Angela Constance has warned MSPs of a prospect of delays, adjournments and appeals in sexual offence cases after a landmark judgment found how trials have been conducted in Scotland for more than a decade had put at risk the accused right to a fair trial.
The justice secretary, who will face a no confidence motion in Holyrood over grooming gangs, said civil servants are "monitoring any disruption" to court proceedings.
She made the comments in a letter to a Holyrood committee after its convener asked her and the Lord Advocate to set out in detail the impact of the Supreme Court ruling.
Dorothy Bain KC wrote back to the convener of the criminal justice committee, the SNP MSP Audrey Nicoll, last week warning of disruption with Ms Constance responding on Monday.
The unanimous ruling, handed down by Lord Reed, President of the Supreme Court, last month, found that laws designed to protect victims in court were being applied in a way that was "too restrictive" and risked breaching the European Convention on Human Rights, the right to a fair trial.
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It said the approach, which has been taken since 2013, risked breaching Article 6 of ECHR by not allowing the defence to present evidence that could properly challenge the prosecution's case.
Now Ms Constance has told the committee that there may be "disruption" resulting from delays to current and future cases and an increase in appeals against conviction.
"My officials are working with justice partners including COPFS [Crown Office and Procurator Fiscal Service] and SCTS [Scottish Courts and Tribunal Service] to monitor any disruption or delay in sexual offences cases as a result of the judgment, noting that may arise from greater numbers of defence section 275 applications, prolonged procedure, adjourned diets and greater numbers of appeals," she said.
She added: "It will take time for the justice system to distil and respond to the judgment before we will be able to fully assess its impact and I understand that this uncertainty will have a considerable impact on all involved in sexual offences cases, including victims who we know already face significant barriers in reporting offences and giving evidence."
She continued: "It is important to acknowledge that the judgment itself does not routinely require or allow the admission of sexual history and character evidence but instead requires a different approach from the courts when considering these matters.
"That approach will be applied on a case by case basis and the judgment itself indicates that relevant questioning must only be permitted to the extent necessary for a fair trial."
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Known as "rape shield laws" Section 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.
In response to the Lord Advocate’s letter, Rape Crisis Scotland chief executive Sandy Brindley said: “We recognise the concerns raised by the Lord Advocate and the profound and deeply distressing impact they will undoubtedly have on survivors of rape and sexual violence.
“Survivors already face unconscionable delays within the criminal justice system. Further adjournments will cause more unnecessary stress and may put women off going to court at all.
"Meanwhile, many survivors whose rapists were convicted are incredibly anxious about the prospect of historical appeals. Even if the appeals have no merit, there is a chance survivors will be forced to revisit an incredibly distressing part of their lives that they thought they had put behind them.
“Limitations on sexual history and character evidence was put into place because women were regularly being subjected to irrelevant and humiliating questioning.
"We only need to look back a few years to find an instance of a complainer in a sexual offence case being asked 11 different questions on what she was wearing immediately prior to and during her sexual assault. If women think that there is a risk that we will result to those days, they will stop reporting rape.”
Labour and the Tories have both tabled motions of no confidence in Ms Constance, after the parties say she misrepresented the views of a leading expert Professor Alexis Jay on whether there should be inquiry into grooming gangs in Scotland.
The vote is to take place today before Parliament breaks up for recess at the end of the week.
While the Lib Dems have said they will back the motion of no confidence, the Scottish Greens have said they will vote against.
That should mean the minister survives the vote.
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