News

We’re intervening in a Supreme Court case

This week, we are at the Supreme Court of the United Kingdom in London to intervene in a case which challenges the current restrictions in place in Scotland on what kinds of evidence can be brought up by the defence in sexual offence trials.

This case really matters. Often one of the biggest fears survivors raise with us about going to court is the fear of their sexual history or other aspects of their past being brought up in court.

We are very grateful to counsel who have agreed to act for us on a pro bono basis, and to the Emma Ritch Law Clinic who are also representing us in the case.

A huge thank you to Fidjit, the incredible tattoo artist whose fundraising efforts are covering the cost of us intervening in this case, ensuring the Court can hear the perspective of complainers in sexual offence cases. We wouldn’t be here without her.

We’ve answered some questions you might have about the case, and our intervention.

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.

When will we know what the outcome is?

It is hard to say exactly but it is likely to be a number of months

I have questions about Section 275 and what it might mean for my case. Who can I speak to?

Help to engage with the justice system, from considering making a police report all the way through to post-trial, is available from specialist Advocacy Workers at your local Rape Crisis Centre.