News

Statement on Inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995

This is a welcome, important and timely review. For survivors, the prospect of their sexual history or private life being brought up in court often forms part of the fear about reporting rape. When it happens, it can add significantly to the distress and violation experienced by rape complainers in court.

There are significant gaps in the available data around what is happening with this type of evidence, with the last published research based on cases from 2004-05.

Today’s review shows a significant decline in the number of applications being made which relate to a complainer’s sexual history other than with the accused, dropping from 20% in previous research to 3% today. This suggests that significant progress has been made in excluding irrelevant and prejudicial information about complainers’ sexual history from rape trials.

It is crucial to have up to date research on what is happening with these issues. We look forward to forthcoming research led by Professor Sharon Cowan from the University of Edinburgh on this important subject.

We urge both the Crown Office and the Scottish Government to accept and implement the review's recommendations as quickly as possible.

Beyond the recommendations from this review, we appeal to decision makers to go further in protecting rape complainers’ privacy rights by providing access to legal representation when attempts are made to introduce their sexual history or character during a criminal trial.

The Inspectorate noted:

“During our inspection, we regularly heard that the law around sexual history and character evidence is complex and challenging, even for experienced prosecutors. Even members of the judiciary we interviewed said sections 274 and 275 tend to be some of the most complex matters they encounter.”

Given this complexity, it is hard to see how rape complainers can be expected to navigate this process without legal representation. We look forward to imminent legislation from the Scottish Government to introduce this key right.