviting their comments on the accuracy of any allegations within it. OI 13/20 notes that it will not generally be necessary to show the complainer a copy of the application, but that complainers should be advised of its 'full content'. Section 275(3) of the 1995 Act requires that applications must set out:
(a) the evidence sought to be admitted to elicited
(b) the nature of any questioning
(c) the issues at trial to which the evidence is considered relevant
(d) the reasons why the evidence is considered relevant
(e) the inferences which the applicant wishes to draw from the evidence.
195. There was some variation in the views and experiences of those we interviewed regarding how much of the application they shared with the complainer. While a few had shown or read complete applications to the complainer, others tended to summarise the contents. There was some dubiety among those we interviewed as to whether only (a) should be shared, and whether the contents relating to (b) to (e) should be shared in summary only or even at all. There was concern that they would be divulging the trial strategy (of either the Crown or the defence) if too much was shared, and that they might be perceived to be coaching a witness.
196. In contrast, others we interviewed felt there was no reason any part of an application should be held back from the complainer, saying this would be at odds with the complainer's right to information and to participate effectively in proceedings.
197. Despite OI 13/20 stating that complainers should be advised of the 'full content' of the application, it appears inconsistent practice has emerged. Those who are advising complainers of applications and their contents would benefit from further clarity on how this should be handled.
Writing to complainers post-precognition
198. Following the precognition, OI 13/20 states that if time permits, the precognoscer should write to the complainer with a short note of their understanding of what the complainer said and what will be done with the information provided. The complainer should be advised to contact the precognoscer urgently if they disagree with anything noted. The OI also states that this step should only be taken if the complainer confirms during the precognition that they are happy to be written to.
199. It was clear from our interviews and our case review that this step rarely happens. On only two of the 19 (11%) occasions in Phase 2 of our case review were the complainers written to following a precognition.
200. From discussions with COPFS staff, we noted that awareness of this aspect of OI 13/20 appeared low, and it did not appear that case preparers were asking complainers whether they would like to be sent a written summary of the meeting. Among those case preparers who were aware of this aspect of the operational instruction, many said there was simply insufficient time to write to complainers. This was due to the tight timescales in which they may become aware of applications and require to carry out and finalise the precognition. Some case preparers cited delays of up to several days in having letters to complainers printed by an office-based team while they worked from home, making this step impossible to achieve given the timescales. However, they appeared to have given no consideration to emailing the complainer instead, despite this being expressly provided for in OI 13/20. Several case preparers also expressed reservations about sending letters containing often sensitive details of the precognition in the post and were therefore choosing not to write to complainers.
201. Some case preparers felt that they complied with the spirit of this aspect of OI 13/20 by reading back to complainers their comments during the precognition itself, ensuring that they had taken an accurate record. While this approach is to be welcomed, it may not provide the complainer with sufficient time to consider the section 275 application and their response in more detail, particularly where the precognition has taken place by phone during the initial contact by the case preparer.
202. While some complainers may not wish to be written to and we understand that case preparers are often required to conduct precognitions in very short timescales, our impression is that because writing to complainers post-precognition is not achievable in some or even many cases, consideration is therefore not being given to it even in cases where it is possible. For example, in cases where an early application is made by the Crown, it is entirely feasible for the complainer to be written to following a precognition. Case preparers should be reminded of this aspect in OI 13/20 and should have sufficient time allocated for them to complete this step. This is an area where a checklist of the steps to be taken under OI 13/20 would serve as a useful aide-memoire (as noted at paragraph 159).
Advising complainer of likely outcome
203. OI 13/20 states that complainers should be advised of the Crown's view on the likely outcome of the section 275 application. It is expected that the advocate depute who is to conduct the preliminary hearing will provide a view on the likely outcome and this will be passed on to the complainer by the case preparer during the precognition. OI 13/20 emphasises that the complainer must be advised that the outcome cannot be guaranteed as the decision as to whether the application should be granted is one for the court. Nevertheless, the advocate depute should indicate whether the application will be opposed in full or in part by the Crown, or whether it will be unopposed. The advocate depute should also indicate whether it is likely the court will grant or refuse all of the application, or grant or refuse only parts of it.
204. The requirement to advise complainers of the Crown's view on the likely outcome of applications was only added to the operational instruction in August 2021 and therefore did not apply to many of the cases we reviewed at Phase 2 as the precognitions had already taken place. Nonetheless, even on the three occasions where the precognition took place after August 2021, the policy was not followed and complainers were not advised of the likely outcome.
205. Our case review findings were largely echoed in our interviews. While we heard that some complainers were being advised of the likely outcome of applications, this was not happening routinely and awareness of this aspect of OI 13/20 was low. We heard that some advocate deputes did not share their view on the likely outcome with case preparers. One advocate depute told us she would let the case preparer know whether the Crown would oppose an application, but would not give a view on the likely outcome. One challenge that advocate deputes may face when forming a view is that their view may change depending on the complainer's position on the facts in the application and their attitude towards it, which will only be known post-precognition.
206. In the absence of a view on the likely outcome from an advocate depute, a small number of case preparers we spoke to suggested they would pass on their own view to the complainer. This was of concern, as we also heard during our interviews that case preparers were sometimes not aware of the actual outcome of applications in their cases. This meant they were not necessarily building up a detailed knowledge of what is likely to be granted or refused by the court, in contrast to advocate deputes who will have extensive personal experience of arguing applications and hearing the reasons for the court's decision making.
207. Even where advocate deputes do advise case preparers of the likely outcome of the application, we heard that some case preparers are reluctant to pass this on to complainers. They were concerned about misleading the complainer in the event that the court took a different view of the application. There appeared to be a lack of confidence in their own ability to convey to the complainer that it is the Crown's view on the likely outcome, and that the court may take a different view. This is despite the OI being particularly detailed on this point and offering various forms of words that the case preparer can use depending on the Crown's view of the application. This failure to follow the policy routinely and a lack of confidence in conveying nuanced messages to complainers highlights the need for more operationally-focused training on managing section 275 applications, in addition to the existing training which primarily focuses on the law (see paragraph 71).
Advising complainer of actual outcome
208. Following a preliminary hearing, OI 13/20 states that complainers must be advised of the actual outcome of any section 275 application. This requirement has featured in OI 13/20 since its second iteration in November 2020 and therefore should be more well-established in practice.
209. In Phase 2 of our case review, the requirement was in effect for 26 occasions on which the complainer was precognosced about a section 275 application. However, in only 12 of those 26 (46%) occasions was the complainer informed of the outcome.
210. Moreover, it was clear from our interviews with COPFS staff that complainers are not routinely being advised of the court's decision. There appeared to be a range of reasons for this, including that there was a lack of awareness among some staff that advising the complainer of the outcome of the application was required. There was also a lack of clarity regarding who is responsible for notifying the complainer of the outcome. The operational instruction does not specify who should carry out this role, and views differed among those we interviewed. Some thought it should be the role of the case preparer given that it is case preparer who has previously engaged with the complainer regarding the section 275 application. Others thought it should be the role of VIA, given that VIA is responsible for updating the complainer on other developments in their case such as the scheduling of trial dates or the outcome of vulnerable witness applications. The lack of clarity regarding who is responsible for notifying the complainer of the outcome of a section 275 application means that there is no ownership of this requirement, with staff often assuming it is done by others.
211. There were also some practical challenges in ensuring that this requirement was fulfilled. For example, some case preparers said that they were not notified of the outcome of section 275 applications and were therefore unable to advise the complainer. This included not having access to the electronic files where the information might be stored. There were also delays in case preparers being told the outcome. Others said that there was sometimes poor recording of the outcome and the reasons for the court's decision in the reports of preliminary hearings or in court minutes, meaning it was difficult to work out what the outcome had been (we also found this to be an issue in some of the cases we reviewed). Two recent changes should have addressed some of these practical challenges. The first was that the post-preliminary hearing report, completed by a member of COPFS staff, must now specify the outcome of section 275 applications, and this report should be sent to case preparers. The second was that the Lodging and Indicting Team must now record the outcome of section 275 applications on the case management system. Despite these recent changes, however, some case preparers still seemed unsighted on the outcome of applications.
212. A small number of staff did not appear to appreciate why the complainer should be told the outcome and felt the complainer would get in touch with the Crown if she wanted to know. A better understanding of why the Crown has a duty to engage with complainers, arising from the complainer's right to information and to participate effectively in proceedings, as well as a more trauma-informed approach to prosecuting cases, would have assisted in this regard.
213. We heard that COPFS is developing minimum standards for various aspects of the process for investigating and prosecuting sexual crime, which we welcome. This may include minimum standards for preliminary hearings and for post-preliminary hearings. Such standards could usefully include instructions for notifying complainers of the outcome of section 275 applications and setting out who is responsible for this task.
COPFS should clarify who is responsible for notifying complainers of the outcome of section 275 applications and should ensure compliance with this requirement. In addition, COPFS should remind its staff that they are required to advise complainers of the likely outcome of section 275 applications.
Overall assessment of engagement with complainer
214. We sought to make an overall assessment of how well the Crown engaged with complainers regarding section 275 applications. Where a complainer was the subject of more than one application and was contacted by the Crown on multiple occasions, we have based our assessment on all of the occasions on which they were contacted. Our assessment took account of the relevant law and policy at the time the section 275 applications were dealt with, including the requirements of RR and the relevant Crown policy. We assessed the engagement as either good, reasonable or unsatisfactory:
- good – the requirements of RR were fulfilled and the relevant policy was followed in full
- reasonable – the requirements of RR were fulfilled and the relevant policy was mostly followed but there was scope for further improvement
- unsatisfactory – either the requirements of RR were not fulfilled or key elements of the relevant policy were not followed.
215. We assessed the engagement with 21 of the 26 complainers. One complainer had died, and applications in respect of the remaining four complainers were dealt with prior to RR and therefore the new requirements were not applicable.
216. We assessed the engagement regarding section 275 applications to have been good for nine (43%) of the 21 complainers. With the exception of one complainer who refused to engage despite concerted efforts by COPFS, these complainers were informed of the applications, precognosced on their contents and were advised of the outcome. The way in which the engagement was carried out tended to be complainer-led and, in some cases, additional support was offered or arranged.
217. We assessed engagement as being reasonable for eight (38%) complainers. A key issue for these complainers was that most were not informed of the outcome of the application. One complainer was not advised of an appeal regarding a section 275 application in her case, albeit the engagement was otherwise good.
218. We considered the engagement to have been unsatisfactory in respect of four (19%) complainers. This was generally because the complainer had not been told of the application or precognosced on its contents. For one 16-year-old complainer, we assessed the engagement as unsatisfactory as it did not appear that any consideration had been given to her age when advising her of an application relating to sensitive matters, she was not advised of the outcome, nor was she advised of a second application which was an amended version of the first.
219. In Phase 1 of our case review, we found that 62 (36%) complainers were the subject of more than one section 275 application:
- 54 complainers were the subject of two applications
- six complainers were the subject of three applications
- one complainer was the subject of four applications
- one complainer was the subject of five applications.
220. Our case review shows that it is not unusual for more than one application to be made about the same complainer. This may happen for a range of reasons, depending on the circumstances of the case. The most common scenario is that both the Crown and defence make an application about the complainer. Sometimes, a case involves more than one accused, and each accused makes an application about the complainer. We also came across examples where repeat applications were made by the same party about the same complainer – for example, in one case, the defence lodged a second application after the first was refused.
221. Where there are multiple applications about the same complainer, the complainer would ideally be contacted once to discuss all of the applications. However, this rarely happens in practice. Applications are lodged at different times and the Crown generally makes contact with the complainer shortly after each application is lodged, rather than waiting to see if any further applications might be made. This approach seeks to maximise the time available to make contact with the complainer and seek their views. However, a consequence of this approach is that complainers may be contacted about section 275 applications on multiple occasions. For example, a depute told us about a case when she made contact with the complainer about a Crown application, and then made contact again when a defence application was lodged. However, following the preliminary hearing, an amended defence application was lodged, requiring the complainer to be contacted and precognosced for a third time. The depute described the complainer as becoming more upset with each contact and was concerned the complainer would disengage from the justice process.
222. In this case, as in many others, there was little the Crown could have done to avoid contacting the complainer on multiple occasions. The timing of the lodging of the defence applications was outwith its control. The key issue for Crown personnel is to be alert to the possibility of additional applications and, where repeat precognitions are required, to handle these sensitively and ensure the complainer has the necessary support. In the case described above, the depute ensured that following the third precognition, the complainer was provided with reassurance about the justice process and offered additional support.
Link between VIA and case preparers
223. To promote consistency in contact with complainers, a dedicated VIA officer is allocated to each High Court sexual crime case. The VIA officer maintains a record (known as the VIA minute sheet) of all contact with complainers and is responsible for providing information about the justice process, updating complainers on key developments in their case and signposting them to support services. Complainers in High Court sexual crime cases are offered the opportunity to be contacted by VIA with an update on their case every eight weeks, or at more or less frequent intervals according to their needs. Case preparers will also make contact with complainers when needed however, including in relation to section 275 applications.
224. While some case preparers let VIA know that they have been in touch with a complainer about a section 275 application, either by copying VIA into correspondence or by updating the minute sheet, many do not. This means the dedicated VIA officer is often unsighted on the fact a section 275 application has been made and that the case preparer has been in touch with the complainer. They may also be unsighted on the impact this has had on the complainer. This is unhelpful where, for example, the complainer contacts VIA with follow-up questions about the section 275 application, or where VIA contacts the complainer about other matters but is not aware that a precognition with a case preparer has just taken place. In the 123 cases we reviewed at Phase 1, we rarely found reference to contact relating to section 275 applications on the VIA minute sheet. Because records relating to section 275 applications were often not imported into the case files, VIA officers were not able to easily access information that might inform their discussions with complainers.
225. There is scope to improve the communication between case preparers and VIA, so that dedicated VIA officers are more fully sighted on all communication with the complainer and able to tailor the service they provide as needed. This is particularly important in cases where the complainer has been upset or distressed by the section 275 application and further information or support would be helpful. Consideration should be given to how best to achieve this such as by case preparers copying VIA into relevant correspondence, by updating the VIA minute sheet or by some other means. Recent changes to lodging instructions mean VIA should be made aware when Crown applications are lodged at least, though they may still not be aware of when a precognition takes place or how it went, or of defence applications.
226. There is scope to improve communication with complainers where there is an appeal about a section 275 application. In Phase 2 of our case review, leave to appeal was granted in relation to two defence applications. In relation to one, there appears to have been no communication with the complainer despite there being an instruction to make contact with her. In relation to the second, the case preparer was not even aware of the appeal and therefore had not been in contact with the complainer about it.
Witnesses who are not complainers
227. The protections of section 274 are only afforded to complainers. During our inspection, we heard about other witnesses who appear on dockets and who may be asked similarly sensitive questions about their sexual history or character. Several people we interviewed suggested that the statutory protections should be extended to them, while others were uncertain if a section 275 application was needed to lead evidence about a docket witness's sexual history.
228. Indeed, in our case review, we noted one case where the Crown had made a section 275 application in respect of a witness who was not a complainer but who appeared on a docket. This was despite Crown policy stating that section 275 applications are neither required nor permitted in respect of witnesses who appear in a docket but not the charge. It appears that the application was erroneously made but nevertheless was granted by the court.
229. While witnesses who appear on a docket do not currently enjoy the protections offered by section 274, other rules of evidence continue to apply such as the prohibition of irrelevant and collateral evidence and protection from unfair or oppressive questioning.
Independent legal representation
230. In 2021, the report of a review group led by the Lord Justice Clerk was published on improving the management of sexual offence cases. The report recommended that independent legal representation (ILR) be made available to complainers in connection with section 275 applications and any appeals therefrom. In light of that recommendation, the Scottish Government has recently consulted on such a right to introduce ILR for complainers.
231. While not the focus of our inspection, the issue of ILR came up regularly during our interviews. We heard mixed views, however most said they were either in favour of ILR or could see that that it would have benefits. Many pointed to the Crown's role in representing the public interest, which may or may not align with the complainer's interest. While the Crown is expected post-RR to present to the court complainers' views and attitudes toward an application, these can sometimes conflict with the Crown's own views. In Phase 2 of our case review, in nine of the 26 (35%) occasions on which the complainer was precognosced about an application, we found evidence of there being differing views between the complainer and the Crown. While some advocate deputes said they were comfortable presenting both views to the court, others were less so.
232. Other issues raised in our interviews included:
- the lack of understanding among some complainers that COPFS is not their own advocate whose role is to act in their interests. Some felt this lack of understanding may be perpetuated by the Crown having to seek the complainers' views on section 275 applications and present them to the court
- the Crown not being able to give the complainer legal advice when applications are being considered
- ILR would encourage a greater focus on the rights of complainers and would empower complainers, with one person querying whether a complainer can truly be said to be participating effectively in proceedings if she is not legally represented
- increasing awareness that complainers in other jurisdictions have ILR in connection with sexual history evidence (notably Ireland).
233. Regardless of whether those we interviewed were in favour of ILR, many were concerned about how ILR would work in practice citing issues such as the availability of skilled representatives, how ILR would be achieved during the limited timescales, the cost, disclosure and whether and how ILR would work at trials. Some felt that, based on their experience of precognoscing complainers about section 275 applications, only a few would want ILR.