Part 9

Sexual offences cases: further reform

Independent legal representation for complainers

Applications to admit certain evidence relating to sexual offences: rights of complainers
106
1
The 1995 Act is amended as follows.
2
In section 275 (exceptions to restrictions under section 274)—
a
after subsection (4) insert—
4A
The prosecutor (whether the party making the application or otherwise) must, as soon as reasonably practicable after the application is made—
a
notify the complainer that an application for the purposes of subsection (1) has been made,
b
give the complainer an explanation of the application, of the evidence sought to be admitted and, as the case may be, of the questioning proposed to be allowed,
c
give the complainer information about the rights mentioned in section 275ZA.
,
b
after subsection (9) insert—
10
In subsection (4A) and in sections 275ZA to 275ZC—
- “complainer” has the same meaning as in section 274 except that it does not include a person who is deceased,
- “legal representative” means—
  1. a solicitor,
  2. an advocate, or
  3. a solicitor who has a right of audience in the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980.
.
3
After section 275 insert—

Rights of complainers in relation to section 275 applications
275ZA
1
This section applies where an application is made for the purposes of section 275(1).
2
Where the complainer engages a legal representative for purposes relating to the application, the complainer’s legal representative must give the court and the prosecutor notice of that fact—
a
as soon as reasonably practicable after being so engaged, and
b
in writing.
3
The complainer’s legal representative is, on giving notice to the prosecutor under subsection (2), entitled to be given an opportunity to make representations to the court in relation to the application, including as to—
a
the accuracy of any statements made in it, and
b
whether the evidence sought to be admitted or questioning proposed should be admitted or, as the case may be, allowed.
4
Where the complainer’s legal representative withdraws or is dismissed by the complainer, the legal representative must give the court and the prosecutor notice of that fact—
a
as soon as reasonably practicable after withdrawing or being dismissed, and
b
in writing.
5
For the purposes of subsections (2) and (4), notice is given to the prosecutor if it is given to—
a
in proceedings in the High Court or Sexual Offences Court, the Crown Agent,
b
in any other proceedings, the procurator fiscal for the district in which the trial diet is to be held.

Rights of complainers in relation to section 275 applications: further provision
275ZB
1
The prosecutor must, where given notice under section 275ZA(2), send to the complainer’s legal representative as soon as reasonably practicable—
a
a copy of the application made for the purposes of section 275(1),
b
a copy of the complaint or, as the case may be, indictment to the extent that it relates to the application.
2
Where, after receipt of the documents mentioned in subsection (1), the complainer’s legal representative requests that the prosecutor provide a copy of any evidence referred to in, or relevant to, the application, the prosecutor must—
a
notify the accused that such a request has been made, and
b
advise the accused of the evidence which has been requested.
3
The prosecutor must send the requested evidence to the complainer’s legal representative as soon as reasonably practicable after the end of the period (“the objection period”) mentioned in subsection (6), unless subsection (7) applies in relation to that particular evidence.
4
Subsection (7) applies in relation to particular evidence if, within the objection period—
a
the accused sends the prosecutor the accused’s objection to that particular evidence being sent or to all of the evidence being sent, or
b
the prosecutor has an objection to that particular evidence being sent or to all of the evidence being sent.
5
For the purposes of this section, an objection sent by the accused to the prosecutor must—
a
be in writing,
b
explain why the accused objects to the evidence being sent,
c
state whether the objection is—
i
only to particular evidence being sent and, if so, specify which particular evidence, or
ii
to all of the evidence being sent.
6
The objection period is the period—
a
beginning on the day after the day on which the accused is notified of the request for evidence, and
b
ending on the earliest of—
i
the day which falls 7 days after the period begins,
ii
if a preliminary hearing, first diet or intermediate diet is to be held, the day which falls two days before the day that hearing or diet is to be held,
iii
if the accused gives the prosecutor written consent to that particular evidence or all of the evidence being sent and the prosecutor has no objection to it being sent, the day on which that written consent is given.
7
Before sending to the complainer’s legal representative any particular evidence in relation to which there is an objection in accordance with subsection (4), the prosecutor must—
a
apply to the court for a ruling on whether the evidence should be sent or the objection upheld,
b
include in the application a copy of the objection to the evidence being sent,
c
send a copy of the application to the accused and the complainer’s legal representative.
8
On an application under subsection (7)(a), the court may, after giving the prosecutor, the accused and the complainer’s legal representative an opportunity to make representations—
a
uphold the objection and refuse to authorise the sending of evidence,
b
require the prosecutor to send the evidence in the form, and subject to any limitations, the court thinks is in the interests of justice.

Confidentiality of disclosed evidence
275ZC
1
This section applies where, in accordance with section 275ZB, the prosecutor sends the complainer’s legal representative a copy of any evidence referred to in, or relevant to, the application made for the purposes of section 275(1).
2
Subject to any conditions imposed by the court, by virtue of section 275ZB(8), on disclosure of evidence, the complainer and the complainer’s legal representative may use or disclose evidence referred to in subsection (1) for the purposes set out in subsection (3).
3
The purposes are making, or preparing to make, representations to the court in relation to the application, in accordance with section 275ZA(3).
4
A person must not use or disclose evidence referred to in subsection (1) for any purpose other than those set out in subsection (3).
5
Subsection (4) does not apply in relation to the use or disclosure of evidence which is in the public domain at the time of the use or disclosure.
6
A person who knowingly uses or discloses evidence in contravention of subsection (4) commits an offence.
7
A person who commits an offence under subsection (6) is liable—
a
on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),
b
on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).
.
4
In section 275B (provisions supplementary to sections 275 and 275A), in subsection (1)—
a
in paragraph (a), for “7” substitute “21”,
b
for paragraph (b) substitute—
b
in the case of proceedings on indictment in the sheriff court, not less than 21 clear days before the first diet,
c
in the case of summary proceedings, not less than 21 clear days before the first intermediate diet or, if no such diet is fixed, the trial diet.
,
c
in the section title, for “275 and 275A” substitute “275 to 275A”.
5
In section 271I (taking of evidence by a commissioner), in subsection (6)(c), for “7” substitute “21”.
6
In section 74 (appeals in connection with preliminary diets), after subsection (1) insert—
1A
For the purposes of an appeal under subsection (1) against a decision to grant an application under section 275(1), “party” includes the complainer’s legal representative (within the meaning of section 275(10)).
.