The Crown Office and Procurator Fiscal Service (COPFS) has made advances in how it manages sexual history and character evidence in trials, but there remains scope for further improvement, states a report published today (Wednesday, October 19, 2022).
It recommends that staff within COPFS have mandatory training supported by updated guidance, and that complainers are kept better informed and involved in developments.
The report from HM Inspectorate of Prosecution in Scotland (IPS) recognises this is a complex area of the law which prosecutors, defence counsel and judges find challenging.
“They, nonetheless, share a strong desire to ensure complainers are not subject to inappropriate or unnecessary intrusions upon their dignity and privacy,” says Laura Paton, HM Chief Inspector of Prosecution in Scotland.
The report assesses the practice of COPFS in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 which regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials and which are designed to protect them from irrelevant and often distressing questioning when giving evidence.
Section 274 is a general rule that evidence or questioning of this nature is not admissible in sexual offences cases. If the prosecution and defence want to lead such evidence, they must make a section 275 application to the court which should detail the information expected to be made known and why it is relevant to the case.
IPS makes nine recommendations, eight of which are for COPFS and one which is directed at the Scottish Government. When implemented, they will support improvements to the way in which COPFS engages with complainers and how it makes and responds to section 275 applications.
Ms Paton commends COPFS for responding promptly to developments in case law which have led to a shift in practice regarding how section 275 applications are managed. She also notes that COPFS has already begun to address the report’s recommendations.
“We found the quality of Crown applications to be generally good, and they usually opposed applications made by the defence when it was appropriate to so do. However, there remains scope for further improvement,” she said. “The Crown has already begun to address the report’s recommendations by publishing new guidance, but more work is needed to make sure policies and guidance are effectively implemented.”
COPFS is required to notify complainers of section 275 applications and
precognosce them on the application’s contents. This must often be done in a very short timeframe, meaning complainers can feel under pressure to give their views quickly.
Ms Paton said: “Complainers are now regularly told about section 275 applications, asked their views on the applications’ contents, and those views are presented by the Crown to the court. However, more can be done to ensure complainers are spoken to about section 275 applications in a sensitive, trauma-informed and complainer-led way.”
The inspection also found there was scope for the Crown to draft and lodge section 275 applications at an earlier stage, and for the Crown to improve its record keeping.
This inspection arose from developments in case law regarding sexual history and character evidence and a report on the issue by the Equality and Human Rights Commission. Following discussions with the then Lord Advocate, James Woolfe, the issue was referred to IPS for inspection.
The inspection focused mainly on applications to the High Court, where the majority are made, but also considered applications in the Sheriff Court system.
The IPS inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 is available to download from our Publications section
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