The aim of this inspection was to assess Crown Office and Procurator Fiscal Service (COPFS) practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. These provisions regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials, and are designed to protect complainers giving evidence from irrelevant and often distressing questioning.
Following recent developments in case law regarding sexual history and character evidence and the publication of a report on the issue by the Equality and Human Rights Commission, I had discussions with both the then Lord Advocate and the Commission about the possibility of HM Inspectorate of Prosecution in Scotland (IPS) carrying out a review of COPFS practice in this area. In light of those discussions, the Lord Advocate referred the issue to me for inspection. We agreed that an inspection would be timely and in the public interest.
This report presents our findings on how COPFS makes and responds to section 275 applications to lead sexual history or character evidence. It focuses almost entirely on how the Crown manages section 275 applications in High Court cases although brief consideration has also been given to practice in the Sheriff Court. It is worth noting at the outset that this can be a complex area of the law that prosecutors, defence counsel and judges find challenging. They nonetheless share a strong desire to ensure that complainers are not subject to inappropriate or unnecessary intrusions upon their dignity and privacy.
We found that COPFS responded swiftly to developments in case law, issuing new instructions to staff and creating a training course dedicated to sexual history and character evidence. This has led to a significant shift in practice regarding how section 275 applications are managed – 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. We found the quality of Crown section 275 applications to be generally good, and we found that the Crown generally opposed applications made by the defence when it was appropriate to do so. Nonetheless, there remains scope for further improvement.
We have made nine recommendations, eight of which are directed at COPFS and one of which is directed at the Scottish Government. If implemented, the recommendations should support further improvements in the way in which COPFS makes and responds to section 275 applications. Four of the recommendations directly relate to the Crown's duty to engage complainers about section 275 applications.
We understand that some of our concerns may be addressed by ongoing work to update Chapter 9 of the Crown's Sexual Offences Handbook, a key source of guidance for staff. A draft was shared with us shortly prior to this report being finalised. We have recommended its urgent publication as there is a demonstrable need for it. While its publication would be a step forward, we also note that more work will need to be done to support its effective implementation.
A theme that arose during the course of our inspection was the ability – or rather inability – of complainers to 'tell their story' during proceedings. There was a widely held perception that there was now a stricter application of the law around sexual history and character evidence. While restrictions on inappropriate questioning of complainers during trials were welcomed, there was a concern among some we interviewed that complainers are being prevented from telling their story of the incident and that this can be detrimental to the complainer, as well as to the Crown and defence in their efforts to present a case to a jury, and to the jury's understanding of the circumstances of the incident. Previous research has already highlighted that some victim-survivors feel they are unable to tell their story at trial. It would be unfortunate if attempts to safeguard them from inappropriate and intrusive questioning were to compound this feeling and contribute to dissatisfaction with the justice process. This is a broader issue relating to complainers' experiences of the justice process and is not specific to COPFS. It would merit further consideration by those in the criminal justice system, including whether there is a need to better manage complainers' expectations around the purpose of a trial and whether some other mechanism is needed to ensure they feel heard.
We had originally intended to publish this report in Spring 2022, however the progress of our inspection has been significantly delayed by difficulties identifying and tracing key documents. We are grateful to Crown staff who assisted us in this task, as well as all of those staff and stakeholders who participated in our interviews, sharing their views and experiences with us.
HM Chief Inspector of Prosecution
13 September 2022