Independent legal representation and the victims, witnesses, and justice reform (Scotland) bill: A review of potential models of delivery

Chapter 1: Introduction to the Research

1.1 Background

The Victims, Witnesses, and Justice Reform (Scotland) Bill^[1] is a landmark piece of legislation which aims to improve the experience of victims and witnesses in the Scottish criminal justice system. The Bill forms part of a series of measures from the Scottish Government and other criminal justice stakeholders that look to provide support for such witnesses through their engagement with the criminal process.^[2] The Bill makes provision for a system of independent legal representation^[3] for complainers in sexual offences cases where an application is made to admit evidence of their character or sexual history in a criminal trial.^[4] The Bill is by design largely silent on the mechanism by which this provision will become operative. The manner in which it does so, however, will determine the efficacy of the proposed system of ILR. There are questions specific to the Scottish context in which the legislation will take effect, highlighted in related research, and aired during the consideration of the Bill at Stage 1, about the capacity of Scottish lawyers and related resourcing issues in the criminal justice system generally. These impact upon the choice of model of delivery for ILR and require to be carefully considered.^[5]

In light of the importance of these issues, in early 2024 we were awarded a grant by the Scottish Government to undertake a review of potential models of delivery for ILR in Scotland for complainers, and wider categories of witnesses, at section 275 hearings.^[6] This review investigates comparable international best practice in order to inform the implementation of ILR in Scotland.^[7]

In the remainder of this chapter, we set out the research aim and research questions in section 1.2. We then set out some key definitions in section 1.3, most importantly the distinction between Independent Legal Advice and Independent Legal Representation. In order to inform the work that follows in later chapters of the report, we outline in section 1.4 some key legal provisions, both prospective and currently in force, that are central to the proposed operation of ILR at section 275 hearings in Scotland. Finally, in section 1.5 we outline briefly some of the concerns relating to capacity and other structural issues pertaining to the Scottish criminal justice system.

1.2 Research aims

The primary aim of this research is to develop an evidence-based understanding of different models of delivery of independent legal representation in comparable adversarial legal jurisdictions and to provide a review of same in light of relevant factors pertaining to the Scottish criminal justice system.

The research addresses six specific questions as follows:

1. What are the methods of ILR delivery in the UK, Ireland and other comparable jurisdictions?

2. How are these models funded, monitored, and evaluated in these jurisdictions?

3. What procedural rules and codes of professional legal practice guide the delivery of different models?

4. What makes an effective model of ILR provision bearing in mind factors such as availability of legal professionals, specialism, training, and previous experience, and to what extent are these factors applicable in the Scottish context?

5. What is the relationship between ILR and wider criminal legal aid provision?

6. How is trauma-informed practice incorporated into the delivery of ILR?

1.3 Key definitions

1995 Act: the Criminal Procedure (Scotland) Act 1995.

The Bill: the Victims, Witnesses, and Justice Reform (Scotland) Bill, introduced into the Scottish Parliament on 25 April 2023.

Complainer: a person who, in criminal proceedings, is alleged to have been the victim of an offence charged. Some jurisdictions use the term “complainant”: in this report we use the terminology of the jurisdiction in question and “complainer” for any more general references. We note that we use the term “complainer” frequently in this report as it is the legal term referred to in relevant legislation. We acknowledge that “victim” or “survivor” are often preferred terms.

Docket witness: a person who is alleged to have been the victim of wrongdoing specified in a docket attached to an indictment or complaint in a Scottish criminal case. Dockets are a mechanism under section 288BA of the 1995 Act which allow the prosecution in sexual offence cases to give notice of their intention to lead evidence of a crime (or other behaviour) not charged. This may, for example, allow the prosecution to lead evidence of wrongdoing which cannot be the subject of prosecution because it occurred in another jurisdiction, or where prosecution is time-barred, but the evidence in question can serve as corroboration of an offence with which the accused is charged.

Dorrian Review: the work of the review group chaired by the Lord Justice Clerk, Lady Dorrian, Scotland’s second most senior judge, resulting in the report Improving the Management of Sexual Offence Cases: Final Report from the Lord Justice Clerk’s Review Group (2021), which proposed inter alia the introduction of publicly funded ILR for complainers in respect of applications to lead sexual history evidence and appeals therefrom.

Independent legal advice and independent legal representation: in both of these contexts, we use these terms to refer to services delivered by legal professionals such as solicitors, advocates or equivalent. We use “independent legal advice” to refer to services which advise complainers, for example, of the operation of the legal process and their rights within it but do not extend to the representation of the complainer in a court at a hearing where they have a right to be heard. We use “independent legal representation” to refer to services which involve (or potentially involve) in-court representation in relation to a part of the criminal process whereby the complainer is recognised as a party to proceedings. The provision of ILR inevitably entails the provision of ILA given that a legal representative will need to provide advice and information about the operation of the system, and the complainer’s rights at different stages of the process, in order to take instructions and make representations at the court hearing.

Rape shield: legislation which restricts the admissibility of evidence of a complainer’s sexual history and/or character in court is often referred to as “rape shield” legislation, notwithstanding some judicial disapproval of that term.

Sexual history evidence: evidence that the complainer in a sexual offence prosecution has engaged in sexual behaviour which does not form part of the subject matter of the charge which is being prosecuted.

We are primarily concerned with identifying and analysing comparative models that relate to ILR and advice for complainers regarding the admission of, or recovery of potential, evidence (i.e. sexual history and bad character evidence and or medical records etc.). However, our research approach is wider in scope, in order to gather data relevant to these evidential matters and better understand the interplay between more general ILA and legal representation in (or in relation to) court proceedings i.e. ILR. For this reason, schemes of ILA in comparable jurisdictions have been considered. We note that this is always in the context of considering how they may relate to the Scottish Government’s legislative commitment to the provision of ILR at section 275 hearings.

1.4 Key Scottish legal provisions and related law

In order to inform and contextualise the findings of the report it is necessary to briefly outline the key legal mechanisms, procedures and tests (both current and prospective) which regulate the admissibility of bad character and sexual history evidence in the criminal law of evidence and procedure in Scotland. The work contained here is not intended to be a comprehensive analysis and account of the substantive and adjectival law, but rather seeks to inform the reader about the basic parameters within which applications are made to admit evidence of bad character and sexual history evidence in criminal trials, such that they may better understand the analysis and discussion in later sections of the report.^[8]

1.4.1 Introduction to legal provisions

Two areas of law are relevant in the context of this research: the common law of relevancy and sections 274 and 275 of the 1995 Act. Scotland, in common with many comparable adversarial jurisdictions, has distinct evidential processes which regulate the admissibility of character and sexual history evidence of complainers in criminal trials. Contemporary legal developments in this area, arising both from the courts and from parliament, have in a general sense been aimed at protecting complainers in sexual offences trials from demeaning and insulting questioning during evidence and from attacks on their character. This, in turn, may lead to prejudicial judicial decision making relating to what are sometimes referred to in the associated literature as the ‘twin myths’; namely that promiscuity is related to credibility generally in women and that sexual activity on unrelated occasions can be used to infer consent on the occasion which features in the criminal charge.^[9] Any party wishing to lead evidence relating to a complainer’s character and/or sexual history which is prohibited by the rape shield legislation in a criminal trial for sexual offences must lodge an application with the court, within specified timescales or, if outwith these time periods on special cause shown, which outlines why the application should be permitted by reference to a series of tests, further detail of which is provided below. These applications are known as section 275 applications. The section 275 application is usually considered in advance of trial at a pre-trial administrative hearing. If the application is late and this is not possible then it is in any event always considered in the absence of the jury.

In order to comprehend how the law in this area operates, one must understand the interaction between the common law of relevancy and sections 274 and 275 of the 1995 Act, colloquially referred to as ‘the rape shield’ provisions. This understanding is necessary because the rape shield provisions cannot render evidence admissible that is inadmissible at common law, and therefore the common law of relevancy requires to be considered prior to consideration of the legislative provisions.^[10]

1.4.2 The common law of relevancy

The common law of relevancy has been described as “the touchstone” for consideration of a section 275 application.^[11] If a section 275 application seeks to lead evidence that is irrelevant at common law, then it falls to be refused outright. When a section 275 application is made, therefore, it is to the common law of relevancy that courts will turn first, prior to considering whether the application meets the requisite standards for admission in the legislation.

The determination of relevancy in any case is always fact specific and judged by reference to the connection between the proposed evidence and the specific offence libelled.^[12] Evidence that has too remote a bearing on the facts at issue is deemed to be collateral and is generally inadmissible on that basis.^[13] That said, the parameters of relevancy in sexual offences cases has changed markedly in recent years, reflecting changing societal understandings of sexual offending and the modernisation of legal responses to same.^[14] As the law currently stands, evidence of sexual activity by the complainer with the accused or others pre and post charge is prima facie irrelevant at common law and thus inadmissible unless there are particular circumstances “which would establish a connection between what the [court] will regard as, prima facie, unrelated events”.^[15] The Appeal Court has repeatedly emphasised that in general consensual sexual activity on one occasion between the accused and the complainer does not bear on the question of whether consensual sexual activity took place on the occasion specified in the charge.^[16]

1.4.3 Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995

Even if evidence is considered to be relevant at common law, section 274(1) of the 1995 Act stipulates that the following sexual history and character evidence is prima facie inadmissible in the trial of an accused individual charged with a sexual offence;

a) evidence that the complainer is not of good character (whether in relation to sexual matters or otherwise);

b) evidence that the complainer has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge;

c) evidence that the complainer has at any time – except shortly before or after acts forming the subject matter of the charge (“those acts”) – engaged in behaviour other than sexual behaviour which might found the inference that they are likely to have consented to those acts or are not credible or reliable;

d) evidence that the complainer has at any time been subject to a condition or predisposition which might found an inference that they are likely to have consented to those acts or are not credible or reliable.

A clear description of the purpose and operation of these provisions was provided by Lord Hope in the case of DS v HM Advocate:^[17]

The sections seek to balance the competing interests of the complainer, who seeks protection from the court against unduly intrusive and humiliating questioning, and the accused’s right to a fair trial. They lean towards the protection of the complainer. The protection is very wide. It extends to questions and evidence about the complainer’s sexual behaviour at any time other than that which forms part of the subject-matter of the charge. It extends also to behaviour which is not sexual behaviour at any time other than shortly before, at the same time or shortly after the acts which form part of its subject-matter which might found the inference that the complainer consented to those acts or is not a credible or reliable witness. But the court is permitted, in the accused’s interest, to admit such evidence or allow such questioning if it is satisfied that it passes the three tests which are set out in sec 275(1).

The “three tests” specified in the legislation are as follows:

(a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour,^[18] or to specific facts demonstrating:

(i) the complainer’s character; or

(ii) any condition or predisposition to which the complainer is or has been subject;

(b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged;^[19] and

(c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.^[20]

These “three tests” can accordingly be broadly categorised in the following way: ^[21]

1) Specificity: does the evidence relate to a specific occurrence or occurrences of behaviour, or to specific facts which bear on the question of character or a condition suffered by the complainer?

2) Relevance: is this evidence relevant to the facts at issue i.e. the guilt or innocence of the accused?

3) Balancing Exercise: does the probative value of the evidence outweigh the risk to the prejudice of the interests of justice?

In respect of the balancing exercise aspect of the test to be undertaken the legislation specifically directs courts that the “proper administration of justice” includes “appropriate protection of a complainer’s privacy and dignity”.^[22]

1.4.4 Procedure concerning a section 275 application

Any application under section 275 must be in writing and should clearly set out the nature of the evidence and any questioning proposed, the issues to which the evidence is considered relevant and the reasons for its relevance, and the inferences which the applicant proposes should be drawn from it.^[23] The Crown has a common law duty to ascertain a complainer’s views on a section 275 application that relates to them and to relay those views to the court.^[24]

1.4.5 Docket witnesses and section 288ba of the 1995 Act

A docket allows the Crown to lead evidence of matters related to a sexual offence on the indictment that would not be competent for the trial court to hear because, for example, the offence occurred in a jurisdiction other than Scotland. While the accused does not face any charges in respect of the matter specified on the docket, evidence led from witnesses and other sources in relation to the matter specified can be of corroborative value.^[25] The Crown’s position in respect of witnesses they cite who appear to give evidence in relation to a matter specified in a docket (such evidence inevitably relates to sexual conduct not specified in a charge) is that they require to lodge a section 275 application to permit such witnesses to give evidence. This has not always been the case but it is now the position of the Crown that section 275 applications are lodged to cover such witnesses’ evidence and we have been expressly asked to consider how a proposed system of ILR might operate in respect of such witnesses.^[26]

1.4.6 Section 64 of the Victims, Witnesses, and Justice Reform (Scotland) Bill

The Bill, following recommendations made by the Dorrian Review on Improving the Management of Sexual Offence Cases, and others, proposes a system of ILR for complainers where applications are made to lead evidence of their sexual history and character.^[27] The system proposed grants complainers in such cases a right to be heard in court in respect of whether the application should be granted or not and thus envisages the introduction of a system of ILR and not merely ILA.^[28] ILR will be available to all complainers on a non-means tested basis.^[29]

The Bill provides that where an application is made under section 275, the prosecutor must, as soon as is reasonably practicable after the application is made, notify the complainer, give them an explanation of the proposed application and the evidence and questioning proposed, and inform them of their rights to legal representation and other information.^[30] The Bill also grants complainers a right of appeal in respect of section 275 decisions that mirrors the right of appeal that an accused and the Crown has in respect of matters, prior to the determination of the case.^[31] The legislation stipulates that the complainer’s legal representative is entitled to be provided with the application, the charges against the accused and if and to the extent approved by the court, any evidence referred to in the application, or which is relevant to it.^[32] In respect of said evidence, the Bill requires the prosecutor to apply to the court in advance for authority to disclose (which the court may refuse or authorise with any such limitations that the court thinks are in the interests of justice), whilst offering the complainer’s and the accused’s legal representative an opportunity to make representations in respect of whether the court should authorise such disclosure.^[33]

1.5 Issues relating to ILR and the Scottish criminal justice system

There have been longstanding concerns expressed by professional representative bodies, some politicians, and organisations which support victims/survivors of crime about the Scottish criminal justice system’s ability to deal with the number of cases it must process.^[34] These concerns often highlight that the reporting and prosecution of sexual offences in particular is at comparatively high levels,^[35] and that in such cases, there are myriad complicated and sensitive issues arising which, as noted by the terms of reference to the Dorrian Review, may require a “clean sheet” approach to deliver “tangible improvements for complainers”.^[36]

In terms of the response from key stakeholders at Stage 1 of the Bill, the Faculty of Advocates^[37] and the Law Society of Scotland^[38] expressed support for the introduction of ILR at section 275 hearings. The Senators of the College of Justice stated that they “see the benefit”^[39] of ILR. COPFS stated that they “welcome the proposed introduction of ILR” but that “the operational requirements of the provisions as currently framed will lead to practical difficulties”.^[40] The Scottish Courts and Tribunals Service welcomed in principle the introduction of the provisions in the Bill but, like COPFS, expressed concerns over the implementation of the provisions.^[41]

The nature of what some of these practical difficulties might be were set out by stakeholders in their evidential submissions at Stage 1 of the Bill. These can be summarised as relating to three issues:

1. The impact of delay on the progression of cases by the proposed system;^[42]

2. Related technical matters pertaining to the disclosure of evidence and authorisation provisions;^[43] and

3. The availability of solicitors to undertake the work required.^[44]

These issues were explored further in the semi-structured interviews that took place with relevant Scottish stakeholders,^[45] and the information gathered in this respect was used to inform the analysis that we undertook when considering the efficacy of the various models of provision for ILR in the Scottish context.

1.6 Structure of this report

In the remainder of this report, chapter 2 outlines the project’s research methods. Chapter 3 outlines the key features of the ILA/ILR systems in the jurisdictions selected for analysis. It is based primarily on the desk-based literature review but is also informed by the semi-structured interviews. Chapters 4 to 9 provide more detailed analysis of key issues relating to ILR and are based primarily on data gathered from the semi-structured interviews. Chapter 4 discusses referral pathways; chapter 5 ILR in court hearings; chapter 6 relationships with stakeholders; chapter 7 trauma-informed practice; chapter 8 models of delivery and funding; and chapter 9 evaluation of ILR. Chapter 10 summarises our findings and sets out some conclusions.