Scottish Human Rights Law Group

The Privy Council was asked to determine if section 10 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (“the 2002 Act”) which inserted section 275A into the Criminal Procedure (Scotland) Act 1995, was compatible with the appellant’s right to a fair trial under article 6 of the European Convention on Human Rights.    

It was argued on behalf of the appellant that s. 275A of the 1995 Act created a risk that his previous conviction would be disclosed to the jury and thereby unfairly penalised him for exercising his legitimate right to lead or elicit evidence in terms of s. 275(1) of the 1995 Act.   In dismissing the appeal the Privy Council held Section 275A of the 1995 Act had to be understood on the basis that the main reason why previous relevant convictions were to be disclosed or taken into consideration was because they might be regarded as relevant to the accused’s propensity to commit other sexual crimes and that they might have a bearing on the accused’s credibility, if that was put in issue, as compared with that of the complainer.   Where the court gave the appropriate permission under s. 275(1) of the 1995 Act, the defence could lead evidence and ask questions about the complainer’s character, condition or predisposition or about what the complainer did some time before the incident that formed the subject matter of the charge. Where such evidence was led or questions asked under s. 275 of the 1995 Act, the jury was entitled to have regard to those factors when determining whether the Crown had proved its case. Section 275A of the 1995 Act provided an element of parity or balance in the treatment of the two sides by giving the jury an opportunity, when considering its verdict, to have regard also to what the accused had done on other occasions. For all those reasons s. 275A of the 1995 Act when properly applied was said not to violate the right of the accused to a fair trial. 

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