Leading KC raises concerns over accused rights in rape trials

The Herald Scotland

10 hours ago

However, Mr Ross believes that he should draw attention to the situation for fear of the impact of silence upon the delivery of justice.
"We have reached the stage where the victim has lied about things and the court has not allowed the defence to put that before the jury.
"How can it be said that someone has had a fair trial when it's been proved that the complainer lied about something important in the course of the inquiry and that was not allowed to be introduced as evidence?" he told The Herald.
"There are serious concerns that people are not getting a fair trial when they are not being given the opportunity to provide evidence which might support their innocence".
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% of the time it's this issue. It is a massive concern."
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The situation revolves around what evidence is allowed to be heard in open court before a jury.
Sometimes known as "rape shield" laws, specific provisions to regulate the use of sexual history evidence were first introduced in Scotland by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.
These provisions were later repeated in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.
In response to concerns about their operation, the provisions in the 1995 Act were replaced by new sections 274 and 275 in 2002.
The High Court in Glasgow (Image: PA) The provisions are designed to protect complainers giving evidence from irrelevant, intrusive and often distressing questioning.
Sections 274 and 275 of the 1995 Act were intended to protect complainers in sexual offence trials from inappropriate questioning about their sexual history and wider character and lifestyle when giving evidence in court.
In particular, they were designed to discourage the use of evidence seen as of limited relevance, where the primary purpose of the evidence is to undermine the credibility of the complainer or divert attention from the issues that require to be determined at trial.
There are strict rules over what evidence can be heard in rape trials (Image: Getty Images/iStockphoto) However, Mr Ross said the manner in which the rules have been interpreted by the court has been problematic with debate centring on what evidence is judged to be relevant or not.
An application to lead evidence of the type struck at by Section 274 must be made at a preliminary hearing – almost always before full preparation for the trial had has been completed - putting the defence at a huge disadvantage.
"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 continued: "At the preliminary hearing you might not have all the case papers, 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."
He said further restrictions to rules over the admissibility of evidence had since been made in case law.
"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."
Mr Ross went on to say a number of Scottish rape cases relating to the admissibility of evidence were currently before the Supreme Court having had appeals against conviction dismissed.
A number of Scottish cases are before the Supreme Court for consideration. (Image: Dan Kitwood) In one of the cases the victim alleged that the accused had raped her when she was 13, claiming she became pregnant and given birth to a child.
However, there was no evidence that she had become pregnant or given birth - a matter that the accused wanted to present to the jury.
His lawyer had taken the view that it was extremely unlikely that the trial court would allow such evidence to be presented – and the Scottish appeal court agreed with that assessment and refused his appeal.
Mr Ross said a second case at the Supreme Court revolved around a man convicted of rape following a work night out.
The man was with the woman, whom he supervised, in a pub where both were drinking.
"There was apparently CCTV evidence showing the complainer beckoning the accused into a disabled toilet where they had sex," said Mr Ross.
"They both later left the bar, got a taxi to his house and woke up next morning in bed together."
The woman alleged she was raped.
"He was interviewed by police and explained that events at the pub exactly as they had been captured by the CCTV.
"He was then charged with rape in the disabled pub toilet and rape in the house."
"But the prosecutor became aware that the judge may allow CCTV evidence from the pub, so dropped the pub charge, with the result that the defence was not allowed to lead evidence about what had happened in the pub. His account of what happened in the pub was entirely supported by the CCTV evidence.
"It supported his credibility but he wasn't allowed to put the CCTV evidence before the jury as the court ruled that it wasn't relevant to the charges at his house."
Mr Ross went on to say that he didn't "accept there is a low conviction rate for rape or sexual assault" as there is a lack of relevant data.
He addition he suggested that it was misleading to compare conviction in rape cases rapes to those in other types of crime such as murder.
"In a murder case there might be 15 sources of evidence, from eyewitnesses, DNA, finger prints in murder cases, while in a rape case just there is very often only one source of evidence - namely the person making the complaint.
"So it's entirely unsurprising that there are lower conviction rates for rape than murder."
A spokesperson for Rape Crisis Scotland said: 'We wish Thomas Ross KC would express equal concern about ensuring justice for survivors of sexual violence.
'The conviction for rape cases involving a single complainer is only 24%. The overall conviction rate for all crime is 86%. Too many women are being completely let down by the Scottish criminal justice system.
"We continue to hear from women about how distressing their treatment is at the hands of some defence lawyers.'
Mr Ross responded: "I've met many women who feel completely let by the Scottish criminal justice system. I've met many men who feel completely let down by the criminal justice system too - including men who believe that the court's interpretation of section 275 deprived them of a fair trial.
"With so many people feeling completely let down by the system - maybe its time to have another look at the way it operates."
A spokeswoman for the Scottish Courts and Tribunals Service said it would be inappropriate for the Judicial Office to comment on Mr Ross's personal views.
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.'