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The Herald Scotland
13 hours ago
- The Herald Scotland
Scotland's rape laws risk breaching ECHR say top lawyers
Earlier this month top criminal defence advocate Thomas Leonard Ross KC raised his concerns that some men accused of rape and sexual assault were not getting a fair trial because of how courts were understanding rules relating to the admissibility of evidence. 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. READ MORE: "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.
The Herald Scotland
05-07-2025
- Politics
- The Herald Scotland
Leading KC raises concerns over accused rights in rape trials
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." READ MORE: 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.'
Yahoo
05-03-2025
- Sport
- Yahoo
What is the law on alcohol at Scottish football and why was it brought in?
The alcohol ban in Scotland could eventually be lifted after being in place for 45 years. The Herald has exclusively revealed Police Scotland are open to discussions about having the law changed and allowing football fans to enjoy a beer inside the stadium. It hasn't been allowed in Scotland since 1980 and many people feel it is time for people to be offered the opportunity of a drink at the game. But why was the ban brought into place in the first place and what does the current law mean for supporters? Why was the ban brought into place? The ban was introduced in response to the riots which followed Celtic's extra time win over Rangers in the 1980 Scottish Cup Final at Hampden. Mounted police charged across the pitch to halt battling fans, who initially entered the field of play to celebrate before fighting broke out. What are the current rules on drinking alcohol at football? The ban is covered in The Criminal Law (Consolidation) (Scotland) Act 1995 which makes it illegal to carry alcohol into a football stadium, to consume alcohol within sight of a football pitch, to enter a football stadium under the influence of alcohol or to drink alcohol, while on 'official' transport to football matches (ie. a supporters' bus). READ MORE Police Scotland 'open to discussions' on lifting football booze ban Scottish football alcohol ban is snobbery and it's time to bin it 'Lifting alcohol football ban would be step in wrong direction' Alcohol can be purchased and consumed in a stadium or ground's hospitality areas - but not while a match is in play. A number of clubs in the league also currently have fanzones outside the ground where alcohol can be purchased. What has the current Scottish Government said? Last September, First Minister John Swinney said: "We have no plans to go down such a route because it's important that we take all necessary steps that we can to ensure that we address the country's relationship with alcohol and that we have a safe and supportive sporting environment for all.' "We don't believe now is the right time to reintroduce alcohol into football. "The fact is that when we were selling alcohol at football matches there were many more problems in terms of crowd behaviour than there is today. "We have made a lot of progress so let's not turn the clock back. Let's keep with that progress, keep it a family game and if people then want to do for a drink after the game then they are free to do so." What could a new law change? An amended law could see football fans allowed to drink in the concourse. Fans in England are allowed to drink at football matches but they are not allowed to take their drinks to their seats, with it sold in plastic so there is less likely to be any damage caused by someone potentially throwing it towards the pitch.
