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What does the Supreme Court ruling mean for you?

The UK Supreme Court was asked to intervene in the cases of two men appealing against rape convictions delivered in Scottish courts (Daly v HM Advocate; Keir v HM Advocate).

The case argued that rules around admissible evidence in sexual offence cases, known as ‘rape shield’ laws, had been applied too harshly and impacted their right to a fair trial. 

The Supreme Court unanimously rejected the appeals of the two men and ruled that they had both received fair trials. 

However, it also ruled that Scottish courts should change the way it considers the admission of evidence because its current approach could infringe the rights of the accused.

Scotland’s most senior law officer has insisted that the rights of survivors will remain protected in the wake of any changes.

Here the Emma Ritch Law Clinic explains the judgment and what it means for survivors at every stage of the criminal justice process. 

What is this judgment about and what does it mean?

The law protects complainers from having sexual history and character evidence being heard in sexual offence trials unless certain tests are met – under legislation known as the ‘rape shield’. If the Crown (the prosecution) or defence wants to introduce this type of evidence, they have to make what is called a ‘section 275 application’.

The United Kingdom Supreme Court has ruled that the Scottish courts’ approach to deciding section 275 applications may breach accused persons’ fair trial rights. The Scottish courts will need to change their approach as a result.

What was the Scottish courts’ approach?

From 2013 onwards, the Scottish courts had held that evidence of sexual behaviour between the complainer and the accused before or after the charge should not be heard at trial. The same applied to evidence of false allegations unless there was a conviction for something such as wasting police time. They said that this evidence should be ruled out without even needing to apply the tests in the ‘rape shield’ legislation because the evidence is irrelevant under what is known as the ‘common law’. The Supreme Court said that the Scottish courts were wrong to take this approach.

What might change now?

Scottish courts are now going to have to apply the ‘rape shield’ legislation when either the Crown or the defence make a section 275 application.

Whilst it is difficult to predict the precise impact of the case, there will likely now be more applications granted relating to sexual history evidence between the complainer and the accused that came before or after the incident in the charge. It is also likely that more applications will be made looking to question complainers on whether they have previously made ‘false’ allegations of rape or sexual assault.

What does this judgment not mean?

This judgment does not mean that all sexual history evidence is suddenly admissible in sexual offence trials. It is important to bear in mind that the legislation is designed to protect the privacy and dignity of complainers but also ensuring that the accused has a fair trial. The Crown or defence must still apply in advance for permission to lead evidence of this sort. Complainers are also still legally entitled to be told in advance about the content of section 275 applications. The Crown must also tell the court what the complainer’s views on the application are before the court decides whether to permit the evidence or questioning. The judgment does not mean that someone who was convicted of a sexual offence is suddenly declared innocent.

How might the Supreme Court decision impact an ongoing case?

In ongoing cases, where the accused and the complainer knew each other and had sexual contact before or after the alleged offence, it is likely there will be new section 275 applications. Preliminary Hearings (hearings where a judge checks if the Crown and defence are ready for trial) may have to be adjourned for this to occur. Some cases may even require trials to be adjourned to allow for investigations relating to these applications to be made. (“Adjourned” is where a hearing or trial is paused to start again at a later date.)

As mentioned, the Crown will still inform complainers if a section 275 application is made, even if it’s a late application, and complainers have a right to give their views on this application. The Crown must tell the court what their views are.

How might the Supreme Court decision impact cases where there has been a conviction?

It is likely that some people convicted of sexual offences will claim that their conviction was a miscarriage of justice following the Supreme Court’s judgment. Unless their convictions were very recent, they will have either to apply to the Appeal Court for permission to lodge a late appeal, or if they have already appealed unsuccessfully, apply to the Scottish Criminal Cases Review Commission (the SCCRC), a body which can investigate potential miscarriages of justice. The SCCRC has said that it is studying the implications of the judgment. It is likely to take a long time (several months or even years) for the SCCRC to consider all of these applications.

The SCCRC cannot overturn convictions – if they think that a miscarriage of justice might have occurred, and it is in the interests of justice to do so, they will refer the case back to the Appeal Court for consideration. The Crown will inform a complainer if this happens. Likewise, the Crown will inform a complainer if an application has been made to appeal a conviction to the Appeal Court directly. Just because ‘leave to appeal’ a conviction has been sought, or granted, or a case has been referred by the SCCRC, does not mean that a conviction will be overturned. (“Leave to appeal” means only that the convicted person has been given permission for their appeal to be heard by the Appeal Court, with the Crown being given the opportunity to respond.) A conviction can only be overturned after a hearing on the matter in the Appeal Court where legal submissions will be made by the Crown and the appellant.

Nobody can seek bail (“interim liberation”) just because they have an application pending to the SCCRC. It is possible to seek bail once an appeal has been lodged at the Appeal Court, but it is unlikely that many people convicted of rape and other serious sexual offences will be granted bail before their appeal is heard.

It is important to bear in mind too that not all convictions will be deemed miscarriages of justice. The Appeal Court will set down criteria for assessing whether a miscarriage of justice has occurred or not in due course. It is likely that they will consider all of the evidence in the case, not just the sexual history and character evidence that is the subject of the appeal.

In the two cases that were the subject of the Supreme Court decision, the Court said that the accused persons’ rights had not been breached and the sexual history and character evidence was rightly excluded.

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With thanks to the Emma Ritch Law clinic, who produced this briefing.

Rape Crisis Scotland runs a national advocacy project, which helps survivors of sexual violence navigate the justice system. Find out more about how you can get in touch with our advocacy team here.