Reviewing Independent Legal Representation in Scotland’s sexual offence cases
Published: 21 August 2025
UofG legal experts have led a review for the Scottish Government into the delivery of Independent Legal Representation for complainers at hearings, to determine whether evidence of their sexual history or character should be admitted in sexual offence cases
Fiona LeverickExperts at the UofG’s School of Law have led a review for the Scottish Government into the delivery of Independent Legal Representation for complainers at hearings to determine whether evidence of their sexual history or character should be admitted in sexual offence cases in Scotland.
Findings show that a salaried model appears to be the most appropriate model for delivery of Independent Legal Representation (ILR), and that a trauma-informed service is vital to meet the needs of complainers in cases of sexual violence and to minimise the risk of re-traumatisation.
In Scotland, the Victims, Witnesses, and Justice Reform (Scotland) Bill provides for a system of ILR for complainers in sexual offence cases where an application is made to admit evidence of their character or sexual history under section 275 of the Criminal Procedure (Scotland) Act 1995. ILR refers to in-court legal representation in relation to a part of the criminal process, where the complainer is recognised as a party to proceedings.
However, exactly how ILR will become operative in Scotland has yet to be confirmed. The Scottish Government provided funding for the School of Law to undertake this research and make recommendations for effective delivery.
The research team - comprising of Professor James Chalmers, Professor Jacqui Kinghan, Professor Fiona Leverick and Mr Eamon Keane - have internationally recognised expertise in criminal law, evidence and procedure, legal aid and access to justice.
The team undertook a literature review of existing ILR schemes in comparable adversarial jurisdictions in Australia, Canada. Ireland, England, Wales and Northern Ireland, and conducted semi-structured interviews with 41 participants from these comparator jurisdictions and within Scotland.
Justice Secretary Angela Constance said: "I know from listening to victims and survivors of sexual offences that their experiences of the justice system can lead to re-traumatisation. One especially intrusive aspect of criminal procedure arises when applications are made to lead evidence in court about a victim’s sexual history. The Victims, Witnesses, and Justice Reform Bill includes proposals to provide free, independent legal representation (ILR) to victims in these circumstances.
"The Scottish Government commissioned this research as part of work to explore how ILR could best be delivered. The report’s key findings were considered by a wide range of stakeholders, and their views, along with the research, provide important building blocks to inform our implementation plans for ILR if the Bill is passed."
Eamon Keane, who led the research at the School of Law, said: "The issue of how best to support complainers in sexual offence cases is a concern for policymakers worldwide.
"One way of doing this is by providing ILR, which we know has the potential to make a real difference to complainers. Evidence strongly suggests that it can give complainers a sense of agency that they otherwise lack, even where the legal outcome is not the one that they desired. As one interviewee put it, ILR can make “[the complainer’s] experience of one particular part of one particular flawed system a bit more bearable”. The provision of independent legal advice and representation also ensures that complainers’ privacy rights are fully protected."
The research identified key factors that need special consideration when designing an ILR service for complainers in sexual offence cases. It shows that a salaried model, where a cohort of lawyers would be employed to provide the service, and based ideally in a third sector organisation, would be most effective, with those who were interviewed observing a greater number of advantages and fewer disadvantages to this approach.
In addition, the disadvantages of the salaried model were seen as more easily addressed compared to those of the private practice model. Some interviewees working with private practice models told researchers that if they could start again and design their system from scratch, they would choose a salaried model. Any system of ILR in Scotland would also have to entail the instruction of advocates or solicitor advocates to deal with cases in the High Court of Justiciary.
The research further suggested providing a backstop ad hoc panel of solicitors in private practice to deal with conflicts of interest or capacity issues that may arise.
The need for a trauma-informed service was identified as vital to meet the needs of complainers in cases of sexual violence and to minimise the risk of re-traumatisation. Finally, the research concluded that complainers must have their freedom to instruct their own legal representative protected if they so wish.
Some of the themes underpinning the report on ILR were the subject of discussions at a workshop on Reforming Rape Prosecutions, hosted by the School of Law in April 2024, and funded by the Royal Society of Edinburgh.
First published: 21 August 2025