Call for legal representation for complainers when sexual history evidence is sought
Lawyers have said there is a case for complainers in sexual offences cases to be given their own legal representation when applications are made to lead evidence of bad character or sexual history so they can make submissions on whether such an application should be granted in order to prevent “re-victimisation” of complainers.
The authors of a new report believe that complainers need a lawyer when such applications are made because of the “private and intrusive” nature of the questioning from defence counsel that results from a successful application.
Evidence of sexual history is generally prohibited, under section 274 of the Criminal Procedure (Scotland) Act 1995. Defence lawyers can, however, make an application under s.275 of the act to lead such evidence.
Solicitors Eamon Keane and Tony Convery have written a proposal detailing why complainers should be entitled to independent legal representation in certain circumstances.
The authors stress in their proposal that they are not suggesting a general right to a lawyer for complainers in sexual offence cases. Nor are they suggesting that the independent lawyer be present when evidence is being led at trial in the presence of a judge or jury. A complainer’s lawyer would be present at a s.275 hearing, which in most cases occurs before a trial.
Their proposal, they argue, is consistent with developing case law on article 8 of the European Convention on Human Rights and the Victims and Witnesses (Scotland) Act 2014.
Mr Keane, who is also an academic at Edinburgh Law School, said: “This report contains a moderate proposal for legal representation at section 275 hearings, which we believe is supported by article 8 ECHR case law, and would be in keeping with the procedure which already occurs in cases involving applications for the medical records of complainers.
“Whilst further empirical research in this area is urgently overdue, the case law paints a worrying picture of applications advanced which clearly contravene the common law and statutory scheme. The lack of Crown opposition and effective judicial regulation at first instance is a recurrent feature of these cases. We think our proposal could arguably improve judicial decision making, and improve complainer experience of an especially distressing aspect of the criminal procedure, whilst respecting the adversarial nature of the trial itself.”
Thomas Ross QC told SLN that the report makes a “sensible case” for representation.
He said: “In the first place I congratulate Eamon and Tony on an excellent report, which includes a scholarly analysis of an area of law that even experienced practitioners find challenging. Before reading the report I would probably have taken the view that section 275 applications are so commonly refused that encouragement by complainers is not required, but section 3 (‘Complainers Experience’) makes a sensible case for representation.
“Complainers can become irritable under cross-examination, even when it is being conducted with perfect courtesy and I can easily see that irritability might flow from an entirely expected lack of understanding of the process. If complainers have concerns about their sexual past being explored, or about the relevance of other lines of expected cross-examination, independent advice on those points can only assist the process.”
Mr Ross added: “I would hope that the advice given would include an explanation that a minority of citizens still make false complaints of criminal conduct, sexual conduct included, with severe consequences for the person accused.
“When we know of many examples of people making false allegations, high profile and otherwise, it is in everybody’s interests that every conviction can be demonstrated to be safe. Such a conclusion cannot be reached if cross-examination is restricted to a point where a fair trial for an accused is not possible. I am afraid that many practitioners, familiar with recent case law on the ‘rape shield’ provisions, fear that this is the current direction of travel.”