Scotland's rape laws risk breaching ECHR say top lawyers
He told The Herald that victims had told lies about matters relating to the case yet the defence had been stopped from putting that situation to the jury.
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"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".
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.
Criminal defence advocate Thomas Leonard Ross KC (Image: Ryan McNamara) 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.
They 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.
Now it has emerged that the Faculty of Advocates and the Law Society of Scotland have also raised concerns, arguing the way rules allowing only evidence that is only "relevant" to the charge to be heard have been too narrowly interpreted in two recent cases undermining the accused rights to a fair trial and hence breaching Article 6 of the European Convention of Human Rights.
Roddy Dunlop KC and Claire Mitchell KC were responsible for the Faculty's input and David Welsh and Stuart Munro for the the Law Society of Scotland's.
Dean of the Faculty of Advocates Roddy Dunlop KC (Image: Contributed) The parties are referred to as "interveners" and the arguments were made in a submission to the Supreme Court in connection with the cases of Andrew Keir and David Daly, convicted of rape in October and December 2022 respectively.
Both lost appeals against their convictions in Scotland and have taken their fight to the Supreme Court.
Their cases were heard in the Supreme Court last year, and the court is still awaiting judgment in both cases.
In its submission to the Supreme Court, the Faculty of Advocates and the Law Society of Scotland urged the court to find that the "the balance has become so skewed as to involve a real risk of breach of Article 6" in both Keir's and Daly's cases.
It argued that by preventing certain evidence which would favour the defence being heard, the court had undermined the accused ability to test the prosecution's case and allow the jury to understand the full context of the events at the centre of the trial.
It stated that the "interveners accept and support the basic proposition that a version of the statutory scheme in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 is appropriate and necessary."
It added: "It is vital that complainers are able to give evidence free from intrusive or inappropriate questions which are not relevant to the issues relevant to the jury's consideration, and are not put off from reporting crimes because of a fear that they will be subject to humiliation before a jury."
However they went on to question that the issue of what was regarded as "relevant" evidence was being understood too restrictively.
"The approach of the courts has been to infringe on an area into which Parliament has chosen to legislate," the submission said.
"The overall effect of the foregoing creates a risk of the accused being denied a proper opportunity to present his defence at trial, with the consequence that the procedure is so unfair as to be incompatible with Article 6 ECHR."
It added: "The overarching conclusion that the interveners invite this court to reach in these appeals is that the interpretation by the Scottish courts of the statutory definition of rape – and therefore the scope of relevant evidence for a rape trial – has gone so wrong that it has upset the balance of fairness between a complainer and an accused.
"The interveners respectfully invite this court to determine that the balance has become so skewed as to involve a real risk of breach of Article 6."
It concluded: "The interveners, for the reasons set out above, submit that the overly-restrictive interpretation of relevancy for the purposes of sexual offences has resulted in an undermining of the statutory scheme. The effect of that undermining is, in effect, to remove from an accused the ability properly to (i) test the case made against him, and (ii) place before the jury the full context in which the actions took place.
"The overall effect, therefore, is to create a situation in which the procedure is potentially (and dependent on the precise facts of the case) unfair as to amount to a breach of the accused's Article 6 right to a fair trial. The State is under an obligation not only to protect the complainer (which is an important factor), but is also under an obligation to make sure those protections do not undermine the fairness of the proceedings in relation to the accused. The balance at the moment has not been struck fairly for the accused who is put at a distinct disadvantage in a trial when accused of a sexual offence."
Reflecting on the submission Stuart Munro, convener of the Law Society's Criminal Law Committee told The Herald last night: "It is widely accepted that cases involving allegations of sexual violence require special rules to limit the admissibility of evidence about a complainer's character or sexual history.
"It is vital that complainers are able to give evidence free from intrusive or inappropriate questions which are not relevant to the issues before the jury, and are not deterred from reporting crimes because of a fear that will happen.
"However, a very careful balance has to be struck to ensure that those accused of crime are able to advance their defence and have a fair trial. We are concerned that some recent decisions of the Scottish courts may have resulted in accused people not being able to fully test the case against them and created a situation where juries may be unaware of the full context in which events are said to have taken place. The Law Society and the Faculty of Advocates recently intervened to highlight these concerns in a Supreme Court appeal, and we are now awaiting the court's decision."
A spokeswoman for the Scottish Courts and Tribunals Service said it would be inappropriate for the Judicial Office to comment on any ongoing proceedings.
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"The approach of the courts has been to infringe on an area into which Parliament has chosen to legislate," the submission said. "The overall effect of the foregoing creates a risk of the accused being denied a proper opportunity to present his defence at trial, with the consequence that the procedure is so unfair as to be incompatible with Article 6 ECHR." It added: "The overarching conclusion that the interveners invite this court to reach in these appeals is that the interpretation by the Scottish courts of the statutory definition of rape – and therefore the scope of relevant evidence for a rape trial – has gone so wrong that it has upset the balance of fairness between a complainer and an accused. "The interveners respectfully invite this court to determine that the balance has become so skewed as to involve a real risk of breach of Article 6." It concluded: "The interveners, for the reasons set out above, submit that the overly-restrictive interpretation of relevancy for the purposes of sexual offences has resulted in an undermining of the statutory scheme. The effect of that undermining is, in effect, to remove from an accused the ability properly to (i) test the case made against him, and (ii) place before the jury the full context in which the actions took place. "The overall effect, therefore, is to create a situation in which the procedure is potentially (and dependent on the precise facts of the case) unfair as to amount to a breach of the accused's Article 6 right to a fair trial. The State is under an obligation not only to protect the complainer (which is an important factor), but is also under an obligation to make sure those protections do not undermine the fairness of the proceedings in relation to the accused. 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