Swinney warns against return to ‘distressing’ questioning in sex assault cases

First Minister John Swinney has said it would be “deeply regrettable” if a Supreme Court ruling leads to the return of “distressing” questioning in sexual assault cases.

Mr Swinney was speaking after five judges at the UK’s highest court ruled the approach taken by courts in Scotland, by restricting questions on a victim’s history, “risks depriving a defendant of their right to a fair trial”.

The First Minister said it would be “deeply regrettable if there was any situation where we have a return to some of the practices in courts that have been deeply distressing to victims of sexual crime”.

He added: “I want to set out today my desire that that is not the outcome that arises out of the Supreme Court judgment.”

The Supreme Court judges ruled on Wednesday that “excessive restrictions on the evidence or questioning which may be led at trial” could be “incompatible with the right to a fair trial”.

The judges made clear the defence should “be able to seek to undermine the credibility” of the victim, and “rely on evidence of her behaviour, sexual or non-sexual, before or after the events in question if it is relevant to the question of consent”.

At Holyrood on Thursday, Mr Swinney was questioned on the impact the ruling will have, with Tory MSP Murdo Fraser warning: “Legal experts say this could trigger multiple appeals by those convicted of sexual offences.”

The Supreme Court ruling came as the judges dismissed the appeals of two men, David Daly and Andrew Keir, against their rape convictions.

While the judges said the two men had not had their right to a fair trial breached, they added: “The Scottish courts are under a duty to modify their current approach.”

Labour MSP Claire Baker asked Mr Swinney what reassurances could be given to women who “are now concerned about the risk of appeals and having to go through that process”.

Ms Baker also asked what the ruling would mean “in terms of future evidence in rape and sexual assault cases”.

Speaking at First Minister’s Questions, Mr Swinney stressed there is no need for ministers to change the law in the wake of the judgment.

He said: “There is in my view no requirement for there to be legislative change, this is about court procedures.”

But he accepted “the type of questions which are led, the type of evidence that is led” can cause “enormous distress to victims, who are invariably women in these cases”.

The First Minister added: “The Government will consider carefully the implications of the ruling, but obviously the courts will have to reflect on these issues.”

Judges in cases involving sexual offences will have to “reflect this ruling” in their handling of cases, Mr Swinney said.

He told MSPs: “This is therefore a matter for the courts, which operate independently of the Government, and I know the judiciary will be considering the issues that arise as a consequence of the Supreme Court judgment.

“But there is no requirement for us to change the law in these matters.”