A leading criminal defence advocate has called for views to be expressed "respectfully" in an highly charged debate over what evidence can be heard in court in sex offence cases after rival campaigners clashed outside Holyrood.
Thomas Leonard Ross KC spoke out following angry scenes outside the Scottish Parliament last Tuesday after a campaign group who claim men are being wrongly convicted of sex crimes staged a protest outside the Scottish Parliament.
Justice for Innocent Men Scotland (JIMS) argues rules on evidence in sex offence cases are resulting in unfair trials as important evidence which could help the accused be acquitted is not allowed to be heard.
About 200 of its members - including families of convicted sex offenders - gathered at Holyrood where they were faced with a smaller counter-demonstration from a group called Justice for Every Mistreated Survivor (JEMS) which argues conviction rates for rape and sexual assault remain far lower than for other crimes and victims often feel re-traumatised by their experience in court.
Read More:
Leading KC raises concerns over accused rights in rape trials
Supreme Court asked to issue guidance to Scottish judges
Rival Holyrood protests over Scotland's rape shield laws
Some of those attending the JEMS protest said they had been the target of personal abuse by members of Jims, while Jims members said their members had been attacked in a similar way by members of Jems.
Mr Ross spoke to The Herald in July to raise his concerns that the operation of Section 274 and 275 of the Criminal Procedure (Scotland) Act 1995 - rules designed to protect complainers in sexual offence trials by regulating, and often excluding, evidence of their sexual history or character - were risking the accused's right to a fair trial.
"We have reached the stage where the victim has lied about things and the court has not allowed the defence to put that before the jury," he told the paper at the time.
"How can it be said that someone has had a fair trial when it's been proved that the complainer lied about something important in the course of the inquiry and that was not allowed to be introduced as evidence? There are serious concerns that people are not getting a fair trial when they are not being given the opportunity to provide evidence which might support their innocence".
Read More:
Lawyers 'breaching' court rules designed to protect victims
Defence lawyers say juryless trials pilot 'an affront to justice'
Scotland 'can lead the way' with new sexual offences court
His concerns have been echoed by other senior defence lawyers including Tony Lenehan, vice dean of the Faculty of Advocates, and solicitor advocate Simon Brown.
Mr Brown, president of the Scottish Solicitors Bar Association, told The Herald on Saturday: "The difficulties posed to the defence by the way the courts currently interpret 274/275 have already been well documented, with the defence bar universally agreeing that the pendulum has swung too far in the restrictions it places on lines of cross examination."
In a social media post over the weekend Mr Ross noted the rival demonstrations outside the Scottish Parliament.
"Scotland had a public clash of beliefs in the form of a demo and counter-demo outside the Parliament building.," he wrote on the professional networking website LinkedIn.
"The demo marked International Falsely Accused Day and the silent protest was said to ‘pledge support of innocent people caught in broken justice systems’. The counter protest was there to ‘call out victim blaming and show survivors that we stand with them and stand together’.
"My publicly stated concerns about the rape shield provisions unintentionally brought me into this conflict. It was alleged that people connected with the demo had been guilty of bullying and victim blaming - and as I had publicly voiced similar concerns about the fairness of sexual offence trials - people were entitled to ask - do you support such conduct?
"Of course I don’t. In the interests of balance I have seen posts encouraging extreme violence against members of the demonstrating group. I don’t support that either."
He added: "I remain concerned that the way in which the rape shield provisions are being applied in Scotland raise an objective risk of miscarriages of justice - but I stop short of alleging that any particular individual is innocent - or that any individual complainer lied in court. I simply don’t know.
"If a complainer is diagnosed by a psychologist as ‘a compulsive liar’ I think it’s wrong to deprive the fact finders - sworn to assess her credibility - of that diagnosis - but it does not follow from the exclusion of that evidence that the complainer was not sexually assaulted - only that the trial was arguably objectively unfair
"But can we expect someone who has seen her partner convicted - when important evidence was excluded by a judicial decision - to view the issue so objectively.? Can we expect a victim who knows that she was sexually assaulted and told the truth in court to remain objective when publicly called out as a liar?
"Probably the best that we can hope for is that the competing views are voiced politely and respectfully - and I definitely do support conduct of that sort."
Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 are designed to protect complainers in sexual offence trials by regulating, and often excluding, evidence of their sexual history or character.
Section 274 establishes the general rule that such evidence is inadmissible, while Section 275 allows for exceptions in specific circumstances.
But for a Section 275 application to succeed defence lawyers must demonstrate when they make the application that not just that the evidence is relevant, but that its relevance outweighs the intrusion it represents into the privacy and dignity of the complainer.
Share