Dorothy Bain KC

It recommends that staff within COPFS have mandatory training supported by updated guidance, and that complainers are kept better informed and involved in developments.

The report from HM Inspectorate of Prosecution in Scotland (IPS) recognises this is a complex area of the law which prosecutors, defence counsel and judges find challenging.

“They, nonetheless, share a strong desire to ensure complainers are not subject to inappropriate or unnecessary intrusions upon their dignity and privacy,” says Laura Paton, HM chief inspector of prosecution in Scotland.

The report assesses the practice of COPFS in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, which regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials and which are designed to protect them from irrelevant and often distressing questioning when giving evidence.

Section 274 is a general rule that evidence or questioning of this nature is not admissible in sexual offences cases. If the prosecution and defence want to lead such evidence, they must make a section 275 application to the court which should detail the information expected to be made known and why it is relevant to the case.

IPS makes nine recommendations, eight of which are for COPFS and one which is directed at the Scottish government. When implemented, they aim to support improvements to the way in which COPFS engages with complainers and how it makes and responds to section 275 applications.

Ms Paton commends COPFS for responding promptly to developments in case law which have led to a shift in practice regarding how section 275 applications are managed. She also notes that COPFS has already begun to address the report’s recommendations.

“We found the quality of Crown applications to be generally good, and they usually opposed applications made by the defence when it was appropriate to so do. However, there remains scope for further improvement,” she said. “The Crown has already begun to address the report’s recommendations by publishing new
guidance, but more work is needed to make sure policies and guidance are effectively implemented.”

COPFS is required to notify complainers of section 275 applications and precognosce them on the application’s contents. This must often be done in a very short timeframe, meaning complainers can feel under pressure to give their views quickly.

Ms Paton said: “Complainers are now regularly told about section 275 applications, asked their views on the applications’ contents, and those views are presented by the Crown to the court. However, more can be done to ensure complainers are spoken to about section 275 applications in a sensitive, trauma-informed and complainer-led way.”

The inspection also found there was scope for the Crown to draft and lodge section 275 applications at an earlier stage, and for the Crown to improve its record keeping.

The Lord Advocate, Dorothy Bain KC, said: “I am grateful to the Inspectorate for doing such a thorough piece of work on this important topic. It is a priority for all prosecutors that complainers are treated with dignity and respect, and that they are not subjected to inappropriate questioning during a trial.

“The observations and recommendations made in relation to engagement with complainers are of particular interest to me. COPFS is committed to improving the experience of complainers in serious sexual offence cases, both in enhancing its own processes, for example through their ongoing review of its Victim Information and Advice function, and in working with partners across the criminal justice sector.

“I was pleased to see that the Inspectorate noted that Crown applications under this section of law were generally good and that it has developed its practices. However, there remains improvement work to be done, and I have instructed that this is taken forward as a matter of urgency.”

Procurator fiscal Fraser Gibson, who leads on High Court sexual offence prosecutions, added: “This is a challenging area of work and COPFS has responded swiftly to developments in case law, issuing new instructions to staff and creating a training course dedicated to sexual history and character evidence. This has led to a significant shift in practice regarding how section 275 applications are managed.

“We will continue to seek to make improvements and welcome the contribution the inspection report makes to this work.”