Scottish Government

Chapter Three: High Court Cases Involving Sexual Charges

Findings From Case Mapping

3.1 This chapter presents the findings of a case mapping exercise conducted in the High Court in Scotland over a 12 month period (1st June 2004 to 31st May 2005). The purpose of the case mapping was to assess:

• The number of cases with sexual charges called to the High Court, and going to trial;
• The proportion of such cases in which s.275 applications were made;
• How often s.275 applications were allowed;
• The relationship between the use of sexual history and character evidence introduced through a s.275 application, and trial outcomes; and,
• The proportion of cases in which a defence of consent was lodged.

3.2 The data from the case mapping exercise was also used as a sampling frame for the identification and selection of a sample of 30 cases for more in-depth analysis of s.275 applications and the use of sexual history and character evidence.

3.3 The first part of this chapter provides an overview of the mapped sexual offence cases called to court. The second part reports data on cases which proceeded to trial. Given the procedural differences between the 2 sets of legislative provisions, in particular concerning when (pre-trial and at trial) and how (written and verbal applications) s.275 applications were made, and the different legislative structure, the baseline data is drawn on mostly in the latter part of the chapter.

Numbers of cases involving sexual charges

3.4 The mapping exercise identified a total of 231 cases involving sexual charges called to the High Court in the 12 month period from 1st June 2004 to 31st May 2005.

Type of sexual charges (mapped cases)

3.5 Rape is the most common charge in sexual offence cases called in the High Court, in that 162 cases (70%) included at least one charge of rape.

Table 3.1 Types of charge(s) in High Court sexual offence cases

(June 2004 to May 2005) mapped cases

3.6 Table 3.1 shows that 67 (29%) of sexual offence cases involved a single charge of rape only; ¹⁴ whereas 95 (41%) involved at least one charge of rape with multiple (sexual and/or non-sexual) charges; and 69 (30%) involved sexual charges other than rape, such as indecent behaviour, sodomy, assault with intent to rape, and age-related statutory sexual offences.

Numbers and sex of complainers and accused (mapped cases)

3.7 Complainers in sexual offence cases called in the High Court are overwhelmingly female. Of the 231 mapped cases: 139 cases involved single female complainers (60%); 58 involved more than one female complainer (25%); 13 involved only male complainers (6%); and 18 involved both male and female complainers (8%). In 3 cases the sex of the complainer was not known.

3.8 Accused persons in sexual offence cases called in the High Court are almost always male. Two hundred and twenty five (97%) cases involved a single male accused. Sexual offence cases with multiple accused persons are relatively rare in Scotland's High Courts: 3 cases involved 2 male accused; one case involved 3 male accused.

3.9 Female accused persons in sexual offences are also extremely rare; there were just 2 cases involving females. In one case, a female accused was charged along with a male with 4 charges of lewd and libidinous practices, 2 age-related statutory sexual offences ¹⁵, and 4 non-sexual charges; in the other case, 2 females were accused of indecent assault.

Proportion of sexual offence cases with s.275 applications (mapped cases)

3.10 One hundred and three (or 45%) of the 231 cases involving a sexual charge called in the High Court, involved a s.275 application to introduce sexual history or character evidence (see Chart 3.1 and Chart 3.2).

3.11 Chapter One outlined the rationale for encouraging pre-trial written s.275 applications, and the procedure for doing so. A stated intention was to allow the court more time to scrutinise the relevance of evidence and the extent to which it may divert attention onto tangential or irrelevant issues. It was not a stated intention to afford the Defence with multiple opportunities for making an application, although the procedures did exceptionally allow the Defence to make an application during the trial in the event of new evidence. The data presented in Table 3.2 shows the timing of when s.275 applications were lodged, although in over half of the cases this information was not recorded in the available data sources. The information in the table refers to the point in the process when the first s.275 application was made (some cases involved more than one application).

3.12 As described in Chapter One, under the 2002 Act, unlike the 1995 Act, the requirement that an application be made to introduce otherwise prohibited evidence extends to the Crown as well as the Defence.

Table 3.2 Point in process when (first) s.275 applications made (June 2004 to May 2005) mapped cases

3.13 As Table 3.3 shows, in the majority of the mapped cases the s.275 application(s) were made by the Defence; most cases involved a single application by the Defence (64), and in a small number (11) a single application was made by the Crown. Ten cases involved more than one application by the Defence, and in 18 cases, separate applications were made by both the Defence and the Crown, some of which involved multiple applications by the Defence.

Table 3.3 Numbers of s.275 applications in sexual offence cases and who made them (June 2004 to May 2005) mapped cases

S.275 applications by charges

3.14 As Table 3.4 shows, there was variation in the proportion of cases involving a s.275 application by the charges involved. Cases involving charges of rape were more likely than not to involve an application.

Table 3.4 Selected charges and whether s.275 applications (June 2004 to May 2005) mapped cases

3.15 Among cases that involve charges other than rape, there is considerable variation in terms of the proportions involving applications.. Almost half (47%) of such cases with charges of indecent assault involved applications, as did 43 percent of such cases involving attempted rape or assault with intent to ravish. On the other hand, s.275 applications were found in very few cases involving incest or sodomy.

3.16 Further analysis of rape cases involving multiple charges also shows variation in the incidence of applications by the nature of the other charges. Cases involving rape combined with indecent assault charges were the most likely to involve an application (applications were made in 73% of the 26 cases) followed by cases involving attempted rape or assault with intent to ravish (applications were made in over half of such cases). In contrast, applications were not made in 5 of the 6 cases involving both rape and sodomy and in 2 of the 3 cases involving rape and incest.

Decisions relating to s.275 applications (mapped cases)

3.17 Applications were rarely refused in full by the court. Almost all (60 out of 64) of the single applications made by the Defence were allowed either fully or in part. Of the 11 Crown only applications, 8 were allowed in full, one was refused by the court and 2 were withdrawn by the Crown.

Table 3.5 Decisions on s.275 applications (in cases with a single application June 2004 to May 2005) mapped cases

(a) these were either withdrawn by the party or considered "unnecessary" by the court.

3.18 Cases containing more than one application show a similarly high rate of success, in that most are allowed either in full or in part. For example, 10 cases involved more than one application made by the Defence only. Of these, 9 cases involved 2 applications, and one case involved 3, making a total of 21 Defence applications in all. Of these, two thirds (14) were allowed.

3.19 As stated above, 18 cases involved separate applications made by both Crown and Defence. Most (15) entailed one application by the Defence and a separate application made by the Crown. All of the Crown applications in these 15 cases were allowed either in full or partially. Thirteen of the Defence applications were allowed either in full or partially, one was refused and one was withdrawn. In one of these cases both the Crown and Defence applications were allowed in full on resubmission at trial having been refused in part during the original preliminary hearing.

3.20 Of the 3 remaining cases which involved applications made by both parties, the Defence submitted 2 separate applications, both of which (in all 3 cases) were allowed either in full or in part. Two of the Crown applications were allowed, and one was withdrawn.

Sexual offence cases proceeding to trial

3.21 Chart 3.1 shows the numbers of sexual offence cases called in the High Court, those proceeding to trial, and whether or not they contained an s.275 application. Of the 231 sexual offence cases called in the 12 month period, just over half (123 or 53%) proceeded to trial and evidence was led. In 89 cases (39%), the accused pled guilty to all or some of the charges in the indictment, and the case did not go on to trial. The remaining 19 cases (8%) were deserted by the Crown pro loco et tempore¹⁶ or the accused failed to appear, and a warrant to apprehend the accused was issued.

3.22 Chart 3.1 shows that s.275 applications were made in 45 percent of all sexual offence cases indicted to the High Court. However when contested and non-contested cases are separated out, as in Chart 3.2, it becomes evident that a relatively high proportion of contested cases involve an application, compared to non-contested cases which have a relatively low incidence of applications.

Chart 3.1 Sexual offence cases indicted to the High Court and proceeding to trial, with and without s.275 applications (1st June 2004 to 31st May 2005)

Sexual offence cases with s.275 applications proceeding to trial

3.23 A very high proportion of sexual offence cases in which a s.275 application is submitted proceed to trial (that is, 85%, or 88 out of 103 cases); conversely those cases which do not involve an application are less likely to proceed to trial. The exact relationship between the presence of an application and the likelihood of a case proceeding to trial or not is not clear, although the findings suggest that there is some association. One possible reason for an association between high rates of applications and high rates of "not guilty" pleas, is that the effort involved in preparing an application is not likely to take place if early indications suggest an accused will plead guilty. Of the 231 sexual offence cases indicted to the High Court, more than half (128 or 55%) did not involve an application. Of these just over a quarter, (27% or 35) proceeded to trial. Of those cases which did involve an application, the majority (85% or 88) proceeded to trial.

Chart 3.2 Sexual offence cases indicted to the High Court by plea and s.275 applications (1st June 2004 to 31st May 2005)

3.24 Table 3.6 shows that the total number of cases involving sexual charges indicted to the High Court in the 12 month period June 2004 to May 2005 was higher than the corresponding figures from each of the 3 years of the baseline study. Apart from the 2001 figures, the proportion of cases proceeding to trial is broadly comparable.

Table 3.6 Sexual offence cases indicted to the High Court, current and baseline study

Charges in sexual offence cases which proceeded to trial

3.25 Of the 67 cases involving only rape identified in the case mapping exercise, 7 out of 10 proceeded to trial; of the 95 cases involving a charge of rape along with other sexual and/or non-sexual offences, over half (54%) proceeded to trial; of the 69 cases involving other sexual offences, over a third (36%) proceeded to trial. Trials involving rape charges are more likely than other sexual offence cases to proceed to trial. These proportions are broadly similar to those found in the baseline study: in the period 1999-2001, 66 percent of the cases indicted with a single charge of rape or clandestine injury and 58 percent of those involving multiple charges including rape or clandestine injury went to trial

Table 3.7 Charges in sexual offence cases proceeding to trial in the High Court (June 2004 to May 2005)

3.26 Rape was the most common sexual offence dealt with in the High Court. As Table 3.7 shows, four fifths (or 80%) of High Court sexual offence trials involved at least one charge of rape. Almost two fifths (38%) of sexual offence trials involved rape only, with 42 percent involving at least one charge of rape along with other sexual charges. One fifth (20%) involved sexual offences other than rape (e.g. attempted rape, indecent assault, sodomy).

3.27 This is a rather different picture than that produced by the baseline study, as Table 3.8 shows, where cases involving rape accounted for just under two thirds (65%) of High Court sexual offence trials in the 3 year period 1999 - 2001.

Table 3.8 Numbers of cases with sexual charges proceeding to trial in the High Court (1999, 2000, 2001) baseline study

* includes 2 cases of rape and murder, one in 2000 and the other in 2001.

3.28 One explanation for the increase in trials for rape since then may be that, since a decision by the Appeal Court in Lord Advocate's Reference (No. 1 of 2001), the offence of clandestine injury has been effectively abolished. Cases of clandestine injury are now necessarily rape. ¹⁷ If the numbers of base-line clandestine injury cases were added to the base-line rape cases, then the overall proportion (73%) is not so markedly different to the proportion of rape cases in the current study (i.e. 80% of all trials in current study involve rape).

Proportion of sexual offence trials with s.275 applications

3.29 As Chart 3.1 shows, almost three quarters of sexual offence trials now utilise a s.275 application (that is, 72%, or 88 out of 123 trials). This is a very marked increase, compared to the base-line study, see Table 3.9, where just over one fifth (21%, or 66 out of 313) of the sexual offence trials heard at the High Court over the 3 years 1999, 2000 and 2001 involved an application.

Table 3.9 Numbers of sexual offence trials, trials with s.275 applications, and total numbers of s.275 applications, current study and baseline study

3.30 The numbers of trials with multiple applications has also increased. In the base-line study, a total of 75 applications were made in all, as 8 trials involved the submission of more than one application: 5 trials involved multiple applications in 1999; 2 trials in 2000; and one trial in 2001. In the current study, there were a total of 118 applications in 88 trials.

3.31 This can be primarily explained by the opportunities afforded through the changes in the way in which applications are submitted. Although advance written applications are normally decided at a preliminary hearing, there is an opportunity for the Defence to request a continuation, usually to allow the incorporation of new or previously unavailable evidence. As well as amended or extended applications, an entirely new application may be submitted at a subsequent preliminary hearing, or even at the trial diet itself.

Sexual offence charges in trials with s.275 applications

3.32 The increase in the proportion of trials occurred across all types of sexual charges, but particularly markedly in rape trials. Applications were made in less than one in 4 rape (or clandestine injury) trials (24%) in the base-line study, compared to more than 3 in 4 cases (77%) in the current study.

3.33 Rape charges feature in four fifths of all sexual offence trials (80%, or 98 out of 123 trials) and over three quarters of those rape trials involve applications (75 out of 98 trials).

3.34 More detailed comparisons with the baseline data on the basis of charge type are illuminating. In the baseline trials involving a single charge of rape (or clandestine injury), one quarter of such trials (25%) involved an application, compared to over three quarters (77%) of such trials in the current study. The proportion of such trials in relation to all sexual offence trials was broadly similar in both data sets (33% in the baseline and 38% in the current study).

3.35 Trials with multiple charges of rape (or clandestine injury) accounted for 18 percent of all sexual trials in the baseline, of which a quarter (26%) involved an application. Although there was a far lower proportion of such trials in the current study (8%), four-fifths of these involved an application.

3.36 Looking at trials with sexual charges other than rape, in the baseline these accounted for 29 percent of all cases, and just 13 percent involved an application. Whilst there is a lower proportion of such trials in the current study (20%) over half of these (52%) involved applications to introduce sexual history and/or character evidence.

Trials with more than one s.275 application

3.37 Cases with multiple applications included those where separate applications were made by both the Defence and the Crown (although all multiples were made by the Defence, in all instances the Crown made only one application per case), and those cases where the Defence made more than one application, either because there was more than one complainer, or more than one accused or, as occurred in several of the cases identified here, where the Defence made a number of applications in relation to one complainer.

3.38 The proportion of cases involving multiple applications has more than doubled post-2002, as Table 3.10 shows. Whereas in the baseline study, just 8 out of the 66 trials with s.275 applications (or just over one in 10) involved more than one application, this has risen to 26 out of the 88 trials (or 3 in 10) under the 2002 Act.

Table 3.10 Numbers of s.275 applications made, and who made them (June 2004 to May 2005) trials only

3.39 Under the 1995 Act, the requirement to make an application to introduce otherwise prohibited evidence, applied only to the Defence. A partial explanation for the rise in multiple application cases can be found in the requirement placed on the Crown to make an application to introduce evidence. In 17 trials involving applications, separate applications were made by both the Defence and the Crown.

3.40 The increase is also partly due to the occurrence of cases involving more than one Defence application, although these numbers are relatively small. Table 3.10 shows this occurred in 9 cases. There were no cases with more than one Crown application. Under the 1995 Act, multiple applications occurred only in trials involving one accused and more than one complainer (i.e. one Defence application per complainer) or in cases with more than one accused (i.e. one Defence application made on behalf of each accused), but never in cases involving a single accused and a single complainer. While more than one application was not expressly prohibited under the previous procedure of speaking directly to the judge during the course of the trial, a second try would obviously risk testing the judge's patience and was not the practice. In all but 2 of the 9 multiple application cases in the current study, there was a single complainer and a single accused.

3.41 As previously stated, the fact that written applications are heard at a preliminary hearing in advance of trial, offers some scope for applications to be amended at subsequent pre-trial diets, or for entirely new applications to be made if, for example, additional evidence comes to light in the run-up to trial, or there is an indication from the court that the application is likely to be refused, or could be strengthened or amended in some way. This is explored in more detail in subsequent chapters.

The decision of the court in relation to s.275 applications (trials)

3.42 Of the total number of 118 applications, 105 were allowed either in full or in part. Two were withdrawn, 3 declared unnecessary by the judge and 8 were refused. Table 3.11 shows that in 57 trials, there was a single application made by the Defence, of which 55 were allowed either in full or in part by the court. In the 5 trials in which the single application was made by the Crown, all were allowed in full.

Table 3.11 Decision of the court in single s.275 application cases (trials)

(a) these were either withdrawn or considered "unnecessary" by the court.

3.43 Table 3.12 shows the decisions of the court in those sexual offence trials which involved an s.275 application by both the Crown and the Defence. In 14 trials, both applications were allowed. In 2 other cases, the Crown applications were allowed and the Defence applications were refused and withdrawn respectively.

3.44 In 3 of the trials where both parties made applications, the Defence submitted a second s.275 application, all of which (that is both Defence applications in each case) were allowed in full.

Table 3.12 Decisions of the court where s.275 applications made by both Crown and Defence (trials)

3.45 In addition, there were 9 trials involving multiple Defence applications. A total of 19 applications were made in all: 8 cases involved 2 applications and one case involved 3 applications. Of the 19 Defence applications, 11 were allowed, 6 were refused, and 2 were considered "unnecessary" by the court.

3.46 The rate of successful s.275 applications made under the 2002 Act is not dissimilar to that found in the baseline study where verbal applications made during the course of the trial were rarely unsuccessful; indeed only 5 out of 75 were refused entirely. Almost two thirds (63%) were wholly successful in that the court allowed all the evidence sought, and the court allowed the remaining 29 percent with some restrictions placed on the proposed line of questioning or evidence.

The relationship between s.275 applications and trial outcomes

3.47 The recent review of the investigation and prosecution of sexual offences in Scotland undertaken by the Crown Office and Procurator Fiscal Service (published 2006) indicates that of the rape charges that reached court within the period of the one year sample, ¹⁸ 26 percent resulted in a conviction, (19% resulting in a verdict of guilty after trial and 7% resulting in a plea of guilty) ( COPFS, 2006).

3.48 As Table 3.13 shows, in the current study, the accused was acquitted of all charges in just over half of the sexual offence trials (51%), found guilty of all charges in 23 percent of trials, and found guilty to some offences in 26 percent of trials.

Table 3.13 Trial outcomes for trials with and without s.275 applications (June 2004 to May 2005) trials only

3.49 In 3 out of 5 rape only trials in which an application was made to introduce sexual history or character evidence, the verdict was one of acquittal, as Table 3.14 shows.

Table 3.14 Trial outcomes for rape only trials, with and without s.275 applications (June 2004 to May 2005)

Advance intimation of a defence of consent

3.50 The 2002 Act necessitates that if the accused wishes to lead a defence of consent this should be intimated in advance of trial, Just under a third (74 out of 231, or 32%) of mapped cases lodged a defence in consent in writing.

3.51 Looking only at the sexual offence cases which proceeded to trial, the proportion of cases involving an advance intimation of consent rose to over half of the trials (68 out of 123, or 55%), as shown in Table 3.15.

Table 3.15 Sexual offence trials with and without notification of defence of consent (June 2004 to May 2005)

3.52 Although advance notice of a defence of consent was not required under the 1995 Act, the baseline study found that a defence that the sex was consensual was explicitly put forward by the Defence in approximately 40 percent of the sexual offence trials monitored.

3.53 In the base-line. consent was given by the Defence as a key reason in 20 of the 75 applications made in the High Court (4 of which involved mistaken-belief-in-consent). Consent was also the main defence argument in another 15 trials involving s.275 applications, although not explicitly stated in the verbal application to the court. Consent was most commonly introduced by the Defence during the cross-examination of the complainer, but was pursued through the cross-examination of subsequent Crown witnesses, and the examination of Defence witnesses.

Chart 3.3 Sexual offence trials with s.275 applications, who made application, and whether or not a defence of consent (DoC) was intimated by Defence

3.54 Chart 3.3 depicts the sexual offence trials with s.275 applications, showing which party made the application and whether or not a defence of consent was intimated. The increased proportion of trials with a defence of consent suggests that the procedural requirement to make such a defence explicit prior to trial has led to the increase in the number of cases in which the defence is intimated. However, this must be treated with some caution, as quite different methods of recording whether or not a defence of consent was led were used in the 2 studies. ¹⁹

Reasons for increase in s.275 applications

3.55 The explanation for the rise in the number of trials in which applications are made is complex and a number of causes are discussed in turn. First, however, one possible cause can be quickly eliminated. This is not solely the result of the requirement placed on the Crown to make an application to introduce evidence or questioning. There were just 5 trials (or 6%) in which the Crown made an application which did not also involve an application by the Defence; in the other 17 trials with a Crown application, the Defence also made an application (see Chart 3.3).

3.56 The likelihood of an application being allowed by the court cannot be so easily discounted as a reason for the high numbers of applications. Whilst the views from interviewees should be read as illustrative rather than representative, they nevertheless offer some useful insights. All were aware of the high incidence of applications, and the likelihood that, for the most part, such applications will be allowed, at least in part if not in full, by the court. This was put forward as a possible reason for the high numbers of applications by several interviewees. It is also the key reason put forward for increased number of such applications by the many legal practitioners that the researchers came into contact within the course of doing the research . However, it has to be remembered that a high likelihood of success was also a feature of the previous legislation. Whilst the very high likelihood of success is almost certainly an influential factor, there are other precipitating factors which, taken together, have led to the increase in applications, compared to the figures found in the baseline study.

3.57 One factor leading to the increase in cases with applications may be found in what have been termed "Anderson appeals", following the case in 1995 of Anderson v HM Advocate.²⁰ The appellant in the case claimed that his defence had not been properly conducted, in that his solicitor advocate had ignored his instructions to challenge the character of one of the complainers. ²¹ Here, it was recognised for the first time that the conduct of the Defence of an accused by his representatives could result in a miscarriage of justice. It is impossible to measure in any objectively precise way the impact that that decision may have had on the approach of Defence practitioners to the preparation and conduct of cases. However, among legal practitioners the view is widely held that it has had a significant impact.

3.58 Following Anderson, subsequent appeals in cases involving sexual offences (as well as other kinds of offences) saw some extension to the principles laid down in that case concerning the presentation of an accused's Defence, and somewhat widened the scope of so-called "defective representation" appeals. ²² Although few appeals based on Anderson have been successful, subsequent opinions of the Criminal Appeal Court have led practitioners to be apprehensive that the principle in Anderson may not be restricted to the question of whether the accused's Defence was presented, but may be extended to the manner in which it was presented. ²³ There is a perception amongst practitioners that Defence Counsel and solicitors may be reluctant to decide on the basis of their experience not to pursue what might be considered fairly speculative lines of inquiry.

3.59 Three of the Defence interviewees spontaneously referred to being "aware of Anderson " when preparing to defend in sexual offence cases. As one said,

"The obligations from a Defence perspective have increased and certainly the awareness of those obligations are much more sharply focussed I think, since the onset of the legislation." (Defence 2)

3.60 This is also a perception held by one of the Advocates Depute, who said:

"The requirement to make a written application in advance and the making of an order combines with what are called Anderson Appeals - these are appeals based on inadequate representation - to put the Defence under enormous pressure actually to make the applications and to ask the questions. Whereas under the former law the Defence could take a view in the course of the conduct of the trial about whether or not this was really necessary, and desirable, now in order to avoid an Anderson Appeal which blames them, if they think there's a possibility of it, they put the application in. If they get an Order granting the application, in whole or in part, they feel that having got the Order saying they can do this, they've got to ask the questions, because if they don't and the chap gets convicted he'll appeal on the basis that they didn't do what they'd been allowed to do." ( AD 1)

3.61 A second set of factors contributing to the increased number of s.275 applications, put forward by interviewees, concerns the impact of some of the elements of the High Court Reform Programme, described in Chapter One. In particular, this concerns the emphasis on the early preparation of cases by the Defence, and the early disclosure of statements and other evidential material by the Prosecution to the Defence. This, along with the requirement to submit a written application at the preliminary hearing, means that the need for a s.275 application is considered much earlier in the process than was the case under the 1995 Act, and information which may prompt a s.275 application by the Defence is available at an early stage of the proceedings.

3.62 As one Defence interviewee said,

"I think people have to grasp cases at an early stage and I think that's beginning to, you know, there's been a culture change with this Bonomy thing … which has meant disclosure at an earlier stage and people have to grasp cases at an earlier stage." (Defence 3)

3.63 This was echoed by an Advocate Depute:

"It's preliminary hearings. And now the Defence know that they can't come along on the Friday before the trial starts on a Monday with an application, with a list of witnesses, with a list of productions, and that's what frequently happened in the past. Now everything has to be put in place well in advance of the trial. So people are having to apply their minds to this." ( AD 2)

3.64 There have also been some noteworthy appeals that have overturned the decision by the trial Judge not to allow evidence or questioning under application. The impact of the decisions taken by the Court of Appeal in such cases was seen by some of the legal practitioners interviewed in this research as another reason for the increase in s.275 applications.

3.65 In Cumming v HM Advocate 2003 SCCR, 261, the Appeal Court over ruled the trial Judge's exclusion of some of the character evidence specified under a s.275 application. In Kinnin v HM Advocate 2003 SCCR 295 an appeal against the exclusion of sexual history and character evidence was not opposed by the Crown and so was granted without much discussion. In Tant v HMA 2003GWD 24-686, the appeal, which was against conviction, involved a successful submission that the trial Judge had wrongly refused an application for permission to ask the complainer whether she accepted that she had had consensual sexual intercourse with the accused some months previously. The Judge took the view that to allow the application would be to allow the Defence to go into matters which the new legislation specifically excluded. The Appeal Court, however, took the view that such questioning was material to the accused's Defence, and it was therefore contrary to the interests of justice to refuse to admit it.

3.66 The role of the Crown in 2 of the appeal cases has been to support opposition to judicial rulings excluding sexual history or character evidence either at the preliminary hearing and/or during the appeal processes. Whilst it was not possible to assess the direct effect of Appeal rulings on the making and deciding of applications, interviews with all legal professionals indicated that they consider Appeal Court decisions influential.

3.67 Some commentators have alluded to the position taken by the Crown as an important factor in the incidence of s.275 applications made by the Defence (Lothian, 2003) on the basis that where an application is made which is not opposed by the Crown, the trial Judge may take the view that what is required is an adjudication on the parties' submissions rather than an independent assessment, and hence allow the application (2003:53). The nature of the competing interests which must be weighed by prosecutors in their approach to applications was recognised in the COPFS Review (2006), which recommended that revised guidance on the approach to applications be issued to all prosecutors. Interviews with Judges concurred with this position to some extent, viewing the position taken by the Crown as an important factor in deciding whether or not to allow the evidence or questioning sought, and this is discussed in more detail in the following chapter.

3.68 Another set of related factors contributing to the increased numbers of applications concern the increased scope of the legislation and the fact that applications may cover questioning that would not have previously required an application, including general character evidence. Several interviewees remarked upon the consequences of this, believing that there are more applications simply because the scope of the legislation is wider. The extent to which applications include questioning or evidence that would not have previously required an application is pursued in subsequent chapters.

Chapter Summary

3.69 Two hundred and thirty one sexual offence cases were indicted to the High Court in the 12 month period 1st June 2004 to 31st May 2005. Forty five percent of these contained a s.275 application to introduce sexual history or character evidence. Just over half (53%) of these sexual offence cases proceeded to trial. Eighty percent of all High Court sexual offence trials involved at least one charge of rape.

3.70 The accused was acquitted of all charges in just over half of the sexual offence trials (51%), found guilty of all charges in the indictment in 23 percent of trials, and found guilty to some and acquitted on some offences in 26 percent of trials.

3.71 Almost three quarters of sexual offence trials taking place in the High Court following the 2002 Act now seek to introduce sexual history or character evidence by means of a s.275 application (that is, 72%, or 88 out of 123 trials). This is a very significant increase, of almost 3 and a half times, compared to the base-line study, where just over one fifth (21%, or 66 out of 313) of the sexual offence trials heard at the High Court over the 3 years 1999, 2000 and 2001, involved a s.275 application.

3.72 The proportion of cases involving multiple applications has increased, from just over one in 10 cases in the base-line study, to 3 in 10. Successive applications were made both pre-trial and at the trial itself, in relation to the same complainer. This seems to run counter to legislative intent. The requirement for advance written application affords an opportunity for Defence requests for continuation, largely in order to assimilate new or previously unavailable evidence in the application. This can result in additional, as well as amended applications.

3.73 The overwhelming majority (97%) of s.275 applications are successful, in that the evidence sought is almost always fully or partially allowed. The court sometimes facilitates applications and very rarely entirely disallows applications. This is similar to the situation in England and Wales (see Kelly et al, 2006).

3.74 Rather perversely, it seems, the new provisions have resulted in an increased proportion of trials where requests are made to introduce sexual history or character evidence. The submission of an application shows signs of becoming a routine aspect of case preparation in sexual offence contested cases. Whilst the majority of applications are made by the Defence, the Crown made an application in one quarter of trials containing applications (or 22 out of 88 such trials). Most of these occurred in cases where an application was also made by the Defence.

3.75 Over half of the trials involved an advance intimation of a defence of consent (55%).

3.76 There are several reasons for the increase in applications. The requirement that the application be made in advance and in writing has combined with other changes in procedure to heighten early consideration of the possibility of an application by the Defence. These other changes include: greater emphasis on early preparation for preliminary hearings; more extensive and earlier disclosure by the Crown of material and evidence that may be pertinent to the decision of whether or not to lodge an application; and the effect of "Anderson Appeals" and other influential Appeal Court decisions on cases which have involved applications. Some appeals have over-turned decisions not to allow evidence sought, and upheld the inclusion of character evidence as material to the case. It is widely understood that s.275 applications are likely to be successful and the otherwise prohibited sexual history and character evidence allowed, at least in part. Furthermore, the increased scope of the restrictions to include general character evidence has also contributed to the increase in the number for applications.

3.77 The legislation has had an apparently rather perverse effect, in that the vast majority of sexual offence trials, and almost all trials for rape, now involve requests to introduce (often extensive) questioning or evidence on the sexual history or character of the complainer, and moreover, such requests are overwhelmingly allowed. The result is that the introduction and use of such evidence under the 2002 Act is more extensive than before.