Mad, Bad, Rad? Bad Character Evidence of Complainers in Scots Sexual Offence Trials.

This blog is the sixth and final in our series, “Gender (in)justice: Views from Scotland”, featuring pieces authored by legal academics at Glasgow Caledonian University. GCU Law has a strong socio-legal research culture, and this blog series draws on our research across diverse legal contexts. This blog series will explore recent legal developments and emerging legal challenges at the intersection of gender and justice in the law of Scotland. By publishing pieces exploring gender justice issues from a Scots Law perspective, we hope to inspire discussion and invite critical perspectives not only among researchers working in the Scottish context, but from our colleagues in the rest of the UK and beyond.

By Dr Rachel Ferguson

Keywords: sexual offences, law of evidence, sexual history evidence, rape shield, criminal justice reform.

In November this year, a much-anticipated Supreme Court decision scrutinised the exclusion of sexual behaviour and character evidence (bad character evidence) of complainers in Scottish sexual offence trials. While the court found no miscarriages of justice in the two cases before it, it nonetheless took the opportunity to strongly criticise developments in Scots courts that effectively prohibited any evidence of a complainer’s sexual history with the accused, sexual proclivities, or past falsehoods being presented at trial other than specific circumstances. The determination was that the exclusion, and the reasons for it, created a heightened risk of miscarriages of justice for those accused of sexual offending.

The Supreme Court decision is legally tricky and potentially politically anachronistic. On the politics, while the Lord Advocate stated that “safeguards remain firmly in place” following its publication; Rape Crisis Scotland have warned that the decision may dissuade women from reporting sexual offences for fear of the indignity and invasiveness at trial. Meanwhile, a protest for reform to bad character evidence rules by the campaign group Justice for Innocent Men Scotland (JIMS) drew around 200 people to the Scottish Parliament.

Under the debate flows a current of major reform to the management of sexual offences in the Scottish criminal justice system that has gained momentum in the past decade. Research into the possibility of false or prejudicial understandings of rape, and women, distorting juror decision making emerged in parallel with striking statistics that indicate the overall conviction rate for rape and attempted rape is around 44% compared to 88% for all other crimes. With the aim of improving both the management of sexual offences in courts and the experience of complainers in the criminal justice system, the Scottish Parliament recently passed the Victims, Witnesses, and Justice Reform (Scotland) Act 2025.

It is a good moment to contextualise the rules of bad character evidence and ask what potential impact the Supreme Court decision may have on the wider attempts to manage, or perhaps discern, justice in sexual offence trials.

Character Evidence and Why We Care About it

In the criminal trial, “character” refers to evidence that demonstrates what kind of person someone is and what they have done in the past.[1] Scots law, like many common law jurisdictions, has a general hostility to the admission of bad character evidence for the purposes of proof. That an accused or a complainer partook in previous crimes, has bad habits, or is of an otherwise unsavoury disposition is generally understood to be of no meaningful assistance to determining the probability of whether a crime took place (this is what is referred to as “relevance”). For that reason, an accused person’s previous convictions are generally not admissible (allowed) as proof. 

Sexual Behaviour and Character Evidence in Sexual Offences

That neat rule was – and is – untidier in practice. An “exception” developed in cases of sexual offending against women which allowed evidence of previous intercourse with the accused, lack of chastity, or immorality.[2] One problem with this exception was that the bad character evidence admitted against women in most cases did not have any relevant bearing on whether a sexual offence had taken place. Instead, it supported “rape myths” in that it suggested some women’s behaviour justified sexual offending against them.

To combat the problem, “Rape Shield” legislation was enacted. In its current form, s.274 of the Criminal Procedure (Scotland) Act 1995 prohibits bad character evidence against complainers in sexual offence trials, including:

• That the complainer is sexually or otherwise not of good character;

• That the complainer has at any time engaged in sexual behaviour other than that detailed in the sexual offence;

• That the complainer has engaged in behaviour that might suggest she consented or is not truthful or accurate about her allegation unless that behaviour was at or near in time to the sexual offence; and

• Unfounded allegations of conditions or predispositions (such as mental illnesses).

  
  

It is possible to admit this evidence if the process detailed in s.275 is followed. A judge must assess whether a specific instance of bad character is (1) relevant to the probability of the offence having happened; and (2) that admitting the bad character evidence is more useful to proving the offence than the potential impact it will have on the trial or the complainer (particularly her dignity and privacy).

Taken together, the provisions imply that sexual behaviour or other character evidence might be relevant to determining whether a sexual offence took place if it is proximate to the alleged sexual offence or if it withstands the careful scrutiny of a judge.

The Remonstrance

The problem addressed by the Supreme Court arose because in the wake of the Sexual Offences (Scotland) Act 2009 courts developed case law that supplemented, and arguably usurped, these legislative rules by limiting when bad character evidence will ever be relevant.

The 2009 Act for the first time defined consent in sexual offences as “free agreement.” It further states that consent to one form of conduct (a sexual liaison in the past, for example) will not imply consent to any other conduct and consent can be withdrawn at any time. Because of these definitions, the Scots courts reasoned that the common law rules of relevance would exclude almost all previous sexual activity between a complainer and the accused, any sexual desires or proclivities expressed by complainers, as well as most disputed claims about past falsehoods (for example, previous false allegations that were not subject to charge). If consent could only be given to an act at the time it occurred and withdrawn at any time, then why would previous or post-libel sexual behaviour ever be indicative of consent?[3] Furthermore, alleged falsehoods that could not be proven were a distracting collateral issue of no real value to the matter of proof - so the reasoning went.

This appeared to shove the Rape Shield legislation to the side (if the bad character evidence was excluded at common law, it could not be admitted under statute). But it also created a more restrictive test of relevance than the rules in s.274/s.275 implied. The Rape Shield necessarily indicates that some bad character evidence about past or other sexual behaviour between the accused and complainer, for example a later (consensual) sexual liaison, may be allowed as proof if in the given facts and circumstances it did bear on the probability of the offence having occurred and it was not outweighed by issues of justice, privacy, and dignity. Yet, by 2020 the High Court ruled in the case of Oliver that previous sexual activity between a complainer and accused was “unlikely ever” to be admitted at common law as relevant in a charge or rape, and that consensual activity after an alleged sexual offence would only possibly be relevant if it was “immediately afterwards”…such as “a few hours or one or two days”.[4]

According to the Supreme Court, this amounted to a near blanket ban on bad character evidence of the complainer being admitted to court. That was inappropriate, not least because it was constitutionally dubious for the common law to trump legislation enacted by parliament. Also, importantly, because it was possible to envisage instances where bad character evidence of a complainer could be relevant to determining the probability of whether she consented to the sexual offence in question. The Justices instead encouraged a more careful approach that, on a case-by-case basis, could realistically allow some bad character evidence, particularly sexual history evidence, to be admitted.

The (Proverbial) Jury is Out

Whether the arguments advanced by the Supreme Court are doctrinally or constitutionally justified is outwith this short introduction to the issue. But it is worth noting that while the criticism is sharp, it blurs if you stare at it closely enough.

The Lord Advocate’s reassurance following the “clarification” by the Supreme Court was careful to state that “statutory” safeguards remain in place. The implication being that the control of bad character evidence in sexual offence trials will now continue to be dealt with under the Rape Shield legislation. The protection will be further enhanced with new provisions offering Independent Legal Representation for complainers subject to s.275 applications.

That still leaves the case-by-case assessment of “relevance” (which remains part of the s.274/5 scheme) open to judicial interpretation. And, despite the developments in both common law and legislation detailed above there remain issues in practice of wholly irrelevant bad character evidence being used in trials against complainers (often leaking in without Rape Shield legislation being engaged at all). In addition, there have been a myriad of concerns from the profession about the training, process, and practical implications of conducting trials where previous sexual history is excluded.

The Scottish Government and leadership within the Scottish legal profession have explicitly sought to improve justice in the ever-increasing sexual offence caseload of the courts. That is surely a justified position given the research about current and historic injustices of sexual offences in Scotland. But aspirations alone cannot overcome legal complexities. Without further clarity and public engagement, the management of bad character evidence in sexual offence trials is still open to debate and, with that, uncertainty for parties at trial.

[1] Mike Redmayne Character in the Criminal Trial (Oxford, OUP: 2015) 2

[2] Dickie v HM Advocate (1897) 24 R (J).

[3] CJM v HM Advocate [2013] HCJAC 22; SJ v HM Advocate 2020 SLT 642; LL v HM Advocate 2018 JC 182.

[4] Oliver v HM Advocate 2020 JC 119 and later further qualified by CH v HM Advocate [2025] HCJAC 25