Latest news with #CriminalProcedure
The Herald Scotland
3 days ago
- 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.'
Time of India
24-05-2025
- Time of India
HC orders action against cops if they favoured man in civil dispute
Madurai: The Police Standing Order prohibits police from conducting any investigation in cases of a civil nature, has observed, while directing the DGP to initiate an inquiry and take action against the then DIG of police and then ADSP who issued summons to the petitioner for inquiry, if they acted in favour of a man in a civil dispute in Tirunelveli district. Tired of too many ads? go ad free now Petitioner M Rajesh Kumar said there was a civil dispute between him and S Palavesamuthu over a property, and civil suits are pending before the court. Based on Palavesamuthu's complaint to the concerned DIG, he said the then ADSP, who is in charge of crime against women and children, was harassing him by issuing summons to appear for inquiry. He said it is a pure civil dispute which has been given a criminal colour. Palavesamuthu had already filed a complaint in 2011 on the very same allegations, based on which an FIR was registered. Subsequently, the FIR was closed as a mistake of fact. However, since a complaint was lodged again on the same set of allegations and he was being harassed by the officials under the guise of inquiry, he moved the court. Justice B Pugalendhi observed that issuance of summons under Section 91/160 Cr PC arises only after the case is registered. The complaint is of the year 2023, which has been kept pending at the stage of petition inquiry for two years. In the existing code of Criminal Procedure at the relevant point of time, there was no provision for conducting petition inquiry. The PSO No. 562 of Police Standing Order prohibits police from conducting any investigation of a civil nature, or in which the complaint is obviously endeavouring to set the criminal law in motion to support a civil right. The judge observed that the then DIG, along with the then ADSP, entertained a civil matter and harassed the petitioner. Tired of too many ads? go ad free now The counter affidavit filed before the court by the officials reveals that the police acted as an agent of Palavesamuthu in interfering with the civil dispute between him and the petitioner. Considering the manner in which the complaint was entertained, the petitioner was harassed, and he was driven to file this petition to protect his interest. Hence, the judge directed the DGP to conduct an inquiry and take action against the two officials who entertained a complaint against the petitioner, if they acted in favour of Palavesamuthu in a civil dispute.
The Citizen
26-04-2025
- The Citizen
Bloemfontein mother convicted for sexually assaulting minor son
The mother managed to avoid jail time after entering into a plea agreement. A 52-year-old Free State mother has been sentenced to correctional supervision for sexually abusing her minor son over the course of three years. The Bloemfontein Magistrate's Court handed down the five-year sentence on Thursday in terms of Section 276 (1)(h) of the Criminal Procedure act, after the woman pleaded guilty and entered into a plea agreement. Section 276 (1)(h) South African Police Service (Saps) regional spokesperson Captain Loraine Earle told The Citizen that a sentence under these circumstances entails strict supervision and rules regarding movement. 'Movement is limited and time is restricted. [Offenders] are also being restricted on consumption of alcohol,' Earle said. 'In summary, you are not in prison but you are being held inside your residence under strict rules and conditions and are being closely monitored.' ALSO READ: Gqeberha High Court hands down 11 life terms for man who raped six minor boys Disturbing case In a case Saps describes as disturbing, the Bloemfontein resident had reportedly been raping and sexually assaulting her now 16-year-old son several times between January 2020 and December 2023 since he was 12 years old. Earle said the boy had disclosed the abuse to a professional service provider during a consultation session in February 2024. '[This prompted] immediate investigation by Constable Jessica du Preez from the Parkroad Family Violence, Child Protection and Sexual Offences Unit,' Earle added. Mother charged and arrested The mother was then charged with sexual assault and arrested on 25 May 2024, and the boy was placed in the care of his biological father. 'Although bail was initially opposed by the investigating officer, the court granted bail in the amount of R10 000 and the accused was subsequently released.' The mother's details will be entered into the National Register for Sexual Offenders, and she has been declared unsuitable to work with children. NOW READ: Man sentenced to four life terms for raping four young boys
