3 Responding to case law and supporting staff
52. During our inspection, we considered how COPFS had responded to recent case law and the court's clarification of its role in respect of section 275 applications. We also considered how well COPFS supports its staff to manage section 275 applications appropriately. This included consideration of the policy, guidance and training available to support staff in their decision making and the extent to which staff understand the issues and are aware of their role and what is expected of them.
Responsiveness to developments in case law
53. In recent years, a series of cases have noted concerns about the manner in which complainers have been questioned about their sexual history and character at trial, have sought to clarify the import of sections 274 and 275 and have set out the correct approach to be taken to section 275 applications. This recent case law has prompted COPFS to revise its operational instructions and to enhance the training offered to staff in respect of sections 274 and 275.
54. In Donegan v HMA, the court noted that the complainer was 'subjected to a lengthy, unjustified and sometimes insulting cross-examination' and expressed surprise that the prosecutor did not object. Citing a desire to improve the experience of those giving evidence, the court reminded prosecutors, defence counsel and judges of their role in keeping the examination of a witness within proper and reasonable bounds. In response, COPFS issued Operational Instruction 2 of 2019 (OI 2/19) on the protection of witnesses from unfair or oppressive questioning. The instruction reminded prosecutors of their responsibility to object to questioning of witnesses by the defence where cross-examination is abusive or aggressive.
55. In HMA v JG, it was stated that while the court itself ought to notice deficiencies in defence section 275 applications and take appropriate action, there was also an obligation on the Crown to draw the court's attention to any obvious failure to comply with the statutory requirements. In Macdonald v HMA, the Appeal Court expressed various concerns about the manner in which the trial had been conducted, including deficiencies in determining applications and the questions that were put to the complainer. In relation to the Crown, the Appeal Court highlighted the Crown's duty to oppose defence applications which seek to admit evidence which is inadmissible at common law or under section 274. In response to these cases, COPFS issued Operational Instruction 13 of 2020 (OI 13/20) in June 2020 on protecting witnesses in sexual offence cases. Addressed to legal staff and case preparers, this instruction reminded staff of the importance of adhering to both the common law rules of evidence and sections 274 and 275 to ensure that trials are properly focused and that complainers are not subject to intrusive or inappropriate questioning.
56. OI 13/20 was updated in November 2020 to take account of further case law, including CH v HMA and RR v HMA. It reminds staff again of the need to first assess the admissibility of evidence at common law before considering admissibility under sections 274 and 275, and of the need to apply those statutory requirements robustly. More significantly, the updated instruction also advised staff of the outcome of RR v HMA, in which the court stated that it is the duty of the Crown to ascertain the complainer's position in relation to a section 275 application and to present that position to the court. This second version of OI 13/20 provides guidance to staff on how this duty should be fulfilled and advises them of new forms of written record issued by SCTS. The new forms required the Crown to address questions regarding the complainer's view on section 275 applications.
57. Operational instructions were developed or revised and published promptly in response to case law developments. The significance of the judgments and their impact on the Crown's approach to sections 274 and 275 were communicated quickly and clearly to staff. In our case review, we found evidence of immediate efforts being made to comply with the court's ruling in RR even in the brief period between the judgment and the updated instruction being published. Staff sought to fulfil their duty to engage with the complainer not only in applications made after RR, but also in respect of applications that had previously been drafted or even granted. This led to some Crown applications being withdrawn and revised, and defence applications being reconsidered by the courts.
58. OI 13/20 was further updated in February 2021 and August 2021, including in response to feedback from organisations that support complainers in sexual offence cases which we welcome.
59. A further operational instruction regarding section 275 applications was published in March 2021 after the Crown reassessed its practice in relation to the leading of docket evidence. It considered that to lead evidence of sexual matters in a docket relating to a complainer who features in a charge engages section 274 (because the evidence relates to sexual behaviour which is not the subject matter of the charge). COPFS therefore published Operational Instruction 2 of 2021 (OI 2/21) requiring that, in all cases where a complainer features in both a charge and a docket, a section 275 application must be lodged by the Crown to cover the sexual matters in the docket. Such applications had not previously been made. OI 2/21 applied with immediate effect, prompting COPFS to review all ongoing cases and to make applications where necessary, even where the applications might already be late. We found evidence in our case review of immediate steps being taken to identify all relevant cases and to make applications and seek the views of complainers on their contents.
60. In our interviews with COPFS staff, we asked how well policy and guidance on sections 274 and 275 support them to carry out their role effectively. Staff were generally aware of OI 13/20, but less aware of OIs 2/19 and 2/21. Even where general awareness of OI 13/20 was good, staff sometimes lacked awareness of specific aspects of the instruction, particularly procedural requirements that were added to later versions of OI 13/20. This could be a result of four versions of OI 13/20 being published in a 17-month period and staff not being alert to specific changes.
61. While staff said the operational instructions were useful, some felt OI 13/20 discussed the case law and some procedural matters, but they would welcome more operationally focused guidance that sets out who is responsible for what, including guidance for specific roles such as indicters. OI 13/20 is addressed to legal staff and case preparers, but those working in Victim Information and Advice (VIA) wondered if they have any role in relation to section 275 applications and whether simpler, less complex information about sections 274 and 275 could be made available to them should they need it.
62. When looking for guidance on sexual history and character evidence, staff said their primary source of information was Chapter 9 of the Crown's Sexual Offences Handbook. The handbook is intended to be the central repository for all guidance on prosecuting sexual crime, with Chapter 9 focusing on sexual history and character evidence. However, we found that Chapter 9 had not been updated since 2020. It makes no reference to key developments in case law or the latest operational instructions, and contains outdated styles of applications. We were advised prior to our inspection that Chapter 9 was being revised to take account of the latest developments, but it had still not been published at the time of writing. Some staff we spoke to were under the mistaken impression that the handbook available on the COPFS intranet was the updated version.
63. We have previously expressed concern about time lapses in updating the handbook and removing out of date material and would reiterate those comments here. While we appreciate that updating a comprehensive handbook takes time and resources, in an area that has seen significant developments in the law and the Crown's approach, there is a risk that staff will mistakenly refer to and apply outdated law and practices. Other sources of guidance, such as a manual for advocate deputes and preliminary hearing handbook, also appeared to contain guidance on section 275 applications that was out of date.
64. COPFS does make considerable efforts to ensure staff are kept abreast of the latest developments. Staff working in Knowledge Bank and the appeals and policy teams work together to monitor developments and disseminate information to staff via the intranet, bulletins and emails. These efforts are welcome, but rely on staff self-briefing or being briefed by their supervisors, and then recalling key developments when needed. An up-to-date central repository for all relevant information, as the handbook is intended to be, is essential to ensuring staff have quick and easy access to the latest guidance.
COPFS should urgently publish a revised Chapter 9 of the Sexual Offences Handbook to provide a single, easily accessible and up-to-date repository for all policy and guidance on managing section 275 applications.
65. Other external sources of information on sexual history and character evidence, such as the Preliminary Hearing Bench Book and the Jury Manual, were well known to and used by advocate deputes and other senior staff. Awareness of them was low amongst other staff however and they were not linked to in relevant COPFS materials, despite them being excellent sources of case law and information on section 275 applications.
66. As noted above, Chapter 9 of the Sexual Offences Handbook includes styles, or templates, of applications that are out of date. COPFS staff hugely appreciate styles that they can adapt to suit the circumstances of a particular case. They highlighted the need for a new bank of approved styles that reflect the latest developments and which can be made available to all staff and updated when required. Currently, staff are storing and sharing previous applications they have drafted or seen which, unless anonymised, may risk personal data being shared unnecessarily. We understand that new styles which are more relevant to current practice will be included in the revised Chapter 9, which staff would welcome.
67. As well as issuing operational instructions to staff regarding developments in case law, COPFS introduced a training course focused on sections 274 and 275. Previously, issues relating to sexual history and character evidence may have been addressed during a broader course on prosecuting sexual crime, but an additional, dedicated course was thought necessary.
68. The training course was developed by staff at the Scottish Prosecution College and was first delivered in June 2021. It is a half-day session covering issues such as:
- the common law rules on admissibility of evidence
- the prohibitions on sexual history and character evidence in section 274
- the requirements of section 275
- the identification of common scenarios in which the need for a section 275 application may arise
- anticipating and responding to defence applications.
69. We were able to observe a training course delivered in early 2022. The course we observed featured an input from an experienced advocate depute who provided insights into current practice in the High Court and who answered questions on best practice. The course was attended by a range of staff, including deputes working on cases in the High Court and Sheriff Courts, solemn legal mangers, indicters and an Assistant Procurator Fiscal. Previous attendees had included case preparers and advocate deputes.
70. We interviewed a range of staff involved in making and responding to section 275 applications. We were surprised that many staff seemed unaware of the training, and a surprising number had not yet attended despite section 275 applications being a regular feature of their work. Some staff had a strong desire to attend and felt it would be useful, but felt unable to do so due to pressures of business. At the course we observed, we were pleased to see a number of staff working in the Sheriff Court attending, but were surprised at the low number of High Court staff, particularly case preparers. The training needs of staff should be identified during performance reviews and incorporated into training plans. We heard that the course was only delivered twice in 2021, but note that its delivery has been accelerated in 2022 with four courses delivered at the time of writing and another two scheduled.
71. Those we interviewed who had attended the training course told us they found it useful and informative. Some said that while they welcomed hearing about the law on sexual history and character evidence, they would like the training to have a more operational focus, with discussion of the practicalities of drafting applications and engaging with complainers. They wondered whether the training could incorporate a 'workshop' element, where staff work on case studies and explore the issues in a more interactive way. In particular, those who precognosce complainers on the content of section 275 applications said they wanted to know more about trauma-informed practice, how to better manage difficult conversations with complainers and how to support complainers who may become distressed or upset. Even VIA staff, who engage with complainers most often, told us they would benefit from such training.
72. Some staff told us that they had learned about section 275 applications 'on the job', by learning from colleagues and participating in team discussions. This approach is, however, unsustainable when so many staff work from home and around half of case preparers working on High Court sexual crime cases have less than two years' experience. These staff have been appointed during the pandemic and some were external applicants without prior knowledge of the criminal justice system. Given their lack of experience, they will rely more on their managers and on clear guidance and formal training than ever before. Some new staff we spoke to said they had never seen a colleague conduct an in-person precognition, or attended a court. They felt they would benefit from observing a preliminary hearing at which a section 275 application is heard.
73. We welcome the dedicated training course COPFS has introduced on sexual history and character evidence. We encourage COPFS to consider the feedback we heard from those who had attended and to continue to seek and act upon feedback from staff to ensure training meets their needs.
74. During our inspection, we regularly heard that the law around sexual history and character evidence is complex and challenging, even for experienced prosecutors. Even members of the judiciary we interviewed said sections 274 and 275 tend to be some of the most complex matters they encounter. Given this complexity, and given the desire to ensure that complainers in sexual offence cases are not subject to inappropriate or unnecessary intrusions upon their dignity and privacy during questioning, we consider that training on sections 274 and 275 should be mandatory for all personnel who are likely to regularly make or respond to applications during the course of their work. Mandatory training will help the Crown to ensure that the statutory requirements relating to sexual history and character evidence are adhered to and that its duty to engage complainers about section 275 applications is fulfilled. Through training, staff should also be supported to engage with complainers in a trauma-informed way. We understand that COPFS is exploring how best to embed trauma-informed practice in its work, linked to the forthcoming knowledge and skills framework for those working in the justice sector in Scotland.
Dedicated training on sexual history and character evidence should be mandatory for all COPFS personnel who are likely to regularly make or respond to section 275 applications in the course of their work.
75. The dedicated training course on sexual history and character evidence is open to a range of COPFS personnel. We noted that some advocate deputes had attended. We also heard that advocate deputes benefit from regular seminars on a range of topics, including sections 274 and 275, and that new advocate deputes have received training on section 275 applications during their induction. This focus on section 275 applications is welcome, however there may be scope to better align the training provision for advocate deputes to that provided to other staff, ensuring that advocate deputes and those involved in the preparation of cases have a consistent approach and a shared understanding and expectation of each other's roles.
Understanding and awareness
76. Operational instructions are intended to be a means of alerting relevant staff to updated policy or guidance. Developed and published by the COPFS policy team in consultation with others, we heard that operational instructions are intended to be high level and not overly prescriptive, leaving managers to direct practice within teams and define who is responsible for what. While this approach is acceptable in theory, we were concerned that in the context of managing section 275 applications, it has resulted in a lack of clarity regarding some issues, unnecessary variations in practice and, on occasion, staff choosing not to follow the operational instruction. This raises a broader issue about how COPFS ensures policy and guidance are effectively implemented. This will rely on the policy and guidance being clear, accessible and consistent; effective awareness raising of and training on policy changes; supervisory and peer support and feedback for staff implementing changes; and monitoring implementation through, for example, data analysis, audit and quality assurance. While some of these were in place to support developments in managing section 275 applications, COPFS should consider what more it can do to ensure policy and guidance is followed in practice.
77. For advocate deputes, we heard that there is useful peer support in place, including through mentoring for new or less experienced advocate deputes. We also heard that advocate deputes will regularly circulate information about decisions on section 275 applications amongst themselves, so that any learning about the courts' evolving interpretation of the law is shared. There may be scope to cascade this information to others involved in the preparation of cases for court, including indicters, solemn legal managers and case preparers.