Criminal Procedure (Scotland) Act 1995 - sections 274 and 275: inspection of COPFS practice

Key findings

There is a lack of data about section 275 applications. This limits the ability of COPFS to use data to inform policy and practice development. However, recently introduced processes may help address the absence of data, at least in part.

In a review of a sample of 123 High Court sexual crime cases in which 238 section 275 applications had been made, 38% of applications were made by the Crown and 62% by the defence. 78% of all applications were granted in full or in part.

Inadequate record keeping hampered the ability of COPFS personnel to manage their cases as effectively as possible.

In response to developments in case law regarding sexual history and character evidence, COPFS developed or revised and promptly published operational instructions to staff. The significance of key judgments and their impact on the Crown's approach to sections 274 and 275 were communicated quickly and clearly to staff.

Staff awareness of the key operational instruction on sexual history and character evidence was good, but staff were less aware of more detailed procedural requirements that were added to later versions of the instruction.

While operational instructions regarding the latest requirements were issued, the Crown's primary resource on prosecuting sexual crime had not yet been updated at the time of our inspection. This risked staff following out-of-date guidance.

A bespoke training course on sexual history and character evidence has been created by COPFS and is available to a range of staff. There is a need to accelerate the rollout of this training to all those who regularly make or respond to section 275 applications.

Staff who had attended the training found it useful, but some would welcome a more operational focus on managing section 275 applications and engaging with complainers as part of their training.

COPFS should give greater consideration to how it ensures policy and guidance are effectively implemented.

There is scope for the need for Crown section 275 applications to be identified and for applications to be drafted at an earlier stage in the preparation of cases. There is also scope for Crown applications to be lodged at an earlier stage, ideally with the indictment.

The quality of Crown section 275 applications is generally good. Most applications are focused and do not seek to lead any more evidence about sexual history or character than is strictly necessary. 85% of Crown applications we reviewed were granted either in full or in part.

In the cases we reviewed, the Crown generally opposed applications made by the defence when it was appropriate to do so. The Crown opposed more applications, or more parts of applications, than were refused by the court. 47% of defence applications were opposed by the Crown in full or in part.

It is essential that defence section 275 applications intimated to the Crown are shared with relevant personnel as soon as possible. The processes for doing so could be improved.

There has been a significant shift in practice in how section 275 applications are managed by the Crown in respect of complainers following RR v HMA. Complainers are now regularly told about section 275 applications and asked their views on the applications' contents.

However, further procedural requirements relating to engagement with the complainer are not yet being routinely implemented. Reasons for this include low awareness of certain requirements and the often limited timescales in which the duty of engagement must be carried out.

Staff would benefit from guidance on the circumstances in which it is not appropriate to engage a complainer about a section 275 application.

The timescales within which COPFS is required to engage with complainers about section 275 applications are often short. This affects how complainers are contacted, how precognitions are conducted and how much time complainers have to consider their position. The short timescales risk complainers being approached in a way which is not sensitive to their needs, supportive or trauma-informed.

The manner in which precognitions about section 275 applications take place should be complainer-led. Complainers should be routinely informed that they are able to have an advocacy worker or other supporter present.

Too often, complainers are not being told the outcome of section 275 applications made about them. They are also not routinely being advised by COPFS of the likely outcome of applications.

Overall, we assessed that the quality of engagement with complainers about section 275 applications was good for 43% of the complainers who were the subject of applications we reviewed. The quality of engagement was reasonable for a further 38% of complainers, but unsatisfactory in respect of 19% of complainers.