Supreme Court rules Scottish sex trial evidence rules could breach human rights
The UK Supreme Court has issued a judgment that, it has been warned, will have ‘a profound and distressing impact on survivors of sexual violence’
Scottish courts will be forced to change considerations of evidence in sex offence trials after a Supreme Court judgment, the Law Society has said.
The UK’s highest court handed down a judgment in relation to two men convicted of sexual offences, who challenged issues around inadmissibility of evidence.
The appellants, Mr Daly and Mr Keir, were both convicted of rape and other sexual offences. They appealed, asking the Supreme Court to decide whether they received a fair trial, as required by Article 6 of the European Convention on Human Rights.
The Law Society of Scotland – which represents the legal profession north of the border – and the Faculty of Advocates intervened to highlight concerns over how certain evidence is being handled in sex offences cases.
Patricia Thom, president of the Law Society, said it was “in the public interest” to raise concerns.
On Tuesday, both appeals were dismissed and the Supreme Court found “on the facts, both Mr Daly and Mr Keir received a fair trial”.
However, it found the Scottish courts “should modify their current approach to the admission of evidence in trials for sexual offences because it is liable to infringe defendants’ rights under Article 6 of the convention”.
Five judges, Lord Reed, Lord Hodge, Lord Hamblen, Lady Rose and Lady Simler, were involved in the decision.
The Law Society had warned the decision of Scottish courts to tighten rules on admissibility of evidence meant a statutory scheme, designed by the UK and Scottish parliaments to protect complainers while also guaranteeing a fair trial, was being sidelined.
Ms Thom said many lawyers had become concerned about “accused persons being denied the right to present potentially relevant evidence at trial”, following changes in Scottish common law.
The Supreme Court found Scottish rules on evidence “is liable to result in violations of the rights of the accused under Article 6”.
The judgment said: “The evidence in question concerned the credibility or previous sexual behaviour of the complainers. The principal question, which this court has to decide, is whether because the evidence was considered to be inadmissible, the criminal proceedings against the appellants infringed their right to a fair trial.
“As the inadmissibility of the evidence followed from the application of the relevant principles of the law of evidence, as they have recently been developed by the High Court of Justiciary in its capacity as an appeal court, the appeals also raise the broader question whether those principles are compatible with the Article 6 right to a fair trial of persons accused of sexual offences.”
It concluded the common law of Scotland in relation to the admissibility of evidence in sexual offences cases “is liable to result in violations of the rights of the accused under Article 6”.
Ms Thom said: “This is a profoundly important judgment and one that goes to the very core of the right to a fair trial. It will clearly require a change in how Scottish courts handle certain types of evidence in sexual offence cases.
“Scotland has worked hard to ensure that complainers are protected from unjustified intrusive questioning, while also upholding the accused’s right to present a full and proper defence.
“That balance was carefully set out in legislation passed by the UK and Scottish parliaments and approved by both our highest courts and the European Court of Human Rights.”
She continued: “Scottish courts will need to revise their approach in these cases and return to the system agreed by the UK and Scottish parliaments, giving trial judges greater discretion to decide what questions may or may not be asked.”
Rape Crisis Scotland was also an intervener, and chief executive Sandy Brindley said: “We are pleased that the Supreme Court has rejected both individual appeals before it, ruling that inadmissible evidence did not prevent either person from receiving a fair trial.
“The judgment also makes it clear that not all sexual history and character evidence should be admissible.
“The wider implications of this ruling will have a profound and distressing impact on survivors of sexual violence who now find themselves in an incredibly uncertain position. There is a lot of work within the criminal justice system that needs to happen urgently which must ensure concerns are addressed.
“Protecting women in rape cases from irrelevant and humiliating questioning has a difficult history in Scotland. We only need to look back five years to find an instance of a complainer in a rape case being asked 11 different questions on what she was wearing immediately prior to and during the incident.
“The Supreme Court judgment cannot mean a return to the days where women are allowed to be routinely subjected to this type of questioning.”