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Will Scottish judges push back at the UK rape trials ruling?

A landmark judgement was made by the Supreme Court last year which found Scottish courts were risking the right of the accused to receive a fair trial in serious sex offence cases. How will the Scottish judges respond? <i>(Image: Graphic: Derek McArthur)</i>
A landmark judgement was made by the Supreme Court last year which found Scottish courts were risking the right of the accused to receive a fair trial in serious sex offence cases. How will the Scottish judges respond? (Image: Graphic: Derek McArthur)
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Back in November last year the UK highest court issued a judgment which sent shockwaves through Holyrood, through Scotland's legal system and through organisations representing victims of crime.

It ruled that legal provisions, referred to as "rape shields laws", designed to protect complainers by determining certain types of evidence as "inadmissible", had been interpreted for the previous 12 years in a way that put at risk the accused's right to a fair trial.

Handing down the judgment, Lord Reed, a Scot, then President of the UK Supreme Court (UKSC) was clear that Scottish courts would now need to take a less "restrictive approach" over what evidence could be heard in such cases.

The ruling from the UK's highest court is binding but is open to interpretation by the Scottish courts about what adjustments should be made.

It could mean that evidence of prior sexual contact between a complainer and an accused, and evidence relating to the complainer's character, can now be presented to court to help ensure the defence to properly challenge the prosecution's case.

Overall, the UK judges argued a new balance needed to be struck to ensure anyone accused of rape or serious sexual offences in Scotland would receive a fair trial - a requirement under Article 6 of the European Convention of Human Rights.


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Dorothy Bain KC and Angela Constance, the Lord Advocate and justice secretary at the time, warned the ruling would have major consequences on how rape trials proceeded from then and on previous cases where an accused had been convicted.

Ten months on and Scotland's courts are now seeing appeals against conviction explicitly being made on the grounds of last year's Supreme Court ruling being heard.

Two cases were heard this summer with the decisions yet to be made. It will be significant to see what the outcomes of the appeals are.

The judgments when they come out will indicate how Scottish judges are responding the ruling.

The Supreme Court issued its judgment in November last year.The Supreme Court issued its judgment in November last year. (Image: Dan Kitwood)

Of course there will be cases where the convictions will not be overturned. Indeed the Supreme Court upheld the rape convictions of the two men at the centre of its landmark judgment.

It dismissed their appeals on the grounds presented and said they had received fair trials – even though they ruled that Scotland's courts should change their approach more generally.

Would it be unexpected if only a small number of appeals are successful? And what could that indicate?

It could of course simply mean the appeal court judges were not convinced that the accused did not receive a fair trial.

But could it also suggest a push back among Scottish judges to the Supreme Court's ruling?

Defence Aidan O'Neil, the KC who represented one of the appellants in the Supreme Court case David Daly, has already warned of Scottish judges "resistance" to the ruling.

In an interview last year Mr O'Neill said it was hard to "overstate" the importance of the judgment saying it was "even more momentous" than that in the case of Peter Cadder heard in the Supreme Court in 2010.

In that case UKSC judges found the police practice in Scotland of interviewing suspects without a solicitor present infringed their human rights.

The ruling meant Scottish police could no longer question suspects without allowing them access to a lawyer. As a result 867 cases were abandoned, including 60 serious cases, nine of which were High Court cases.

In the wake of last November's ruling Mr O'Neill noted: "Objection has already been heard from judges in the Appeal Court to the effect that the UKSC has no jurisdiction to change the common law of Scotland, whether on the admissibility of evidence in criminal trials or other procedural matters."

He added: "But this is to miss the point. Section 6 of the Human Rights Act 1998 imposes a statutory duty on the Scottish courts always to act in a manner which is Convention compatible.

"The UKSC has held that the current Scottish approach – which is generally to exclude as inadmissible any evidence (sought to be led by the accused in exculpation) which concerns the complainer’s prior or subsequent (sexual) behaviour, or evidence otherwise bearing on the credibility of her allegations against the accused – is liable to violate Article 6 ECHR."

He continued: "It is hard to over-state the importance of the Daly decision and the impact it will have on past convictions, and on current and future trials for sexual offences in Scotland...The decision is even more momentous than that of Cadder."

As I reported in June this year 20 people convicted of rape or other serious sexual offences have to date have applied to the Scottish Criminal Cases Review Commission (SCCR), the public body which examines potential miscarriages of justice, in a bid to have their convictions overturned following the landmark rape shield ruling.

Their lawyers will no doubt be reading Appeal Court judgments very closely.

KCs and solicitors will be using them as they prepare appeal cases - with the possibility of heading to the Supreme Court if their clients' convictions are upheld and they believe Scottish judges are continuing to interpret the rape shield provisions in a manner the higher court would deem as too restrictive.

 

 

 

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