318.As explained above, sections 274 and 275 of the 1995 Act deal with evidence or questioning that may be admitted or allowed in certain cases, with section 275(1) providing that the court can admit evidence or questioning otherwise prohibited by section 274 if, on the application of the accused or the prosecutor, the court is satisfied as to certain matters.
319.Currently, the complainer has no right to oppose or make representations to the court in relation to an application made for the purposes of section 275(1). However, following the judgment of the court in the case of RR, Petitioner v HMA,(11) the Crown has been required to ascertain the complainer’s position in relation to any application under section 275 and to present that position to the court. The court held that the Crown was bound by section 1 of the Victims and Witnesses (Scotland) Act 2014, which requires the Crown, among others, to have regard, in exercising its functions, to the principle that a victim of crime should be able to obtain information about what is happening in the criminal investigation or proceedings and, in so far as it would be appropriate to do so, should be able to participate effectively in that investigation and those proceedings.
320.Section 106 will amend the 1995 Act so that, when an application is made for the purposes of section 275(1), the prosecutor must inform the complainer, give the complainer an explanation of the application and of the evidence or questioning proposed, and make the complainer aware of the rights available to a legal representative of the complainer under new section 275ZA.
321.Section 275ZA gives the complainer’s legal representative, on giving the prosecutor notice that they are acting for the complainer, the right to make representations to the court on the application. The complainer’s legal representative is required to give the court and prosecutor written notice of the fact that they have been engaged. If the legal representative withdraws or is dismissed, they must give the court and prosecutor written notice of that.
322.Section 106(3) also inserts new sections 275ZB and 275ZC in the 1995 Act. Section 275ZB requires the prosecutor to send the complainer’s legal representative a copy of the application under section 275(1) and a copy of the complaint or indictment to the extent that it relates to the application. If the complainer’s legal representative then requests a copy of any evidence referred to in, or relevant to, the application, the prosecutor must notify the accused. The accused or the prosecutor may object to the evidence being sent, provided they do so within the objection period described in subsection (6). If there is no objection within that period, the prosecutor must send the evidence to the complainer's legal representative. If there is an objection, the prosecutor must apply to the court for a ruling on whether the evidence should be sent or the objection upheld. The court may, after giving the prosecutor, the accused and the complainer’s legal representative the opportunity to make representations, either uphold the objection or require the prosecutor to send the evidence.
323.Where evidence is disclosed to the complainer’s legal representative, section 275ZC places a duty of confidentiality on the legal representative and the complainer in respect of that evidence. The evidence may be used or disclosed for the purposes of making, or preparing to make, representations to the court in relation to the application under section 275(1). It is an offence to use or disclose the evidence for any other purposes unless the evidence is already in the public domain.
324.Section 106(4), (5) and (6) make connected amendments to the 1995 Act. Subsection (4) amends section 275B so that an application under section 275(1) must, in solemn proceedings in the High Court of Justiciary, be made no later than 21 days before the preliminary hearing, in solemn proceedings in the sheriff court, no later than 21 days before the first diet, and, in summary proceedings, no later than 21 days before the intermediate diet, if one is fixed, failing which 21 days before the trial diet.
325.Subsection (5) amends section 271I of the 1995 Act so that, in proceedings in which evidence is to be taken by a commissioner, an application under section 275(1) must be made no later than 21 days before the proceedings.
326.Subsection (6) amends section 74 of the 1995 Act, which provides for appeals from decisions made at preliminary hearings in the Hight Court or first diets in the sheriff court, so that the complainer’s legal representative can appeal a decision to grant an application made for the purposes of section 275(1).
Crown Application Independent legal representation for complainers Section 106 – applications to admit certain evidence relating to sexual offences: rights of complainers