Ministers unsure if convicted sex offenders have appeal grounds

But in a submission to a Holyrood committee the Scottish Government has said it has "no way of determining" how many people "if any" would have grounds for appeal as a result of last year's judgment by the Supreme Court.

The Supreme Court judgment related to what evidence is allowed to be heard in trials for serious sex offences.

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It found that the law - set out under Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 which is designed to protect complainers giving evidence from irrelevant, intrusive and distressing questioning - had been interpreted by the courts in a way that was "too restrictive" - and required to be less restrictive in order to ensure the defendant had a fair trial.

Sometimes known as "rape shield laws" Sections 274 bars the defence from using evidence which is designed to question a complainer's character or sexual history, unless an exception is granted under Section 275.

Last month more than 1000 people signed a petition calling on Holyrood to ask the Scottish Government to provide answers amid a "lack of clarity" on what is being done to implement the UK Supreme Court's judgment.

They wanted to know how many cases are potentially impacted by it, how it is affecting the prosecution of sexual offence cases, and what resources are being given to justice services to implement the ruling which found that courts north of the Border were interpreting legal provisions in such a way as to potentially undermine the accused's right to a fair trial which is enshrined in Article 6 of the European Convention on Human Rights.

The Supreme Court made the landmark ruling in November last year. (Image: Dan Kitwood)

In response to their calls, the Scottish Government told Holyrood's petition committee in a written submission published on October 12: "Whilst we have some data about the number of section 275 applications that have taken place there is no way of determining how many convicted persons, if any, would have grounds for appeal as a consequence of this judgment."

The intervention comes after documents released under freedom of information and obtained by The Herald revealed that SCCRC officials have discussed the possibility of a "class action" such as the Post Office's Horizon scandal which led to hundreds of sub postmasters successfully challenging convictions linked to faulty computer software.

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Minutes of a meeting between the SCCRC's chief executive Michael Walker and the Scottish Government's criminal justice division, held on March 11 this year to discuss the impact of the ruling, showed that the SCCRC's dealing with class actions against wrongful convictions such as the Post Office Horizon cases was discussed in light of the rape shield ruling.

"Mr Walker provided an update on the SCCRC’s consideration of applications they have received relating to the Supreme Court decision on section 274/275," said the minutes.

"Mr Walker said that previous experience of handling of ‘class’ cases such as Post Office Horizon will be helpful .'"

Minutes of the meeting showed applications had risen to 15. The SCCRC told The Herald that number has now risen to 44.

The SCCRC has said it expects the number of cases affected by the Supreme Court ruling to be "large".

The former Lord Advocate Dorothy Bain KC and former justice secretary Angela Constance last year told MSPs the ruling would lead to "disruption" to the justice system with delays to trials and appeals by convicted sex offenders.

"The Supreme Court acknowledged that its decision will cause some disruption to ongoing and upcoming sexual offence cases," Ms Bain told Holyrood's criminal justice committee last December in a written submission.

"[Crown Office and Procurator Fiscal Service] (COPFS) is taking steps to minimise this disruption, including prioritising applications and updating guidance and training for prosecutors and victim support staff.

Ms Constance also warned the committee in December last year of the prospect of delays, adjournments and appeals in sexual offence cases following the judgment.

"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.

A Scottish Government spokesperson said: “Whether any individual convicted of a sexual offence has grounds to appeal their conviction following the Supreme Court’s judgment in Keir & Daly v. HMA is something that can only be determined by the Scottish Criminal Cases Review Commission (SCCRC).”

Anyone who believes they have suffered a miscarriage of justice, for any reason, including as a result of the Supreme Court judgment, can apply to the independent Scottish Criminal Cases Review Commission (SCCRC ) to have their case referred back to the High Court for a fresh appeal. 

The SCCRC will refer a case back to the High Court if they consider that the person may have suffered a miscarriage of justice and that it is in the interests of justice for their case to be referred to the High Court.