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The Herald Scotland
23-07-2025
- The Herald Scotland
Scotland's rape laws risk breaching ECHR say top lawyers
Earlier this month top criminal defence advocate Thomas Leonard Ross KC raised his concerns that some men accused of rape and sexual assault were not getting a fair trial because of how courts were understanding rules relating to the admissibility of evidence. He told The Herald that victims had told lies about matters relating to the case yet the defence had been stopped from putting that situation to the jury. READ MORE: "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 told The Herald. "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". The situation revolves around what evidence is allowed to be heard in open court before a jury. Sometimes 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. Criminal defence advocate Thomas Leonard Ross KC (Image: Ryan McNamara) These 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. They are designed to protect complainers giving evidence from irrelevant, intrusive and often distressing questioning. 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. In particular, they were designed 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. Now it has emerged that the Faculty of Advocates and the Law Society of Scotland have also raised concerns, arguing the way rules allowing only evidence that is only "relevant" to the charge to be heard have been too narrowly interpreted in two recent cases undermining the accused rights to a fair trial and hence breaching Article 6 of the European Convention of Human Rights. Roddy Dunlop KC and Claire Mitchell KC were responsible for the Faculty's input and David Welsh and Stuart Munro for the the Law Society of Scotland's. Dean of the Faculty of Advocates Roddy Dunlop KC (Image: Contributed) The parties are referred to as "interveners" and the arguments were made in a submission to the Supreme Court in connection with the cases of Andrew Keir and David Daly, convicted of rape in October and December 2022 respectively. Both lost appeals against their convictions in Scotland and have taken their fight to the Supreme Court. Their cases were heard in the Supreme Court last year, and the court is still awaiting judgment in both cases. In its submission to the Supreme Court, the Faculty of Advocates and the Law Society of Scotland urged the court to find that the "the balance has become so skewed as to involve a real risk of breach of Article 6" in both Keir's and Daly's cases. It argued that by preventing certain evidence which would favour the defence being heard, the court had undermined the accused ability to test the prosecution's case and allow the jury to understand the full context of the events at the centre of the trial. It stated that the "interveners accept and support the basic proposition that a version of the statutory scheme in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 is appropriate and necessary." It added: "It is vital that complainers are able to give evidence free from intrusive or inappropriate questions which are not relevant to the issues relevant to the jury's consideration, and are not put off from reporting crimes because of a fear that they will be subject to humiliation before a jury." However they went on to question that the issue of what was regarded as "relevant" evidence was being understood too restrictively. "The approach of the courts has been to infringe on an area into which Parliament has chosen to legislate," the submission said. "The overall effect of the foregoing creates a risk of the accused being denied a proper opportunity to present his defence at trial, with the consequence that the procedure is so unfair as to be incompatible with Article 6 ECHR." It added: "The overarching conclusion that the interveners invite this court to reach in these appeals is that the interpretation by the Scottish courts of the statutory definition of rape – and therefore the scope of relevant evidence for a rape trial – has gone so wrong that it has upset the balance of fairness between a complainer and an accused. "The interveners respectfully invite this court to determine that the balance has become so skewed as to involve a real risk of breach of Article 6." It concluded: "The interveners, for the reasons set out above, submit that the overly-restrictive interpretation of relevancy for the purposes of sexual offences has resulted in an undermining of the statutory scheme. The effect of that undermining is, in effect, to remove from an accused the ability properly to (i) test the case made against him, and (ii) place before the jury the full context in which the actions took place. "The overall effect, therefore, is to create a situation in which the procedure is potentially (and dependent on the precise facts of the case) unfair as to amount to a breach of the accused's Article 6 right to a fair trial. The State is under an obligation not only to protect the complainer (which is an important factor), but is also under an obligation to make sure those protections do not undermine the fairness of the proceedings in relation to the accused. The balance at the moment has not been struck fairly for the accused who is put at a distinct disadvantage in a trial when accused of a sexual offence." Reflecting on the submission Stuart Munro, convener of the Law Society's Criminal Law Committee told The Herald last night: "It is widely accepted that cases involving allegations of sexual violence require special rules to limit the admissibility of evidence about a complainer's character or sexual history. "It is vital that complainers are able to give evidence free from intrusive or inappropriate questions which are not relevant to the issues before the jury, and are not deterred from reporting crimes because of a fear that will happen. "However, a very careful balance has to be struck to ensure that those accused of crime are able to advance their defence and have a fair trial. We are concerned that some recent decisions of the Scottish courts may have resulted in accused people not being able to fully test the case against them and created a situation where juries may be unaware of the full context in which events are said to have taken place. The Law Society and the Faculty of Advocates recently intervened to highlight these concerns in a Supreme Court appeal, and we are now awaiting the court's decision." A spokeswoman for the Scottish Courts and Tribunals Service said it would be inappropriate for the Judicial Office to comment on any ongoing proceedings.
Daily Mail
12-06-2025
- Politics
- Daily Mail
Sheku judge accused of 'torpedoing' his own independence amid private meetings with the victim's family
An inquiry judge has 'torpedoed' his own independence with the 'spectacularly ill-advised' decision to meet with the family of a man who died in police custody, it has been claimed. The Sheku Bayoh Inquiry has been plunged into crisis amid an extraordinary bias row involving chairman Lord Bracadale, who held five private meetings with the family of the 31-year-old after he died being restrained by officers in Kirkcaldy, Fife, nearly a decade ago. The Scottish Police Federation and the officers at the centre of the probe have now demanded Lord Bracadale step down as inquiry chairman. But the retired High Court judge, who chaired a hearing into his own conduct, claimed that Mr Bayoh's family would have 'walked out' had he not met them. The landmark statutory inquiry - which began in November 2020 and is nearing its closing stages - aims to find out whether racism played a part in the death of the father-of-two in 2015. But the future of the chairman is now in doubt with a special two-day hearing which is said to cost around £2million being held in Edinburgh. Roddy Dunlop KC, representing the Scottish Police Federation, told the hearing Lord Bracadale had to go and the meetings he held were 'in almost their entirety completely inappropriate'. The KC added: 'They were doubtless well-meaning, they were doubtless arranged out of the best of intentions, but and with the greatest of respect, they were spectacularly ill-advised and they have torpedoed the independence of the chair.' Lord Bracadale told the inquiry, in a written statement, that the meetings were needed. He said: 'Given the fragility of the confidence of the families in the Inquiry at various stages, I consider that meeting them on an annual basis did contribute to obtaining and retaining their confidence in the Inquiry and securing their evidence. 'I consider that, if I had not had meetings with them, there is a high probability that they would have stopped participating and would have walked out of the Inquiry.'
BBC News
11-06-2025
- Politics
- BBC News
Sheku Bayoh: Hearing to decide whether chair should resign begins
A former judge who is chairing a £50m public inquiry into the death of a man in police custody will hear arguments on Thursday on whether he should step down or see the job Scottish Police Federation has accused Lord Bracadale of holding "secret" meetings with the family of Sheku Bayoh, who died after being restrained by police in Kirkcaldy in organisation which represents rank and file officers believes the five meetings could lead to "perceived bias" and has called for him to "recuse" Bracadale has been leading the inquiry since 2020 and ordered the hearing to allow core participants to make submissions on his conduct. If Lord Bracadale decides to stay in post, the federation has said it will seek a judicial departure and the search for a last minute replacement after five years of work would delay the inquiry's findings by many has already cost the public purse £24.8m, with an additional £24.3m spent by Police Scotland, including £17.3m of legal stage is now set for a robust exchange of legal arguments between senior lawyers. Roddy Dunlop KC, dean of the Faculty of Advocates, will represent the police federation and two of the officers involved in the incident which ended with Mr Bayoh's police federation has said that none of the other core participants were made aware that Lord Bracadale was meeting the family and the details of what was said have not been federation's general secretary David Kennedy has said it has lost confidence in the inquiry because not all core participants were being treated Bayoh family's solicitor Aamer Anwar has described the federation's actions as "a pathetic and desperate attempt to sabotage the inquiry" at the 11th claimed the hearing could cost taxpayers "in excess of a million pounds" in fees for "police lawyers." Competing arguments One of England's top barristers, Jason Beer KC, has been brought in as senior counsel for the inquiry is expected to argue that Lord Bracadale's actions were procedurally appropriate because of the importance of maintaining the family's prosecution service, the Crown Office, will state its position, along with Police Scotland, the Police Investigations and Review Commissioner and the Commission for Racial Equality and representing other police officers involved in the case will also have the opportunity to have their hearing is scheduled to last two days, with Lord Bracadale issuing his decision at a later inquiry has been examining what happened before and during the death of Sheku Bayou, who died in police custody. It has been looking at how the police dealt with the aftermath, the investigation into Mr Bayoh's death and whether race was a of the public called the police after Mr Bayoh was spotted carrying a knife and behaving erratically in the streets of Kirkcaldy on May 3, wasn't carrying the knife when officers arrived at the scene but a violent confrontation followed, with up to six officers restraining the 31-year-old on the father-of-two lost consciousness and later died in hospital.
Scottish Sun
22-04-2025
- Politics
- Scottish Sun
Legal chiefs blast MSP for attack on Supreme Court judges after ‘women' ruling
They described it as 'irresponsible' and 'reprehensible' Click to share on X/Twitter (Opens in new window) Click to share on Facebook (Opens in new window) SCOTLAND's top legal briefs have launched a scathing attack on a pro-trans Scottish Green MSP for risking the safety of judges after the Supreme Court case on the definition of a woman. Dean of the Faculty of Advocates, Roddy Dunlop KC, blasted Maggie Chapman after she claimed the ruling showed "bigotry, prejudice and hatred". Sign up for the Politics newsletter Sign up 2 Scottish Green MSP Maggie Chapman is refusing to apologise for her remarks. Credit: Alamy 2 Dean of the Faculty of Advocates Roddy Dunlop KC. In a letter to the convenor of Holyrood's equalities committee, for which Ms Chapman is deputy, Mr Dunlop accused the MSP of an "egregious breach" of duties relating to upholding the independence of the courts. And he said the attack on judges was worse than the Court of Appeal being branded "enemies of the people" after Brexit or Tory attacks on so-called "activist" lawyers. Mr Dunlop wrote: "They go further than that, and create a risk of danger to the Members of the Court themselves. This behaviour is irresponsible and reprehensible. "Faculty very much regrets having to write this letter. However, Ms Chapman's words have left it with no choice. Her behaviour in this instance is utterly beyond the pale." Ms Chapman, who represents North East Scotland at Holyrood, made the controversial remarks during a speech at a pro-trans rally on Saturday in Aberdeen. In a social media clip, she tells activists: 'We say 'not in our name' to the bigotry, prejudice and hatred that we see coming from the Supreme Court and from so many other institutions in our society. Not in our name, never in our name.' However, despite the backlash and calls for her to stand down from her position on the committee, Ms Chapman has refused to apologise. She told reporters at Holyrood on Tuesday: 'I think one of the really important things in my role as an MSP and as a member of the Equalities Committee is to stand up and represent trans people. 'There are lots of politicians across Scotland who are prepared to represent people who don't think trans people should have the same rights as you or I, I'm prepared to stand up and represent trans people.' In response to the letter from the faculty, Ms Chapman added: 'I'm not going to apologise, I stand by my comments.' The Scottish Green MSP also claimed there has been an 'upswelling of hate, of targeting of trans people' in the past week since the ruling by the Supreme Court. A panel of five judges declared that a "woman" in the Equality Act refers to a 'biological woman and biological sex'. And they criticised SNP ministers for pushing an 'incoherent' interpretation that would leave women's rights worse off. Scottish Tory shadow equalities minister Tess White said: 'This unprecedented intervention from the Faculty of Advocates is a measure of just how appalling and unacceptable Maggie Chapman's comments were. 'Her outrageous attack on the integrity of the highest court in the land and her refusal to accept its legal ruling demonstrate her blind prejudice on gender self-ID and makes her position as deputy convenor of the equalities committee completely untenable.'
