Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 An Act of the Scottish Parliament to prohibit persons charged with certain sexual offences from conducting their own defence at the trial; to provide for the appointment of solicitors to defend those persons where they do not make those appointments themselves; to prevent those persons from personally precognoscing or taking statements from alleged victims; to require those persons to give notice of defences of consent; to make new provision about the admissibility of certain evidence bearing on the character, conduct or condition of alleged victims at trials of those persons for those offences; to provide for disclosure of those persons’ previous convictions of sexual offences where such evidence is allowed; and for connected purposes. After section 288B of the Criminal Procedure (Scotland) Act 1995 (c.46) (the “1995 Act”) there is inserted— An accused charged with a sexual offence to which this section applies is prohibited from conducting his defence in person at the trial. This section applies to the following sexual offences— rape; sodomy; clandestine injury to women; abduction of a woman or girl with intent to rape; assault with intent to rape; indecent assault; indecent behaviour (including any lewd, indecent or libidinous practice or behaviour); an offence under section 106(1)(a) or 107 of the Mental Health (Scotland) Act 1984 (c.36) (unlawful sexual intercourse with mentally handicapped female or with patient); an offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)— sections 1 to 3 (incest and related offences); section 5 (unlawful sexual intercourse with girl under 13 or 16); section 6 (indecent behaviour toward girl between 12 and 16); section 7(2) and (3) (procuring by threats etc.); section 8 (abduction and unlawful detention); section 10 (seduction, prostitution, etc. of girl under 16); section 13(5)(b) or (c) (homosexual offences); attempting to commit any of the offences set out in paragraphs (a) to (i) above. This section applies also to an offence in respect of which a court having jurisdiction to try that offence has made an order under subsection (4) below. Where, in the case of any offence, other than one set out in subsection (2) above, that court is satisfied that there appears to be such a substantial sexual element in the alleged commission of the offence that it ought to be treated, for the purposes of this section, in the same way as an offence set out in that subsection, the court shall, either on the application of the prosecutor or ex proprio motu, make an order under this subsection. The making of such an order does not affect the validity of anything which— was done in relation to the alleged offence to which the order relates; and was done before the order was made. The Scottish Ministers may by order made by statutory instrument vary the sexual offences to which this section applies by virtue of subsection (2) above by modifying that subsection. No such statutory instrument shall be made, however, unless a draft of it has been laid before and approved by resolution of the Scottish Parliament. After section 288C of the 1995 Act (as inserted by section 1 above) there is inserted— This section applies in the case of proceedings in respect of a sexual offence to which section 288C above applies. Where the court ascertains that— the accused has not engaged a solicitor for the purposes of his defence at the trial; or having engaged a solicitor for those purposes, the accused has dismissed him; or the accused’s solicitor has withdrawn, then, where the court is not satisfied that the accused intends to engage a solicitor or, as the case may be, another solicitor for those purposes, it shall, at its own hand, appoint a solicitor for those purposes. A solicitor so appointed is not susceptible to dismissal by the accused or obliged to comply with any instruction by the accused to dismiss counsel. Subject to subsection (3) above, it is the duty of a solicitor so appointed— to ascertain and act upon the instructions of the accused; and where the accused gives no instructions or inadequate or perverse instructions, to act in the best interests of the accused. In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly. Where the court is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the court may relieve that solicitor of his appointment and appoint another solicitor for the purposes of the accused’s defence at the trial. The references in subsections (3) to (6) above to “a solicitor so appointed” include references to a solicitor appointed under subsection (6) above. In this section “counsel” includes a solicitor who has right of audience in the High Court of Justiciary under section 25A (rights of audience in various courts including the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c.46). In section 22 (automatic availability of criminal legal aid) of the Legal Aid (Scotland) Act 1986 (c.47), in subsection (1), after paragraph (dc) there is inserted— where a solicitor has been appointed under section 288D of the Criminal Procedure (Scotland) Act 1995 (c.46) (appointment by court of solicitor for person accused of sexual offence and thereby prohibited from conducting defence in person) to act on his instructions or in his interests; In section 31 of that Act of 1986, in subsection (1A) (exceptions to provision entitling person receiving legal aid or advice and assistance to select a solicitor and counsel)— the word “and” immediately preceding paragraph (e) is repealed; and after that paragraph there is inserted ; and section 288D of the Criminal Procedure (Scotland) Act 1995 (c.46) The schedule to this Act has effect. In section 291 (precognition on oath of defence witnesses) of the 1995 Act, after subsection (3) there is inserted— This section does not, however, extend to the citation of the complainer for precognition by the accused in person. In subsection (4) above, “complainer” has the same meaning as in section 274 of this Act. In subsection (5) (standard bail conditions) of section 24 of the 1995 Act— the word “and” immediately preceding paragraph (d) is repealed; and where the (or an) offence in respect of which he is admitted to bail is one to which section 288C of this Act applies, does not seek to obtain, otherwise than by way of a solicitor, any precognition of or statement by the complainer in relation to the subject matter of the offence. After subsection (7) of that section there is inserted— In subsection (5)(e) above, “complainer” has the same meaning as in section 274 of this Act. In section 78 (which provides for, amongst other things, prior notice of special defences in proceedings on indictment) of the 1995 Act— in subsection (2), for “or coercion” there is substituted “ , coercion or, in a prosecution for an offence to which section 288C of this Act applies, consent ”; after that subsection there is inserted— In subsection (2) above, the reference to a defence of consent is a reference to the defence which is stated by reference to the complainer’s consent to the act which is the subject matter of the charge or the accused’s belief as to that consent. In subsection (2A) above, “complainer” has the same meaning as in section 274 of this Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . For section 274 (restrictions on evidence relating to sexual offences) of the 1995 Act there is substituted— In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer— is not of good character (whether in relation to sexual matters or otherwise); has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge; has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer— is likely to have consented to those acts; or is not a credible or reliable witness; or has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above. In subsection (1) above— “complainer” means the person against whom the offence referred to in that subsection is alleged to have been committed; and the reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature. For section 275 (exception to restrictions under section 274) of the 1995 Act there is substituted— The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that— the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating— the complainer’s character; or any condition or predisposition to which the complainer is or has been subject; that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited. the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature; “the proper administration of justice” includes— appropriate protection of a complainer’s dignity and privacy; and ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury’s verdict, and, in that subsection and in sub-paragraph (i) of paragraph (b) above, “complainer” has the same meaning as in section 274 of this Act. An application for the purposes of subsection (1) above shall be in writing and shall set out— the evidence sought to be admitted or elicited; the nature of any questioning proposed; the issues at the trial to which that evidence is considered to be relevant; the reasons why that evidence is considered relevant to those issues; the inferences which the applicant proposes to submit to the court that it should draw from that evidence; and such other information as is of a kind specified for the purposes of this paragraph in Act of Adjournal. The party making such an application shall, when making it, send a copy of it— when that party is the prosecutor, to the accused; and when that party is the accused, to the prosecutor and any co-accused. The court may reach a decision under subsection (1) above without considering any evidence; but, where it takes evidence for the purposes of reaching that decision, it shall do so as if determining the admissibility of evidence. The court shall state its reasons for its decision under subsection (1) above, and may make that decision subject to conditions which may include compliance with directions issued by it. Where a court admits evidence or allows questioning under subsection (1) above, its decision to do so shall include a statement— of what items of evidence it is admitting or lines of questioning it is allowing; of the reasons for its conclusion that the evidence to be admitted or to be elicited by the questioning is admissible; of the issues at the trial to which it considers that that evidence is relevant. A condition under subsection (6) above may consist of a limitation on the extent to which evidence— to be admitted; or to be elicited by questioning to be allowed, may be argued to support a particular inference specified in the condition. Where evidence is admitted or questioning allowed under this section, the court at any time may— as it thinks fit; and notwithstanding the terms of its decision under subsection (1) above or any condition under subsection (6) above, limit the extent of evidence to be admitted or questioning to be allowed. In section 71 (first diet of proceedings on indictment in sheriff court) of the 1995 Act— after subsection (2) there is inserted— At a first diet the court may consider an application for the purposes of subsection (1) of section 275 of this Act. and in subsection (3), after “above” there is inserted “ or which is relevant to an application for the purposes of subsection (1) of the said section 275 ”. In section 72 (preliminary diet of proceedings on indictment in High Court) of the 1995 Act— in subsection (1), after “subsection” there is inserted “ or subsection (2A) below ”; The court may order that there shall be a diet before the trial diet for the purpose of considering an application for the purposes of subsection (1) of section 275 of this Act. in subsection (3)— after “ordered” there is inserted “ under subsection (2A) above or ”; for “any other” there is substituted “ any, or any other, ”; and for “that subsection” there is substituted “ subsection (1) above ”. In section 73 (procedure at preliminary diet of proceedings on indictment in High Court) of the 1995 Act— in subsection (3), after “section” where secondly occurring there is inserted “ or to considering an application for the purposes of subsection (1) of section 275 of this Act ”; and in subsection (4), after “section” where secondly occurring there is inserted “ or which is relevant to an application for the purposes of subsection (1) of the said section 275 ”. In section 148 (intermediate diet of summary proceedings) of the 1995 Act— after subsection (3) there is inserted— At an intermediate diet, the court may consider an application for the purposes of subsection (1) of section 275 of this Act; and, notwithstanding subsection (1) above, the court may fix a diet under that subsection for the purpose only of considering such an application. Subsection (3A) above shall not operate so as to relieve any court prescribed by order under subsection (7) below of its duty, which arises by virtue of the operation of that subsection, to fix an intermediate diet for the purpose mentioned in subsection (1) above. in subsection (4), after “(1)” there is inserted “ or (3A) ”. In section 157 (record of summary proceedings) of the 1995 Act— in subsection (2) after “or”, where last occurring, there is inserted “ (subject to subsection (3) below) ”; and An application for the purposes of subsection (1) of section 275 of this Act, together with the court’s decision on it, the reasons stated therefor and any conditions imposed and directions issued under subsection (7) of that section shall be entered in the record of the proceedings. Section 10 of the International Criminal Court (Scotland) Act 2001 (asp 13) is repealed. In section 101 (disclosure of accused’s previous convictions in solemn proceedings) of the 1995 Act— in subsection (1), after “not” there is inserted “ , subject to subsection (2) below and section 275A(2) of this Act, ”; and in subsection (3), after “not” there is inserted “ , subject to section 275A(1) of this Act, ”. In subsection (3) (accused’s previous convictions not to be disclosed in summary proceedings until judge is satisfied that charge is proved) of section 166 of the 1995 Act, after “not” there is inserted “ , subject to section 275A(1) of this Act, ”. In section 266 (which, amongst other things, prohibits the asking of questions relating to offences other than that with which an accused is charged) of the 1995 Act, after subsection (5) there is inserted— Nothing in subsections (4) and (5) above shall prevent the accused from being asked, or from being required to answer, any question tending to show that he has been convicted of an offence other than that with which he is charged if his conviction for that other offence has been disclosed to the jury, or is to be taken into consideration by the judge, under section 275A(2) of this Act. After section 275 of the 1995 Act there is inserted— Where, under section 275 of this Act, a court on the application of the accused allows such questioning or admits such evidence as is referred to in section 274(1) of this Act, the prosecutor shall forthwith place before the presiding judge any previous relevant conviction of the accused. Any conviction placed before the judge under subsection (1) above shall, unless the accused objects, be— in proceedings on indictment, laid before the jury; in summary proceedings, taken into consideration by the judge. An extract of such a conviction may not be laid before the jury or taken into consideration by the judge unless such an extract was appended to the notice, served on the accused under section 69(2) or, as the case may be, 166(2) of this Act, which specified that conviction. An objection under subsection (2) above may be made only on one or more of the following grounds— where the conviction bears to be a relevant conviction by virtue only of paragraph (b) of subsection (10) below, that there was not a substantial sexual element present in the commission of the offence for which the accused has been convicted; that the disclosure or, as the case may be, the taking into consideration of the conviction would be contrary to the interests of justice; in proceedings on indictment, that the conviction does not apply to the accused or is otherwise inadmissible; in summary proceedings, that the accused does not admit the conviction. Where— an objection is made on one or more of the grounds mentioned in paragraphs (b) to (d) of subsection (4) above; and an extract of the conviction in respect of which the objection is made was not appended to the notice, served on the accused under section 69(2) or, as the case may be, 166(2) above, which specified that conviction, the prosecutor may, notwithstanding subsection (3) above, place such an extract conviction before the judge. In summary proceedings, the judge may, notwithstanding subsection (2)(b) above, take into consideration any extract placed before him under subsection (5) above for the purposes only of considering the objection in respect of which the extract is disclosed. In entertaining an objection on the ground mentioned in paragraph (b) of subsection (4) above, the court shall, unless the contrary is shown, presume that the disclosure, or, as the case may be, the taking into consideration, of a conviction is in the interests of justice. An objection on the ground mentioned in paragraph (c) of subsection (4) above shall not be entertained unless the accused has, under subsection (2) of section 69 of this Act, given intimation of the objection in accordance with subsection (3) of that section. In entertaining an objection on the ground mentioned in paragraph (d) of subsection (4) above, the court shall require the prosecutor to withdraw the conviction or adduce evidence in proof thereof. For the purposes of this section a “relevant conviction” is, subject to subsection (11) below— a conviction for an offence to which section 288C of this Act applies by virtue of subsection (2) thereof; or where a substantial sexual element was present in the commission of any other offence in respect of which the accused has previously been convicted, a conviction for that offence, which is specified in a notice served on the accused under section 69(2) or, as the case may be, 166(2) of this Act. A conviction for an offence other than an offence to which section 288C of this Act applies by virtue of subsection (2) thereof is not a relevant conviction for the purposes of this section unless an extract of that conviction containing information which indicates that a sexual element was present in the commission of the offence was appended to the notice, served on the accused under section 69(2) or, as the case may be, 166(2) of this Act, which specified that conviction. An application for the purposes of subsection (1) of section 275 of this Act shall not, unless on special cause shown, be considered by the court unless made not less than 14 clear days before the trial diet. such an application is considered; or any objection under subsection (2) of section 275A of this Act is entertained, during the course of the trial, the court shall consider that application or, as the case may be, entertain that objection in the absence of the jury, the complainer, any person cited as a witness and the public. This Act may be cited as the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. This Act (except this section) comes into force on such day as the Scottish Ministers may, by order made by statutory instrument, appoint; and different days may be so appointed for different purposes. An order under subsection (2) above may contain such transitional and saving provisions as the Scottish Ministers consider necessary or expedient in connection with the provisions brought into force by the order. The 1995 Act is amended as follows. In section 35 (judicial examination of accused), after subsection (4) there is inserted— An accused charged with a sexual offence to which section 288C of this Act applies shall, as soon as he is brought before the sheriff for examination on the charge, be told— that, if he is tried for the offence, his defence may be conducted only by a lawyer; that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and that, if he does not engage a solicitor for the purposes of his defence at the trial, the court will do so. A failure to comply with subsection (4A) above does not affect the validity or lawfulness of the examination or of any other element of the proceedings against the accused. In section 66 (which includes provision about the citation of and service of the indictment upon the accused) after subsection (6) there is inserted— Where the charge in the indictment is of committing a sexual offence to which section 288C of this Act applies, the notice served under subsection (6) above shall— contain intimation to the accused— that if he does not engage a solicitor for the purposes of his defence at the trial, the court will do so; and where the case is to be tried in the High Court, call upon him to appear and answer to the indictment also at a diet under section 72A of this Act. A failure to comply with subsection (6A) above does not affect the validity or lawfulness of any such notice or any other element of the proceedings against the accused. In section 71 (first diet of proceedings on indictment in sheriff court)— at the beginning there is inserted— At a first diet, the court shall, where the accused is charged with a sexual offence to which section 288C of this Act applies, ascertain whether he has engaged a solicitor for the purposes of his defence at the trial. after subsection (5) there is inserted— Where, however— the accused is charged with a sexual offence to which section 288C of this Act applies; and the court has not ascertained (whether at that diet or earlier) that he has engaged a solicitor for the purposes of his defence at the trial, a first diet may not proceed in his absence; and, in such a case, the court shall adjourn the diet and ordain the accused then to attend. after subsection (8) there is inserted— Where the court adjourns a first diet under subsection (8) above by reason only that, following inquiries for the purposes of subsection (A1) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at his trial, that adjournment shall be for a period of not more than 48 hours and the accused shall be ordained to then attend. After section 71 there is inserted— It is the duty of a solicitor who— was engaged for the purposes of the defence of an accused charged with a sexual offence to which section 288C of this Act applies— at the time of a first diet, at the time of a diet under this section, or in the case of a diet which, under subsection (7) below, is dispensed with, at the time when it was so dispensed with; and after that time but before the trial diet— is dismissed by the accused; or withdraws, forthwith to inform the court in writing of those facts. On being so informed, the court shall order that, before the trial diet, there shall be a further pre-trial diet under this section and ordain the accused then to attend. At a diet under this section, the court shall ascertain whether or not the accused has engaged another solicitor for the purposes of his defence at the trial. Where, following inquiries for the purposes of subsection (3) above, it appears to the court that the accused has not engaged another solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend. A diet under this section shall be not less than 10 clear days before the trial diet. A court may, at a diet under this section, postpone the trial diet. The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing— confirmed his engagement for that purpose; and requested that the diet be dispensed with. a solicitor has requested, under subsection (7) above, that a diet under this section be dispensed with; and before that diet has been held or dispensed with, the solicitor— the solicitor shall forthwith inform the court in writing of those facts. After section 72 there is inserted— Where a case to be tried in the High Court is in respect of a sexual offence to which section 288C of this Act applies, the court shall order that, before the trial diet, there shall be a diet under this section and ordain the accused then to attend. At a diet under this section, the court shall ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial. Where, following inquiries for the purposes of subsection (2) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend. A diet under this section shall be not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet. A diet under this section may be conjoined with a preliminary diet. was engaged for the purposes of the defence of the accused at the trial— at the time of a diet under this section; or in the case of a diet which, under subsection (7) above, is dispensed with, at the time when it was so dispensed with; and On being so informed, the court shall order a further diet under this section. In section 140 (citation of accused in summary prosecution), after subsection (2) there is inserted— Where the charge in the complaint in respect of which an accused is cited is of committing a sexual offence to which section 288C of this Act applies, the citation shall include or be accompanied by notice to the accused— A failure to comply with subsection (2A) above does not affect the validity or lawfulness of any such citation or any other element of the proceedings against the accused. In section 144 (procedure at first summary diet), after subsection (3) there is inserted— Where an accused charged with a sexual offence to which section 288C of this Act applies is present, whether or not with a solicitor, at a calling of the case in a summary prosecution, he shall be told— that if he is tried for the offence, his defence at his trial may be conducted only by a lawyer; that if he does not engage a solicitor for the purposes of his defence at the trial, the court will do so. A failure to comply with subsection (3A) above does not affect the validity or lawfulness of anything done at the calling of the case or any other element of the proceedings against the accused. In section 146 (procedure in summary prosecution following not guilty plea), after subsection (3) there is inserted— Where, under subsection (3) above, the prosecutor furnishes an accused charged with a sexual offence to which section 288C of this Act applies with a copy of the complaint, it shall be accompanied by a notice to the accused— that, if he is tried for the offence, his defence at his trial may be conducted only by a lawyer; A failure to comply with subsection (3A) above does not affect the validity or lawfulness of any such copy complaint or any other element of the proceedings against the accused. After section 148 there is inserted— Where, in a case which is adjourned for trial, the charge is of committing a sexual offence to which section 288C of this Act applies, the court shall order that, before the trial diet, there shall be a diet under this section and ordain the accused then to attend. A diet under this section may be conjoined with an intermediate diet. a solicitor has requested, under subsection (6) above, that a diet under this section be dispensed with; and in the case of a diet which, under subsection (6) above, is dispensed with, at the time when it was so dispensed with; and In subsection (3A) (which provides that the grant of a warrant to apprehend an accused who fails to appear at an intermediate diet has the effect of discharging the trial diet) of section 150, after “diet”, where first occurring, there is inserted “ or a diet under section 148A of this Act ”. S. 11(2)(3): power fully exercised: 1.11.2002 appointed by S.S.I. 2002/443, art. 3 (with art. 4) S. 6(2) repealed (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), s. 84(1), Sch. para. 28; S.S.I. 2007/479, art. 3, Sch. (with art. 7) Sch. para. 2 repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 38; S.S.I. 2017/345, art. 3, sch.