UNISONScotland www
This is our archive website that is no longer being updated.
For the new website please go to
Click here
Home News About us Join Us Contacts Help Resources Learning Links UNISON UK



Response to

Cross-Examination in Rape and Sexual Offence Trials
A Pre-Legislation Consultation Document

(See www.scotland.gov.uk/consultations/justice/rtb-10.asp for the questionnaire)

Question 1
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 Boundaries'.

Question 2
(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 sexual nature.

Question 3

(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 be set?

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.

Question 4
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?


Question 5
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.

Question 6
(a) Do you agree that a Code of Practice should be developed for court-appointed lawyers?


(b) Should it have a statutory basis?


Question 7
(a) How should lawyers to be appointed by the court be identified?

No opinion.

(b) What measures can be taken to ensure a sufficient pool of suitably qualified and experienced lawyers?

No opinion.

Question 8
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?

Yes, strongly.

Question 9
(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 – g.

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.

Question 10
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.

Question 11
(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?


Question 12
(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?


Question 13.
Should the Crown exemption be retained or abolished?


Question 14
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.

Question 15
(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 on.

(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