Law Reform (Miscellaneous Provisions) (Scotland) Act 1985

36 Evudence in trials of certain sexual offences. S

(1) After section 141 of the M1 Criminal Procedure (Scotland) Act 1975 there shall be inserted the following sections—

“141A Evidence in relation to sexual offences.

(1) In any trial of a person on any charge to which this section applies, subject to section 141B, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—

(a) is not of good character in relation to sexual matters ; or

(b) is a prostitute or an associate of prostitutes ; or

(c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.

(2) This section applies to a charge of committing or attempting to commit any of the following offences, that it to say—

(a) rape ;

(b) sodomy ;

(c) assault with intent to rape ;

(d) indecent assault ;

(e) indecent behaviour (including lewd, indecent or libidinous practice or behaviour) ;

(f) an offence under section 106(1)(a) or 107 of the Mental Health (Scotland) Act 1984 (unlawful sexual intercourse with mentally handicapped female or with patient) ;

(g) an offence under any of the following provisions of the Sexual Offences (Scotland) Act 1976—

(i) section 2 (procuring by threats etc.) ;

(ii) section 3 (unlawful sexual intercourse with girl under 13) ;

(iii) section 4 (unlawful sexual intercourse with girl under 16) ;

(iv) section 5 (indecent behaviour towards girl between 12 and 16) ;

(v) section 8 (abduction of girl under 18) ;

(vi) section 9 (unlawful detention of female) ; or

(h) an offence under section 80(7) of the Criminal Justice (Scotland) Act 1980 (homosexual offences).

(3) In this section “complainer” means the person against whom the offence referred to in subsection (2) above is alleged to have been committed.

(4) This section does not apply to questioning, or evidence being adduced, by the Crown.

141B Exceptions to prohibition.

(1) Notwithstanding the terms of section 141A, in any trial of a person on any charge to which that section applies, where the court is satisfied on an application by that person—

(a) that the questioning or evidence referred to in section 141A(1) above is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or on behalf of that person,

(b) that the questioning or evidence referred to in section 141A(1)(c) above—

(i) is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming the subject-matter of the charge, or

(ii) is relevant to the defence of incrimination, or

(c) that it would be contrary to the interests of justice to exclude the questioning or evidence referred to in section 141A(1) above,

the court shall allow such questioning or, as the case may be, admit such evidence.

(2) Where questioning or evidence is or has been admitted under section, the court may at any time limit as it thinks fit the extent of that questioning or evidence.

(3) Any application under this section shall be made in the course of the trial but in the absence of the jury, the complainer, any person cited as witness and the public.”

(2) After section 346 of the said Act there shall be inserted the following sections—

“346A Evidence in relation to sexual offences.

(1) In any trial of a person on any charge to which this section applies, subject to section 346B, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—

(a) is not of good character in relation to sexual matters ;

(b) is a prostitute or an associate of prostitutes ; or

(c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.

(2) This section applies to a charge of committing or, in the case of paragraphs (b) to (g), attempting to commit any of the following offences, that is to say—

(a) attempted rape ;

(b) sodomy ;

(c) assault with intent to rape ;

(d) indecent assault ;

(e) indecent behaviour (including any lewd, indecent or libidinous practice or behaviour) ;

(f) an offence under any of the following provisions of the Sexual Offences (Scotland) Act 1976—

(i) section 2 (procuring by threats, etc.)

(ii) section 3(2) (unlawful intercourse with girl under 13) ;

(iii) section 4 (unlawful sexual intercourse with girl under 16) ;

(iv) section 5 (indecent behaviour towards girl between 12 and 16) ;

(v) section 8 (abduction of girl under 18) ;

(vi) section 9 (unlawful detention of female) ; or

(g) an offence under section 80(7) of the Criminal Justice (Scotland) Act 1980 (homosexual offences).

(3) In this section “complainer” means the person against whom the offence referred to in subsection (2) above is alleged to have been committed.

(4) This section does not apply to questioning, or evidence being adduced, by the Crown.

346B Exceptions to prohibition.

(1) Notwithstanding the terms of section 346A above, in any trial of a person on any charge to which that section applies, where the court is satisfied on an application by that person—

(a) that the questioning or evidence referred to in section 346A(1) above is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or behalf of that person,

(b) that the questioning or evidence referred to in section 346A(1)(c) above—

(i) is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming the subject-matter of the charge, or

(ii) is relevant to the defence of the incrimination, or

(c) that it would be contrary to the interests of justice to exclude the questioning or evidence referred to in section 346A(1) above, the court shall allow such questioning or, as teh case may be, admit such evidence.

(2) Where the questioning or evidence is or has been allowed or admitted under this section, the court may at any time limit as it thinks fit the extent of that questioning or evidence.

(3) Any application under this section shall be made in the course of the trial but in the absence of the complainer, any person cited as a witness and the public.”.

Marginal Citations

M1 1975 c. 21.