Thomas Ross KC

Thomas Ross KC said there was widespread concern at the defence bar over the human rights of accused persons but that lawyers fear speaking out in case doing so hampers their career prospects.

“How can it be said that someone has had a fair trial when it’s been proved the complainer lied about something important in the course of the inquiry and that was not allowed to be introduced as evidence?

“There are serious concerns that people are not getting a fair trial when they are not being given the opportunity to provide evidence that might support their innocence,” he said.

He added: “The lawyers who are taking on these rape and sexual assault cases tend to be less experienced, more junior members of the bar. It’s difficult for them to come out and make a claim of this type.

“They have their whole career in front of them. At some point they might want to go for a role as a sheriff or a judge, and they will understandably be concerned that if they speak out or are seen to be publicly critical of the criminal justice system, that will damage their chances.

“But many, many lawyers are raising the matter with me. When you hear a lawyer complaining in court about some decision that has gone against them, 90 per cent of the time it’s this issue. It is a massive concern.”

Under sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 certain types of evidence pertaining to the character of the complainer and their sexual history are generally inadmissible unless the court allows them after an application has been made.

The provisions are intended to protect complainers from inappropriate questioning about their sexual history.

Applications to lead evidence of the kind captured by s.274 must be made at a preliminary stage, before full preparation for the trial has been completed, meaning the defence is frequently at a severe disadvantage.

Mr Ross also pointed out that the scope of the rape shield regime has widened.

“In the 1985 Act the thinking was why should you be allowed to ask the woman about sex with another man or sex with the accused on a different occasion, but in 2002 the scope was extended to include non-sexual behaviour,” he said.

He added: “At the preliminary hearing you might not have all the case papers, and won’t know for sure what the complainer is likely to say in evidence, as it might be a year before the trial.

“The need for an application within a strict time limit made it very difficult for defence lawyers.”

Case law has also widened the ambit of the rules.

“In short, it became extremely difficult to know what you were allowed to ask,” said Mr Ross.

“Every day you were hearing examples of people saying they thought a piece of evidence was relevant but the judge has ruled that it would not be allowed.

“Defendants would be going around with messages, photographs, things they thought would prove them to be innocent, and the judges would not allow them to tell the jury about those pieces of exculpatory evidence.”

A Scottish government spokesperson said: “Everyone has the right to a fair trial and to appeal against a conviction or sentence. There are well-established rules on what evidence can be led in sexual offences trials, and clear routes to challenge how these are applied.”