The Scottish “Rape Shield”: As Good as it Gets?

The purpose of this article is primarily to analyse in detail the operation of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. These create what is often known as a “rape shield”¹1

I will use this phrase as a convenient abbreviation despite the fact that in the Scottish case of MM v HM Advocate 2004 SCCR 658 (reported sub nom Moir v HM Advocate 2005 JC 102 but without Lord Macfadyen's opinion), Lord Macfadyen (at first instance) indicated at para 13 that he did not like the term, agreeing with McLachlin J's disapproval of the phrase in the influential Canadian case of R v Seaboyer (1991) 83 DLR (4^th) 193 at 258e. Additionally, I shall refer to “rape” trials throughout, rather than sexual offence trials more generally, because it is in the former that the issue of sexual history is most likely to emerge owing to the frequent use of the consent defence. However, many of my comments will also apply to the trial of other sexual offences.

Following recommendations by the Scottish Law Commission, a Scottish rape shield was first brought into force in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which was consolidated into the Criminal Procedure (Scotland) Act 1995. A major research project published in 1992 (henceforth “the 1992 study”) demonstrated that, as was common elsewhere, this legislation was not proving effective.⁴4

B Brown et al, Sexual History and Sexual Character Evidence in Scottish Criminal Trials (1992).

As we shall see, the Scottish Government deliberately opted not to follow the English legislation,⁷7

Youth Justice and Criminal Evidence Act 1999 s 41.

Before turning to my main task of analysing the substance of the Scottish rape shield, it is useful briefly to discuss a number of preliminary issues. First, under the 2002 revisions, the Crown must now seek the permission of the court if it wishes to lead evidence or question the complainer about her sexual history or bad character, whereas previously only the defence had to apply to raise such matters.⁹9

Mulligan v HM Advocate [2008] HCJAC 32, 2008 JC 379 is an interesting recent case because it was the trial judge who first made reference to the complainer's sexual history (in order to forestall a misleading line of questioning by the defence). An appeal was refused.

Secondly, where previously a verbal application could be made to the trial judge to allow otherwise forbidden evidence or questioning immediately before raising such a matter, the party wishing to elicit the evidence must now submit a written application in advance of the trial spelling out the nature of the evidence and why it is relevant to the issues at trial. The intention was both to force the party making the application to spell out precisely why the questioning or evidence is regarded as relevant to an issue at trial and to focus the mind of the judge upon the purpose of the rape shield.¹¹11

Section 275(3) of the 1995 Act lists six subjects which must be covered in such an application. The nature of the information required is discussed by Lord Brodie in HM Advocate v MA [2007] HCJ 15, 2008 SCL 296 at paras 7–12.

Thirdly, under section 275A, if a defence application to raise the complainer's sexual history or bad character is successful, any previous convictions of the accused for sexual offences will be revealed to the jury, unless this is contrary to the interests of justice. While this is an extremely interesting innovation, it is not pertinent to the present article because it does not affect the scope of the rape shield but rather raises a tactical issue for the accused.¹⁴14

For discussion of section 275A, see P Duff, “Similar facts evidence in Scots law?” (2008) 12 EdinLR 121, which deals with the decision in DS v HM Advocate [2007] UKPC D1, 2007 SC (PC) 1 that this provision does not breach the accused's article 6 rights.

Finally, there seems be a little uncertainty as to whether a judge's decision to allow questioning or evidence under the exception is an exercise of judicial discretion or a matter of law. Under the original legislation, the appeal court in Bremner appeared to favour...