Which of the four options do you prefer and why?
Option 3, as it offers guaranteed protection to the complainant,
whilst also ensuring a fair trial for the accused. We welcome the
opportunity to participate in this consultation, and welcome the
commitment of the Scottish Executive to improving the legal process
in rape and sexual offence trials. However, we believe that in Scotland
we need to undertake a comprehensive review of our sexual offences
legislation as per the Home Office review Setting the
(a) Do you agree that the rule against personal cross-examination
should cover all cases referred to in section 274 of the Criminal
Procedure (Scotland) Act 1995?
(b) Do you think it should be wider than that?
Yes, it should also cover other cases such as breach of the peace
charges of a sexual nature, breach of the peace charges relating
to stalking and harassment of women, any cases involving the abuse
of children. Charges relating to domestic abuse. Any cases of a
(a) Do you agree that the accused should be told at the first
appearance in court, or when the complaint/indictment is served,
that he will not be permitted personally to cross-examine the complainer
and that it would therefore be in his own interests for him to appoint
a lawyer to represent him?
(b) Do you agree with the procedure suggested?
(c) Do you have any views about the timescales which should
The effects of waiting for the trial on the complainant should
be recognised. The legal process is often described by women as
a second rape. It is a distressing process, which forces women to
relive their experiences. Currently women have long periods to wait,
often with little information. The process should be reduced to
as short a time as is possible. The human rights of the complainant
should be given at least equal weight to those of the accused.
Do you agree that in sexual offence cases the court should have
an automatic power to appoint a lawyer for an accused who dismisses
his lawyer during the trial or within a 14-day period before it?
To what, if any, extent should a lawyer appointed by the court
have responsibility to the accused?
The English example should be followed the lawyer appointed
by the court should have no responsibility to the accused.
(a) Do you agree that a Code of Practice should be developed
for court-appointed lawyers?
(b) Should it have a statutory basis?
(a) How should lawyers to be appointed by the court be identified?
(b) What measures can be taken to ensure a sufficient pool
of suitably qualified and experienced lawyers?
Do you agree with the proposals:
(a) to prohibit an accused in a sexual offence case from taking
a precognition personally; and
(b) to amend the standard bail conditions to include such a prohibition?
(a) Do you agree with the type of approach adopted by the Canadian
Criminal Code to questions of relevance and probative value?
(b) If a similar approach were to be adopted here, what factors
should the court take into account in deciding admissibility?
As per the Canadian Criminal Code, Section 276 (3), point a
The judge should consider the interests of justice; society's
interest in encouraging the reporting of sexual assault offences;
whether there is a reasonable prospect that the evidence will assist
in arriving at a just determination in the case; the need to remove
from the fact-finding process any discriminatory belief or bias;
the risk that evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury; the potential prejudice to the
complainant's personal dignity and right of privacy; the right
of the complainant and of every individual to personal security
and to the full protection and benefit of the law.
Do you agree that evidence of complainer's "bad character"
should only be admitted where:
(a) it is relevant to the issue of whether the complainer is worthy
of belief; and
(b) it is of specific instances of behaviour casting doubt on the
complainer's honesty or showing a motive to fabricate allegations?
Yes. However, we do not agree that the Canadian Code Section 276
(1) goes too far. We do agree that the provision does not go far
enough, in concentrating only on sexual activity, and agree that
this does not take into account the "subtle character attacks"
research has identified as being used to undermine the credibility
of the witness. The legislation must be changed in order to ensure
that this practice is ended.
(a) Should applications for the admission of sexual history and
character evidence be made in writing?
(b) Should the court be required to state its reasons for
admitting such evidence?
(a) Do you consider that there should be a "trial within
a trial" for the purpose of determining whether evidence of
the complainer's sexual history and character is admissible?
On balance, yes, although recognising the additional stress and
distress this may cause the complainant.
(b) If so, should the complainer be a compellable witness
at such a hearing?
Again, on balance, yes.
(c) Should the procedure, if it is adopted, be available
in both solemn and summary cases?
Should the Crown exemption be retained or abolished?
Should consent be a specified defence in sexual offence cases?
In current law, yes. As stated in the consultation "in
no other crime does the consent of the alleged victim play such
a pivotal role", and goes on to make clear that the accused
never requires to prove consent existed. On the contrary, the Crown
will normally have to prove that it was absent. We believe that
we need a new statutory definition of consent, based on that currently
used in Victoria, Australia. The onus should be on the accused to
show what he did to seek and obtain the woman's consent.
(a) Do you agree that the granting of an application to admit
evidence about the complainer's sexual history or character
should result automatically in the disclosure of any previous sexual
offence convictions of the accused?
Yes, we welcome this proposal.
(b) Should disclosure extend to sexual offences with which
the accused has been charged but not convicted?
Yes. These types of offences are notoriously difficult to convict
(c) Should it extend to convictions for crimes of violence?
Yes. Rape and sexual abuse are crimes of violence. Research has
shown clear links between various forms of violence e.g. abuse of
animals and violence against women and children; domestic violence
and child sexual abuse; and so on.
31 January 2000