We are testing a new beta website for gov.scot go to new site

Research Briefing June 2006: The Law of Evidence in Sexual Offence Trials

DescriptionInitial findings from phase one of the research, mapping High Court sexual offence cases from June 2004 to May 2005.
Official Print Publication Date
Website Publication DateDecember 01, 2006


Version also available in PDF (259kb)



The 2002 Act

Mapping cases since the 2002 Act



This research briefing provides initial findings from the first phase of an evaluation of the impact of changes to the law of evidence in sexual offence trials. These findings are based upon a mapping exercise, which identified all sexual offence cases in the High Court from June 2004 to May 2005. This is only one element of the research project, in which the researchers are also examining information from taped proceedings for cases between June 2004 and May 2005, observing sexual offence trials (since February 2006) and conducting interviews with legal professionals and complainers. The data in this briefing is subject to continual cross-checking until submission of the final report, and should be considered preliminary and provisional at this stage.

In November 2000, the Scottish Executive issued a consultation paper, Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials seeking views on proposals to change the law of evidence in sexual offence trials in order to:

a) prevent the accused in such cases from personally cross- examining the complainer, that is, the person giving testimony as the victim of the sexual offence with which the accused is charged, and

b) to strengthen the restrictions on the use of evidence about the sexual history and sexual character of the complainer.

The Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 ('the 2002 Act') followed, implementing these proposals on 1st November 2002. This briefing focuses on the initial findings of the evaluation of the restriction in the use of evidence. The paper draws on the first phase of research commissioned by the Scottish Executive and a baseline study of the use of sexual history and sexual character evidence before the law was changed (Burman et al., 2005).

<Top of Page>


The evaluation of the operation of the new provisions regarding the law of evidence in rape and other sexual offence trials contained within the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 was commissioned to Michele Burman (Glasgow University) and Lynn Jamieson (Edinburgh University) in September 2005 and is due to report in early 2007.

In order to facilitate this work, a prior baseline study was completed which collected data on sex offence cases which took place in the High Courts and the Sheriff Courts in the 3 years preceding the implementation of the 2002 Act. The base-line report provided a comparative starting point for an evaluation of the effectiveness of the provisions of the 2002 Act, providing a picture of how legislation to protect complainers in rape and other sexual offence trials was being applied before the change. The research on the operation of the new provisions contained within the 2002 Act similarly seeks evidence to evaluate their impact on the operation of sexual offence trials. This project is one part of a wider stream of work and the intention is that it will feed into reviews undertaken by the Crown Office and Procurator Fiscal Service (COPFS) and the Scottish Law Commission in this area.

There have been long-standing concerns about the relevance and admissibility of evidence concerning a complainer's sexual history and character in sexual offence trials [1]. Restrictions were placed on the use of such evidence in sexual offence trials for the first time in Scotland in 1986. This legislation took the form of a general prohibition on the defence introducing any sexual history or sexual character evidence concerning a complainer that was not the subject matter of the charge. It also specified a set of exceptions to which the defence could appeal in making an application to the Court to have the prohibition lifted. The Crown was exempt from these restrictions. The aim was to minimise undue questioning of complainers about their sexual life, while continuing to admit all the evidence necessary for justice to be done to the accused. The legislation attracted early criticism. Some legal commentators found it too open to interpretation to be effective (Field, 1988) and this was largely supported by subsequent research (Brown et al., 1992, 1993). One concern was that the legislation did not require consideration of the relevance of the evidence the defence sought to introduce to the charges libelled and the guilt of the accused. Questions of weak relevance to key matters in the trial, yet with much potential for connotations of sexual immorality or sexual 'bad' character, could be introduced, sometimes also explicitly suggesting the complainer had a tendency to consent to sexual acts. The 2002 Act sought to rectify the perceived deficiencies of the earlier legislation and to strike a balance between protecting the complainer from indignity and humiliating questions, and admitting evidence which is nevertheless so relevant that to exclude it would endanger the fairness of the trial.

<Top of Page>

The 2002 Act

Under the 2002 Act, the prohibition has been extended to apply to evidence that the complainer is 'not of good character (whether in relation to sexual matters or otherwise)'. As well as prohibiting evidence of the complainer's sexual behaviour outside the subject matter of the charge, it also prohibits any other behaviour (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), that might found the inference that the complainer is 'likely to have consented to those acts' or 'is not a credible or reliable witness'. Moreover, the prohibition applies to the prosecution as well as the defence. Like the previous legislation, the act lists a set of exceptions but only allowing specific facts or occurrences of sexual or other behaviour demonstrating the complainer's character, condition or predisposition. In addition, such facts or occurrences must be relevant to establishing whether the accused is guilty as charged and also must have a probative value that is both significant and 'likely to outweigh any risk of prejudice to the proper administration of justice'. Further, it is indicated that this consideration of justice must include taking account of a complainer's dignity and privacy.

The 2002 Act also radically altered the procedures for making an application to the Court to admit evidence or allow questioning in spite of the prohibition. It is now necessary that such an application, whether by the Crown or the defence, be made in writing, and normally 14 days before the trial commences, allowing prosecution and defence to have advance notice of applications by the other. Further, under the new provisions, if the defence of consent is to be employed, then this intention must also be made clear prior to the beginning of a trial.

If the defence succeeds in an application to introduce evidence about, or questioning of, the complainer which otherwise would be prohibited, then the legislation indicates 'the prosecutor shall forthwith place before the presiding judge any previous relevant convictions of the accused'. If there are no legitimate objections, then an accused with convictions for analogous previous serious sexual offences may, in these circumstances, have these convictions disclosed to the Court.

<Top of Page>

Mapping cases since the 2002 Act

The first phase of the study entailed mapping all High Court sexual offence cases called in a twelve-month period after the introduction of the 2002 Act. Key details were recorded including criminal charges, type of plea, numbers of accused, intimations of defence of consent, and applications to introduce the evidence prohibited under s274/5 of the act (s274/5 applications). It is important to note that all figures given here are provisional as cross referencing of the data continues until the end of the study. Identifying relevant sexual offence cases was facilitated by the assistance of the High Court personnel and the use of the relatively new electronic record keeping system, the High Court Management System (HCMS). Scrutinising the Books of Adjournal, and, sometimes, the case sitting papers was also necessary.

In the chosen period, 1 June 2004 to 31 May 2005, 233 High Court cases were called. Of these cases 39 per cent of accused pled guilty and 55 per cent proceeded to trial. In a small proportion, the accused failed to appear or the case was deserted.

Defence of consent

A defence of consent was intimated in almost half of the cases which went to trial, and in at least three quarters of the trials involving a single charge of rape. Although notice of consent was not required prior to this legislation, detailed study of a sample of cases undertaken as part of a baseline study of sexual offences prior to the 2002 Act suggests that this is not a significant change. A defence of consent was deployed in about 40% of High Court cases subjected to detailed scrutiny in the baseline study.

Increase in applications

It is possible to compare the emergent picture with the findings of the baseline study of sexual offence cases heard prior to the 2002 Act. As Table 1 shows, the proportion of sexual offence cases proceeding to trial does not differ greatly pre and post 2002. However, the proportion of trials involving an application has increased from 21 per cent to 70 per cent subsequent to the 2002 changes. This would suggest the majority of sexual offence trials taking place in the High Court now involve an application.

Table 1: High Court Sexual Offence Cases, 1995 and 2002 Acts

1995 Act

annual average based on

01.01.99 -31.12.01

2002 Act

01.06.04 - 31.05.05

Cases called






Trials with applications


(21% of all trials)


(70% of all trials)

Charges and applications

The balance of charges in the High Court has shifted somewhat between the two periods. From Table 2 it can be seen that the proportion of High Court trials involving applications has substantially increased across all types of charges. Before the 2002 Act, there were applications in 24 per cent of trials involving either a single charge of rape or a single charge of clandestine injury (sexual intercourse with a woman who is unconscious and without her consent) and 26 per cent of trials with multiple charges involving rape or clandestine injury. After 2002, the equivalent figures were 75 per cent for trials with a single charge of rape (which now include cases previously charged as clandestine injury) and 73 per cent of trials with multiple charges including rape. For other sexual offences heard in the High Court, 14 per cent of trials involved an application before the 2002 Act and 56 per cent after the 2002 Act.

Table 2: High Court Trials, Charges and Applications, 1995 and 2002 Acts

1995 Act

1st Jan 1999-31st Dec 2001

2002 Act

1st Jun 2004 - 31st May 2005

Number and % of all sexual offence trials by charge

Applications as a % of trials by charge

Number and % of all sexual offence trials by charge

Applications as a % of trials by charge

Single charge of rape or clandestine injury*

(167 trials

Annual average 56)






Multiple sexual charges including rape or clandestine injury

(58 trials Annual average 19)






Non-rape charges (e.g. attempted rape, indecent assault, lewd and libidinous behaviour, sodomy)

(88 trials

Annual average 29 )






All sexual charges

(313 trials Annual average 104)






Notes to table
includes three cases of rape and murder. These are excluded from the base figure in calculating the percentage involving applications. Clandestine injury is no longer an offence under Scots law; since 2001 those acts which would have been charged as clandestine injury are now charged as rape.

Cases involving multiple applications

The proportion of cases involving multiple applications has more than doubled post-2002, as Table 3 shows. Whereas pre-2002 just eight out of 66 trials (or 12%) involved more than one application, this has risen to 24 out of 90 trials (or 27%) post-2002.

Outcome of applications

Outcomes of applications are given in Table 3. A higher proportion of applications were allowed in full under the 2002 Act, that is, 72 per cent compared to 63 per cent under the 1995 Act. A lower proportion were partially allowed, 17 per cent as compared to 29 per cent under the 1995 Act. The same proportion (7%) were refused.

At this stage of the research, no examples have been found of applications resulting in relevant previous convictions of the accused being put before the Court.

Table 3: Results of Applications, 1995 and 2002 Acts

No of Trials

Trials with Applications

Total no. of applications


Results of Applications

Allowed in Full

Allowed in Part




1995 Act01.01.99





21% of trials contained applications


8 trials with more than one application









2002 Act






70% of trials contained applications


24 trials with more than one application









Table 4: Who Made Application, 2002 Act

Crown Only



Defence Only



Crown and Defence






Reasons for and consequences of the increase in applications

From the first stage of the evaluation, it would seem that very little of the increase in applications was simply the result of the activities of the Crown who, under the 2002 Act are now required to make an application to introduce restricted evidence. Table 4 shows that in three quarters of trials with applications (74%) the sole applicant was the defence, and in 18 percent of such trials (separate) applications were made by both the Crown and the defence. In just 8 per cent of application trials, the application was made solely by the Crown.

The 2002 Act has widened the requirement to make an application and this now includes evidence about non-sexual character and non-sexual behaviour intended to show that the complainer was either likely to consent or not a credible witness. Scrutiny of the details of applications indicates that in trials involving a single charge of rape, around 45 per cent of applications seek permission to introduce questions about the character of the complainer that are not about sexual matters. Questions about general character are not increasing the number of applications as much as the figure of 45% suggests. Many applications seeking to introduce character evidence also sought to introduce sexual matters. Moreover, preliminary analysis suggests that questions about general character were more likely to be refused. Additional work will be undertaken to explore this issue further.

It is not certain whether the increase in applications reflects an increase in complainers being asked about their character and behaviour; any conclusions on this must be considered as tentative and provisional. In addition, the practice of putting questions to a complainer that raise issues about her or his character happened prior to the 2002 Act without the necessity of an application. Therefore, it will be difficult to know if there is any absolute increase in such questioning.

<Top of Page>


Brown, B., Burman, M. and Jamieson, L. (1992) Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials, Scottish Office Central Research Unit Paper.

Brown, B., Burman, M. and Jamieson, L. (1993) Sex Crimes on Trial: The Use of Sexual Evidence in Scottish Courts, Edinburgh University Press.

Burman, M., Jamieson L., Nicholson, J. (with Cartmel, F.) (2005) The Law of Evidence in Sexual Offence Trials: A Baseline Study, Scottish Executive. http://www.scotland.gov.uk/Publications/2005/09/13144738/47390

Field, D. (1988) The Law of Evidence in Scotland, Edinburgh: W. Green and Son.

Scottish Law Commission (1983) Evidence: Report on Evidence in Cases of Rape and Other Sexual Offences.

Scottish Executive (2000) Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials.


<Top of Page>

[1] For a discussion of the earlier history of reform see Brown et al., 1993, chap. 1.

<Top of Page>