Human Rights, Cosmopolitanism and the Scottish ‘Rape Shield’


Human Rights, Cosmopolitanism and the Scottish ‘Rape Shield’*



OVER THE LAST 30 years, many common law jurisdictions have implemented statutory provisions designed, broadly speaking, to restrict the questioning of the victims of alleged sexual offences about their sexual history or bad character in criminal trials. The purpose of enacting ‘rape shield’ legislation, as it is commonly known,1 was to dispel the ‘twin myths’ that, first, ‘unchaste women were more likely to consent to intercourse’ and, secondly, they ‘were less worthy of belief’.2 With the advent of the Human Rights Act 1998, human rights jurisprudence has become increasingly important in Scotland.3 This chapter examines the development of the Scottish rape shield against this backdrop, without, I hope, descending to a level of doctrinal detail which would interest only a Scottish reader.4 I will however suggest a way in which the implementation of the current legislation might be improved while remaining compatible with human rights requirements.


The original Scottish rape shield5 was brought into force by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, section 36, following a report by the Scottish Law Commission (SLC) in 1983.6 At that time, the attitude of the Scots legal establishment towards the ECHR was (in) famously summarised by the Lord Justice Clerk, Scotland’s second most senior judge, when he observed in Kaur that a Scottish court was not entitled to have regard to the ECHR, either as an aid to construction or for any other reason.7 These dicta came only three years before publication of the SLC report and were approved a further two years later, and were in marked contrast to the approach then being adopted in the England.8 Consequently, in discussing both the importance of maintaining adequate safeguards for accused and the need to protect complainers from distressing questioning, it is not surprising that the SLC’s report made no reference to the ECHR nor uses any terminology from the associated discourse, not even the phrases ‘human rights’ or ‘fair trial’.9 There was, however, some discussion of equivalent provisions in other jurisdictions, most notably England and Canada.10 Therefore, the SLC did not adopt an entirely parochial approach. The initial 1985 legislation was subsequently consolidated into the Criminal Procedure (Scotland) Act 1995.

A major research study published in 1992 by Brown et al11 demonstrated that, as was common elsewhere, the Scottish rape shield was not particularly effective in preventing complainers from being subjected to often embarrassing and distressing questioning. As a result, the Scottish Executive undertook further work in this area, culminating in 2000 with the publication of Redressing the Balance,12 a consultation document which canvassed options for strengthening the rape shield, as well as considering measures to prevent sexual offenders from cross-examining their victims in person.13 By this time, the Scottish legal landscape had changed dramatically. First, a new generation of Scottish judges who were much more sympathetic to the ECHR had emerged. In T, Petitioner, Lord Justice General Hope, then Scotland’s most senior judge, disapproved Lord Ross’s ‘increasingly outdated’ view in Kaur and brought the Scottish approach to the ECHR into line with that adopted in England and Wales.14 Lord Hope stated that henceforth when legislation was ambiguous, it should be interpreted in conformity with the ECHR rather than in conflict with it. After this decision, the ECHR and the jurisprudence of the European Court of Human Rights began to be cited frequently in the Scottish courts, particularly in criminal cases.15 Very soon afterwards came the Scotland Act 1998, which created a devolved Scottish Parliament and Executive (the latter now styling itself ‘Government’) and also in some respects rendered Scots law consistent with the ECHR. It was followed by the Human Rights Act 1998 (HRA) which, when fully in force, demanded ECHR compliance right across the United Kingdom. It is significant that in Scotland, the former Act has been far more significant for Scottish criminal procedure than human rights legislation.

In essence,16 it is ultra vires under the Scotland Act for the Scottish Parliament to legislate or the Scottish Executive to act in breach of the ECHR.17 Any claim that either body has done so raises what has become known as a ‘devolution issue’. There have been ‘only a handful of challenges’ to Scottish parliamentary legislation,18 two of which concerned the legality of the rape shield provisions.19 In contrast, challenges to acts of the Scottish Executive have been plentiful and, in a largely unanticipated development, many of these have been directed at ordinary, day-to-day decisions of Scottish prosecutors. This has resulted from the fact that the Lord Advocate, who is head of the prosecution service in Scotland, is a member of the Scottish Executive. Thus she, and all her subordinates within the Scottish prosecution service, must act in conformity with the ECHR at all times in the exercise of their function as prosecutors. Indeed, any human rights challenge to the actions of the Lord Advocate must be raised under the Scotland Act rather than the HRA.20 As a result, a large number of such claims have been raised in the Scottish criminal courts by accused who have argued that the prosecution has, or is about to, breach their Article 6 rights—for example, the right to silence21 or the presumption of innocence.22

Obviously, the jurisprudence of the Strasbourg-based European Court of Human Rights is critical in determining whether there has been a breach of Article 6 in such cases. Under section 2(1) of the HRA, the domestic courts in the UK must ‘take into account’ any decision of the Strasbourg Court. Scottish courts have followed the English lead and ‘will not without good reason depart from the principles laid down in a carefully considered judgment’ of the Strasbourg Court.23 In this regard, the Scottish courts do not differentiate between ‘devolution issues’ raised under the Scotland Act and HRA-based claims. Consequently, in the last 20 years the ECHR and its associated human rights jurisprudence has gone from having virtually no impact on Scottish criminal procedure to becoming the single most influential factor in the development of the law in this area. As Reed and Murdoch state in the opening sentence of their 800-page Guide to Human Rights Law in Scotland, ‘[u]ntil comparatively recently, the concept of “human rights” did not form a recognised part of the Scottish legal system’.24 It is worth noting that, in contrast to its effect on criminal procedure and evidence, the ECHR has had very little impact on substantive criminal law, which rarely gives rise to a devolution or human rights issue.25

The impact of the ECHR and associated human rights concepts on Scottish criminal procedure has been strengthened by what is viewed by many as an anomaly,26 namely, that while Scottish criminal appeals have always been determined domestically by the High Court of Justiciary, sitting in appellate mode in Edinburgh (‘the appeal court’),27 the ultimate appeal on devolution issues was originally to the Judicial Committee of the Privy Council (JCPC) in London. It now lies with the new UK Supreme Court (UKSC).28 At the time of the Scotland Act, it was anticipated that most devolution issues would revolve around disputes between the Scottish and UK Parliaments about their respective powers and other constitutional matters. The JCPC provided the most convenient vehicle for resolving this constitutional issue because, with its long-standing commonwealth jurisdiction, it was not perceived primarily as an ‘English’ (in contrast to UK) domestic court, unlike the House of Lords. In the event, however, most Scottish cases going to the JCPC (and now the UKSC) have concerned criminal procedure arising from the appeal court rather than civil matters. This was unexpected, and has aroused some resentment in Scotland because of a perception that domestic criminal law issues are now being decided by an alien court rather than domestically, upsetting settled practice since the Act of Union in 1707.29

The loss of the appeal court’s exclusive jurisdiction over Scottish criminal cases has been mitigated by the presence of two Scottish judges, Lords Hope and Rodger, on the bench of the JCPC and subsequently as members of the UKSC. Both previously held office as Lord Justice General, Scotland’s most senior judge. In the great majority of Scottish appeals which have been heard by the JCPC, the Scottish judges have given the leading opinions and their non-Scottish colleagues have concurred. Nevertheless, it is apparent even from casual scrutiny that JCPC decisions pay closer attention to the ECHR jurisprudence than decisions of the native Scottish appeal court. Lords Hope and Rodger in particular seem to have been influenced by the human rights discourse, both in Europe and further afield, to a greater extent than many of their judicial colleagues back in Scotland,30 although there are some notable exceptions.31 Thus, the impact of human rights jurisprudence on the development of Scottish criminal procedure since the turn of the century has been considerably strengthened by the largely unexpected—and, to some, unwelcome—arrival of the JCPC and, subsequently, the UKSC in this domestic arena.

In light of these institutional developments, it is not surprising that the Scottish Executive’s 2000 consultation paper Redressing the Balance addressed the human rights implications of proposed reforms of the rape shield, something the earlier SLC paper did not attempt. At the outset, the authors acknowledged the imperative of ensuring compatibility with the ECHR and then set out a series of ‘principles … intended to reflect the rights’ of the accused under Article 6 as well as those of witnesses under Article 8.32 Redressing the Balance noted that the original Canadian rape shield legislation was found to be contrary to the Canadian Charter of Rights and Freedoms by the Canadian Supreme Court in Seaboyer,33 and that this defect was addressed by granting trial judges a discretion to admit evidence of sexual history where its probative value outweighs its prejudicial effect. Observing that the Canadian Charter is very similar to the ECHR,34 the consultation paper recommended that a modified version of the revised Canadian legislation should be adopted in Scotland.35 More generally, the influence of the new human rights discourse might also be inferred from the use of the term ‘fair trial’,36 a phrase absent from the earlier SLC paper which referred instead to ‘the interests of justice’.37

This consultation exercise resulted in the Sexual Offences (Criminal Procedure) (Scotland) Act 2002, which replaced the earlier versions of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. The new provisions were part of a ‘second wave’ of rape shield legislation sweeping the world, in response to the perceived failure of most initial attempts to operate as intended.38 The Scottish Executive deliberately opted not to follow the English model,39 essentially because it was thought to be too inflexible, preferring the Canadian Criminal Code-inspired model endorsed by Redressing the Balance.40 Human rights jurisprudence has continued to influence the way in which the new legislation has been interpreted by the courts.

DS v HMA is the only rape shield case so far to have been appealed to either the JCPC or the UKSC.41 At issue here was section 275A of the 1995 Act which provides that, where a defence application to raise the complainer’s sexual history or bad character is successful, if the accused has any previous convictions for sexual offences, these will be revealed to the jury unless this would be contrary to the interests of justice. The accused claimed that section 275A was incompatible with his right to fair trial under the ECHR, and thus ultra vires the Scottish Parliament, because it unfairly hindered his ability to defend himself. The judgments of Lords Hope and Rodger are peppered with references to the leading European cases,42 and Seaboyer was also cited. The appeal was dismissed because the JCPC took the view that previous convictions for sexual offences were potentially relevant and the discretion granted to the trial judge to refuse ‘in the interests of justice’ to allow the conviction to be revealed ensured that the trial would be fair. The influence of the ECHR can be seen from the fact that, while the legislation expressly placed an onus on the accused to rebut the presumption that previous convictions should go to the jury, the JCPC utilised section 3(1) of the HRA to ‘read down’ this requirement so that the accused need only object to disclosure and the court must then consider the matter on its merits. 43

In the proceedings before the Scottish appeal court in DS, the defence placed much reliance on the European cases44 and also cited the leading Canadian case of Darrach45 and the English decision in A.46 However, in giving the decision, Lord Cullen barely mentioned the European jurisprudence,47 bearing out the general impression that the JCPC appears to be more enthusiastic about Strasbourg jurisprudence than the Scottish appeal court. On the other hand, in the other leading rape shield case, M,48 both the trial judge and the appeal court made extensive reference to the European jurisprudence as well as the leading Canadian authorities. Notably, as in DS, the accused was arguing that the Scottish Parliament had exceeded its powers because the rape shield legislation breached his Article 6 rights by restricting his right to cross-examine the complainer. This was not a routine challenge to prosecutorial decision-making, where the courts would be less inclined to embark upon systematic review of the legislation in order to assess its conformity with the ECHR. It may be significant that the same defence counsel appeared in both cases and on each occasion his arguments were rooted in the European jurisprudence.


Before examining the shield itself, it is necessary to mention three other changes brought about by the new legislation. First, as alluded to above, the accused’s previous convictions for sexual offences may be disclosed if there is a successful application to lead sexual history evidence. Obviously, this is a major innovation, particularly since Scotland has never embraced the common law ‘similar fact evidence’ doctrine.49 Secondly, the Crown, too, must now seek the permission of the court if it wishes to lead evidence or question the victim about her sexual history or bad character.50 The 1992 Brown et al study had indicated that the Crown sometimes thwarted the purpose of the old rape shield by opening up this issue.51 Additionally, the Scottish Government thought that applying the same rules to the prosecution and defence was ‘likely to look fairer’.52 Thirdly, where previously a verbal application to introduce sexual history evidence could be made to the trial judge, a written application must now be submitted in advance of the pre-trial hearing, indicating the nature of the evidence and why it is relevant to the issues at trial.53 The intention was both to force the party making the application to spell out precisely why the evidence is relevant and to focus the minds of trial judges upon the purpose of the rape shield. Applications are now considered and determined at a pre-trial hearing, although it is still open to either party to renew such an application at trial on ‘special cause shown’.54

(a) The Restriction—Section 274

The amended section 274 of the 1995 Act renders inadmissible four categories of evidence relating to the complainer’s sexual history or bad character, subject to the exception set out in section 275. First, section 274(1)(a) bans evidence that the complainer is not of ‘good character (whether in relation to sexual matters or otherwise)’. The previous rape shield had applied only to attacks on the complainer’s character ‘in relation to sexual matters’, which phrasing had failed to prevent ‘subtle character attacks’ which were designed to suggest that the complainer was of ‘easy virtue’ and thus undermine her credibility.55 In this respect, the new provision is more extensive than its Canadian counterpart which covers only ‘sexual activity’.56 Secondly, section 274(1)(b) prevents questioning about any ‘sexual behaviour not forming part of the subject matter of the charge’; this remains unchanged from its previous incarnation. In an early case, the appeal court ruled that prior cohabitation is not primarily ‘sexual’ behaviour. Further, if there were any doubt about that, it would be removed by invoking section 3 of the Human Rights Act 1998.57 In DS, the JCPC agreed with this earlier view.58 A second point is that, after some debate, the courts have determined that statements or comments made by the complainer about her sexual activities do not fall within the definition of ‘sexual behaviour’. Initially, the appeal court took the view that, in order to comply with the spirit of the legislation, such evidence should be construed as falling under section 274’s general ban.59 Shortly afterwards, the JCPC observed that the appeal court had given too wide a meaning to the word ‘behaviour’. It would be incompatible with the accused’s Article 6 right to a fair trial to prevent him from, for instance, leading evidence that the complainer had told a third party that she had consented to intercourse.60 In a subsequent case, the appeal court followed the JCPC and the law now appears settled.61 In resolving both of the above issues of interpretation, the ECHR proved a useful resource for the Scottish courts.

Thirdly, section 274(1)(c) presumptively prohibits evidence that the complainer has at any time ‘other than shortly before, at the same time as, or shortly after’ the alleged offence, ‘engaged in behaviour, not being sexual behaviour’ which might found an inference that she consented or is not a credible or reliable witness. Again, this was designed to prevent the type of backdoor character attacks which had been commonplace under the previous regime. Finally, section 274(1)(d) restricts evidence of ‘any condition or predisposition’ of the complainer which might lead to inferences of consent or lack of credibility. The intention was to cover the use of medical evidence about the complainer which does not relate directly to the alleged sexual assault.62 The meaning attached to this phrase by the courts is discussed below.

(b) The Exception—Section 275

Section 275 creates a structured discretion. Its predecessor, like the first attempts at rape shield legislation in other jurisdictions, was expressed in wide terms, allowing questioning about previous sexual history inter alia ‘to explain or rebut evidence led by the prosecution’ or where ‘it would be contrary to the interests of justice to exclude it’. Many commentators concluded that the effect of this was ‘almost to render the basic prohibition ineffective’.63 The replacement section 275 sets out a three-stage cumulative test to be applied before allowing questioning about sexual history or bad character.

First, under section 275(1)(a) the evidence must relate ‘only to a specific occurrence or occurrences of sexual or other behaviour 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’. Although never explicitly stated during the legislative process, this precondition was obviously designed to ensure that any questioning by the defence has a firm evidential base. It prevents ‘fishing expeditions’ by the defence and wide-ranging attempts to blacken the general character of the complainer which were so typical under the previous regime.64 Gotell observes that the equivalent provision in Canada has been the most effective barrier to defence requests for the complainer’s medical and similar records because such demands usually have little or no evidential basis.65 The courts were forced to insert what is now known as the ‘invisible comma’ between the words ‘other behaviour’ and ‘or specific facts’ in the statutory formula. Otherwise it would prohibit questioning the complainer about, for instance, the fact that she had consensual sexual intercourse with the accused a couple of hours before the alleged assault (unless this sheds light on her character or a condition or predisposition from which she suffers). In approving this interpretational refinement, first adopted by Lord Macfadyen in M(M),66 Lord Hope in DS observed that the ‘invisible comma’ was necessary to ensure compliance with Article 6.67

In M(M) defence counsel argued that section 275(1)(a) was contrary to the accused’s Article 6 rights because it was too restrictive. The appeal court disagreed, stating that ‘if there were to be an attack on the complainer’s character, the prejudice to her should be minimised by the exclusion of vague and general allegations’. In Lord Gill’s view, the court would in any event require the evidence to be specific under the ordinary rules of evidence.68 A more problematic issue has been the phrase ‘condition or predisposition’, which was interpreted in M as requiring something akin to a medical condition in order to be admissible.69 Subsequently, in Ronald