Supreme Court asked to issue guidance to Scottish judges

The Herald Scotland

27-07-2025

Speaking to The Herald, criminal defence advocate Mr Lenehan said new guidance from the Supreme Court would be "welcomed".
He said: 'Clear guidance from the Supreme Court would be welcomed by practitioners.
"Guidance which respects the intelligence of juries to assess the value of evidence within the confines of each case, and provides an accessible instruction to judges and practitioners alike to ensure the ideal balance is found between the rights of the accused and respect for the privacy and dignity of vulnerable complainers when admitting sensitive evidence.'
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Earlier this month fellow advocate Thomas Leonard Ross KC raised his concerns with The Herald that he believed some men accused of sexual offences were not getting a fair trial because of how courts were understanding rules relating to the admissibility of evidence in sexual offence trials.
He told The Herald that victims had told lies about matters relating to a case yet the defence had been stopped from putting that situation to the jury.
"How can it be said that someone has had a fair trial when it's been proved that the complainer lied about something important in the course of the inquiry and that was not allowed to be introduced as evidence?" he said.
"There are serious concerns that people are not getting a fair trial when they are not being given the opportunity to provide evidence which might support their innocence".
Tony Lenehan KC, vice dean of the Faculty of Advocates (Image: Contributor) The debate revolves around what evidence is allowed to be heard in open court before a jury.
Known as "rape shield" laws, specific provisions to regulate the use of sexual history evidence were first introduced in Scotland by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and were designed primarily to protect rape complainers' privacy and dignity.
The provisions were later repeated in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. In response to concerns about their operation, the provisions in the 1995 Act were replaced by new sections 274 and 275 in 2002.
Sections 274 and 275 of the 1995 Act were intended to protect complainers in sexual offence trials from inappropriate questioning about their sexual history and wider character and lifestyle when giving evidence in court.
Rape shield laws were designed to protect rape victims' privacy and dignity (Image: PA) In particular, they were intended to discourage the use of evidence seen as of limited relevance, where the primary purpose of the evidence is to undermine the credibility of the complainer or divert attention from the issues that require to be determined at trial.
Defence lawyers can make an application to the court for certain evidence regarded as inadmissible to be heard.
But to succeed they must demonstrate when they make the application that not just that the evidence is relevant, but that its relevance is so great that it outweighs the intrusion it represents into the privacy and dignity of the affected complainer.
"That's the balancing exercise which goes awry sometimes, in the view of many lawyers," said Mr Lenehan.
Mr Ross had said in some cases the way rules allowing only evidence that is "relevant" to the charge to be heard have been too narrowly interpreted meaning evidence that a jury may have seen as significant was not allowed to be heard by them.
Thomas Leonard Ross KC raised concerns over the operation of rape shield laws (Image: PA) Mr Lenehan said: "There is absolutely no question that a robust rape shield is vital...But there just seems to be fairly broad views that there were risks attached to the ever narrowing of rules around the admissibility of evidence.
"Sometimes I find it hard to explain to an accused person who is asking me 'I don't understand why I can't tell the jury that.'"
Mr Lenehan said his concerns did not go as far as those expressed by Mr Ross arguing that the problematic cases were "outliers'.
"I don't think you can say there is a whole scale difficulty. That is not the view that I've got," he said.
"But I am aware that there is widespread concern. What is at the core of my concern is that we undervalue jurors' intelligence when we apply these increasing limits to what they can and what they can't know.
"Part of the issue just now is that we don't accord enough respect to the intellect of juries. I worry about that and I worry that there have been decisions that seemed to me to remove from the jury things that the jury would have found relevant to their considerations."
Rape Crisis Scotland chief executive Sandy Brindley said: 'Robust implementation of the current protection for complainers in relation to defence using their sexual history or character is essential.
"This evidence is highly prejudicial, often designed to appeal to any prejudice jury members might have around women's behaviour.
"Polling published earlier this month found 47% of Scottish adults believe in at least one rape myth – this could be the idea that people cannot be raped by someone they are in a relationship with, or that rape always involves violence.
"The prospect of their sexual history or character being introduced in court is extremely distressing and often prevents women from feeling able to report what has happened to them to the police.
'Seeking justice for rape shouldn't mean having to be subjected to irrelevant and distressing questioning.
"Numerous cases of sexual violence have highlighted the need for the senior judges to act. Cases like Macdonald in 2020, where during cross-examination a young woman was asked 12 different questions about showering with her female friend the night of the incident, 11 questions on what she was wearing immediately prior to and during the incident, and repeated reference to the type of underwear she was wearing. It is unacceptable that women are being treated like this.
'The conviction rate in rape cases with one complainer in Scotland is 24%, compared to an overall crime conviction rate of 86%. There are absolutely miscarriages of justice happening in rape cases – however, the issue here is not men being wrongly convicted. It is women routinely being denied justice, and rapists regularly walking free.'
A spokesman for the Scottish Courts and Tribunal Service said it did not want to comment on Mr Lenehan's remarks.
A Scottish Government spokeswoman said: 'Everyone has the right to a fair trial and to appeal against a conviction or sentence. There are well-established rules on what evidence can be led in sexual offences trials, and clear routes to challenge how these are applied.'