Supreme Court case to challenge restrictions on evidence defendants in sex abuse trials (Scotland) can use

[IwantToRetire]

No direct info about this, but saw this press release from Rape Crisis Scotland (and yes I know some will groan because of who it is, but this court challenge could have implications for sex abuse victims).

What is this case about?
We’re intervening in a case which challenges restrictions in Scotland on what kind of evidence can be brought up over the course of a sexual offence trial.
Restrictions on the introduction of a complainer’s sexual history or character were introduced in their current form in Scotland through the Sexual Offences (Procedure and Evidence) Scotland Act 2002. Where the Crown or defence wish to introduce such evidence, they must make what is known as a s.275 application to the court, normally in advance of trial. Judges consider first whether the evidence is relevant, then apply the tests contained in the legislation.
Survivors often tell us that they are fearful of evidence about their sexual history or character being brought up in court. This case really matters.

What is the case challenging?
Case law on the admissibility of sexual history and character evidence has developed considerably over the past decade. Examination of reported decisions shortly after the implementation of the 2002 Act show a markedly different approach from the Appeal Court to this area of law compared with more recent cases. Recent appeal judgements take a tighter and more restrictive approach to relevance and admissibility of this type of evidence in sexual offences trials. This means more Section 275 applications to introduce evidence about a complainer’s sexual history are being refused or limited.
The two cases currently before the Supreme Court challenge the current approach of the Courts in Scotland to the restriction of evidence in these cases arguing that the Scottish system is not compliant with Article 6 of the European Convention on Human Rights (the right to a fair trial).

Why are we intervening?
We’re intervening to ensure that, when considering these matters, the perspective of survivors of sexual offences in Scotland, both in relation to the development of the law, and as it is now applied, is available to the Supreme Court.
Full PR https://www.rapecrisisscotland.org.uk/news/news/were-intervening-in-a-supreme-court-case/

In anyone has direct info please do add.

Good grief. I don't know what to say.

Obviously, we don't have the notion of reciprocity for a fair prosecution where there is a victim in such offences. If this is the current state of play in England (I assume it's similar stats for Scotland), how many more cases will be dropped for well-founded lack of faith in the system (and in juries)?

Despite her horrifying experience, Ellie describes herself as one of the “lucky” ones. For every 100 rapes recorded by the police in England and Wales, fewer than two will result in a guilty verdict, external.
One reason is that an estimated 60% of people who report being raped drop out of the justice system, external before their trial takes place. After reporting their assault to the police, victims can be left for months or even years waiting for their attacker to be charged. It then takes an average of two years for the case to get to trial, according to the Criminal Bar Association.
Many fear that, after years of waiting, their behaviour and sexual past will be torn apart to sway the jury.
We know from research into public attitudes and understanding of rape and sexual offences that this is likely to be an effective strategy.
After surveying more than 3,000 people, the Crown Prosecution Service (CPS), external concluded that “the public’s accurate understanding of rape is outweighed by false beliefs, misunderstanding, lack of knowledge, and underlying stereotypes”.
Fewer than half of those surveyed could identify common rape myths and perceptions, and one in 10 agreed that it was up to women to take precautions against rape.
Half were either unsure or agreed that someone who had been drinking or taking drugs should take some responsibility if they are raped, while only a third agreed that women rarely make up rape allegations. Evidence shows that very few people fabricate allegations of rape or sexual assault.
Underpinning all this is that the nature of rape as a crime makes it particularly hard to prove, explains Kama Melly KC.

https://www.bbc.co.uk/news/articles/c8djdm198r4o

We’re intervening to ensure that, when considering these matters, the perspective of survivors of sexual offences in Scotland, both in relation to the development of the law, and as it is now applied, is available to the Supreme Court.

It's like we are going back to the 70s or maybe not that long ago, that a woman with a "dubious" sexual history is fair game for rapists.

It really does feel that even basic women's rights aren't even respected, let alone that women should be seen as autonomous human beings worthy of resepct.

No wonder men are making a fuss about having to take into account women matter.

It's like we are going back to the 70s or maybe not that long ago, that a woman with a "dubious" sexual history is fair game for rapists.

I'm not sure this has ever gone away, despite some half arsed attempts to stamp it out by changing laws and policies. It's the reason the Ched Evans verdict was eventually overturned, because the victim had had casual sex with other men.

https://www.theguardian.com/society/2016/oct/14/campaigners-fear-evans-case-will-stop-women-reporting

Hi womens services advocate for a very long time nothing has fucking changed at all.

So there is a case being heard to change that regulation? Is that correct?

I find it difficult to say much without knowing in what way they want it changed, and what their argument is. Which didn't seem to be laid out in the article.

Restricting evidence seems like it's a very serious thing to do, so I guess I am not surprised that a case like this would be heard. It's the kind of thing tht shouldn't really be taken for granted and so serious arguments need to be considered whether we like the idea of not.

I think RCS made it clear.

The DONT want it changed.

They have therefore asked to be part of the case to oppose the proposal that has now been referred to the high court.

I cant find, but as it is this week it is probably on the High Court web site, what the arguement is that is being made the defendants in rape trials are being disadvantaged by not being able to present some evidence.

ie RCS are intervening on behalf of women who have been raped.

To repeat what is in the OP:

What is this case about?

We’re intervening in a case which challenges restrictions in Scotland on what kind of evidence can be brought up over the course of a sexual offence trial.

Restrictions on the introduction of a complainer’s sexual history or character were introduced in their current form in Scotland through the Sexual Offences (Procedure and Evidence) Scotland Act 2002. Where the Crown or defence wish to introduce such evidence, they must make what is known as a s.275 application to the court, normally in advance of trial. Judges consider first whether the evidence is relevant, then apply the tests contained in the legislation.

Survivors often tell us that they are fearful of evidence about their sexual history or character being brought up in court. This case really matters.

NB Note the last paragraph.

I'm sorry are you saying that because they don't want it changed the challenge shouldn't be heard?

I'm sorry are you saying that because they don't want it changed the challenge shouldn't be heard?

No!

Based solely on the press release, they are adding their concerns to those already opposing any change to the existing system.

This is the same as when in some of the recent court cases about trans issues, groups like Liberty have added their names, concerns (which I think they have done to the FWS case).

I assume, but dont actually know, that this is done to say that those opposing a legal arguement aren't some isolated lunitic fringe, but are in fact a number of different organisations with similar concerns.

I've checked the High Court listings and cant find anything that looks anything like this case.

So can only go on the Press Release that OP is based on.

Restricting evidence seems like it's a very serious thing to do

But this isn't evidence relating to the crime. It evidence about what the victim has done previously - potentially years previously, with entirely different people in totally different circumstances.

It's inviting juries to judge the victim rather than the accused.

It's as relevant as saying a burglary case should be able to list the times the homeowner hung her handbag on the back of her chair in a café or opened an office window. Or a murder case bringing up the victim's childhood grazed knees and the fact she used to use hedge clippers when not wearing safety goggles.

All these arguments were thrashed out when the original law was passed. There's no reason to revisit them.

Thanks - that puts it much better than I managed.

I have been to both the Scottish and the UK Supreme Court websites and cant see anything listed that looks like it is related to me (but then it is strange legal jarguon).

SRC posted this on Monday and said this week. Will find time to look again.

Newsflash - I think I have found it!

https://www.supremecourt.uk/cases/uksc-2023-0107.html

But looks like the case ended today?

That could be it. If so it seems to be challenging a very small part rather than the law as a whole. A specific action against him rather than general past conduct and sexual history.

And I would have thought it's really the second point that matters - under the existing law his defence team could have applied to have the previous allegation included as evidence because it is specifically relevant. If they didn't that's a problem with his lawyers rather than with the law.

You could be right. The SRC statement made it sound a bit more dramatic.

It looks like the court hearings are available online for anyone who has the time to listen!

https://www.supremecourt.uk/watch/uksc-2023-0107-0123/211024-am.html

It's as relevant as saying a burglary case should be able to list the times the homeowner hung her handbag on the back of her chair in a café or opened an office window.

Not really. That's nothing like it all. More likely to be accepted into evidence, would be the time years ago when somebody tried to take something that belonged to her, she was heard to say to him "Sure I don't care about that - have it - oh and be sure to enjoy the rest of the afternoon". Then cut to the present, after she reports a mugging to the police, in his interview the defendant said that she let him have it and as he took it, she said to him "have a nice day".

Yes, that's a better analogy.

I think restricting any evidence the accused wants to present is serious. That's not to say it's wrong, but it's serious.

If there is a hearing, then the challenge was allowed to go forward, so someone thinks it needs to be addressed. You can't just decide on a rule and the it is set in stone for all time.

It seems to me that what's happening is correct. Someone has an argument to make, they will make it, and others will be allowed to oppose it.

What i'd be really interested to know is what the argument is - as it's being heard am guessing it must be a new argument rather than something addressed before.

What i'd be really interested to know is what the argument is - as it's being heard am guessing it must be a new argument rather than something addressed before.

As has been said a number of times, this is about the existing restrictions that apply in any rape case that the defendant can not use the past history of the woman who has alleged rape as an extenuating factor.

This is a principle that feminists have been campaigning on for years.

Why would anyone, let alone on a feminist forum think that this restriction should be removed.

Not sure if this is the relevant court case, but either way an interesting ruling.

https://www.holyrood.com/news/view,landmark-corroboration-ruling-could-bring-more-rape-cases-to-trial

I'm sure that sooner or later there will be better coverage than a newspaper article.