Admissibility of Character Evidence and Provisions for Vulnerable Witnesses

The core concept of character evidence relates to the Rationalist Tradition of evidence law.
Definition of Character Evidence: Evidence concerning a person’s character is often seen as collateral and not directly relevant to the determination of the probandum in a trial.
Concept of Collateral Issue: Bad character, particularly relating to past behavior (such as previous convictions), is generally prejudicial and therefore not admissible as a measure of current behavior.
Exceptions: There are exceptions that allow for character evidence to be admissible when it can have probative value that outweighs its prejudicial effect.
- The balancing of probative value vs. prejudicial effect is a central theme in evidence law.
- This balancing act is particularly scrutinized in sexual crime cases, especially regarding how character evidence of the complainer affects the defendant's right to a fair trial versus the complainer's right to privacy and protection from degrading treatment.

Article 6: The accused’s right to a fair trial is outlined in Article 6 of the European Convention on Human Rights.
Article 3: The need for protecting a witness from inhumane or degrading treatment is discussed under Article 3.
Article 8: Witness privacy is protected under Article 8.
In many modern sexual offense trials, the focus is significantly on consent, as the acts often take place privately with no witnesses other than the accused and the complainer.

Credibility vs. Reliability:
- Credibility: The truthfulness and honesty of the witness, whether they are lying or genuinely trying to provide accurate information.
- Reliability: The accuracy of the witness’s testimony regarding what they observed, independent of honesty.
Types of Witnesses:
- Credible but unreliable (honestly mistaken due to various factors).
- Reliable but not credible (telling the truth on some points while lying on others).
These distinctions are crucial for judges, who may direct juries on these issues during trial deliberations.

The Criminal Procedure (Scotland) Act 1995 includes sections 274 and 275 regarding the admissibility of the complainer's character evidence in sexual offense trials.
Section 274(1): Prohibits the admission of evidence that:
1. Shows that the complainer is not of good character in sexual matters or otherwise.
2. Indicates that the complainer has engaged in sexual behavior unrelated to the charge.
3. Suggests the complainer is likely to have consented or is not credible or reliable due to non-sexual behavior.
4. Shows any condition or predisposition suggesting consent or lack of credibility.
Section 275(1): Outlines conditions under which such evidence may be admitted:
- Specificity: Evidence must relate to specific incidents or characteristics, not general assertions.
- Relevance: Evidence must likely help establish the guilt of the accused.
- Probative Value: The probative value must be significant and outweigh any risk of prejudice to the proper administration of justice.
The measures for ensuring the proper application of these sections include:
- Protection of dignity and privacy of the complainer.
- Relevance to the trial issues.
- Written application submission for any evidence sought to be admitted or questioned, elaborating on its relevance and the nature of the questioning.

Research indicated that 76% of rape trials involved s275 applications.
Of those applications, 81% were granted in full, with only 11% opposed by the prosecution.
Conviction rate details for rape highlighted a significant disparity, with rates for rape and attempted rape at 48% in 2021/22 versus a general rate of 84% for all crimes.

Daly v HMA [2025] UKSC 38 was a pivotal judgment concerning sections 274 and 275 and their congruence with human rights, particularly Article 6 (fair trial).
The court emphasized the duty of Scottish courts to modify their approach to ensure compliance with the Convention.
Landmark elements of the judgment include:
- The requirement for a nuanced consideration of evidence rather than blanket exclusions.
- Section 274 not being an absolute prohibition.
- Admission of evidence that falls under s274 may be essential to fairness in legal proceedings.
- Evidence should be relevant to establishing the guilt of the accused.

Section 275A: Obliges the prosecutor to disclose the accused's relevant convictions when questioning or evidence is allowed under section 275.
Section 275C: Allows for expert psychological evidence to counter inferences against the credibility of the complainer based on their behavior.
Section 288DA: Judges must inform juries that the lack of communication about a sexual offense does not imply false allegations.
Section 288DB: Judges must also instruct juries that the absence of physical resistance or force does not indicate false allegations.

Section 271: Categories of vulnerable witnesses include:
- Child witness: Under 18 at the start of proceedings.
- Adult vulnerable witness: Over 18 with diminished evidence quality risk due to mental disorder, fear, or distress.
- Deemed vulnerable witness: Complainers in certain sexual offense cases.
Factors for considering adult vulnerability include emotional state, relationship dynamics, physical disabilities, and cultural background.

Measures for vulnerable witnesses can include:
- Testimony by a commissioner.
- Prior statements in evidence form.
- Live television link arrangements.
- Screen arrangements to protect witness privacy.
The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 introduced provisions that prevent certain vulnerable witnesses from being cross-examined in the traditional manner. Instead, lawyers collaborate with judges to frame questions which are then presented in a special setting.

The Burden of Proof: The prosecution holds the burden to prove guilt beyond a reasonable doubt.
Standards of Proof: In civil matters, issues are settled on a balance of probabilities as opposed to the criminal standard of beyond reasonable doubt.
Reverse burdens introduce scenarios where the accused must prove something to avoid conviction, raising concerns about fairness and the presumption of innocence.

HMA v Innes involved the complex interaction between reverse burdens and the evidential onus regarding diminished responsibility.
The judge is responsible for determining the sufficiency of evidence for any defense claims regarding mental state.

The application of corroboration and how it intersects with sexual offenses has evolved, particularly following crucial judgments correcting previous interpretations of corroboration requirements.
Significant changes include the acknowledgment of de recenti statements as corroborative under certain circumstances, reflecting the courts' responsiveness to the challenges faced by complainers in securing justice.

Consult Chapters on character evidence, vulnerable witnesses, primary hearsay, and burdens of proof from relevant textbooks (Raitt, Auchie, and Chalmers) to supplement understanding, with acknowledgment of evolving legal frameworks in these areas.