Rape Crisis Scotland has published a briefing paper on the Bonomy review, warning of significant concerns about the impact of recommended changes on rape conviction rates.
The full text is below; you can also download it here.
In November 2010, the Justice Secretary Kenny MacAskill asked Lord Carloway to undertake a review of Scottish law and practice following what is known as the Cadder ruling. This review recommended that the requirement in Scots law for corroboration be removed. In February 2014, the Justice Secretary announced that Lord Bonomy would head an independent reference group to consider what additional safeguards and changes to law and practice may be needed following the planned abolition of corroboration in the Criminal Justice Scotland Bill. Rape Crisis Scotland has been represented on this reference group.
On 14th October 2014, Lord Bonomy published a consultation paper seeking views on issues relating to the removal of corroboration. The deadline for responses is 28th November 2014. Although the consultation paper seeks views on a broad range of issues, this briefing paper is focused primarily on the question of jury majority, as this is an issue which has the potential to have a significant impact on justice for survivors of sexual offences.
The case for removing corroboration
As most rapes take place in private, with no witnesses and frequently little if any physical injury, the requirement in Scots law for corroboration arguably means that our justice system is ill equipped to respond effectively to the reality of rape (as opposed to the stereotype of a stranger rape involving a significant amount of physical injury). According to figures published by the Crown Office (1), only a minority of rapes reported to the police ever proceed to court. For this reason, Rape Crisis Scotland has supported the removal of the requirement for corroboration. Cases would still need to pass the threshold of having sufficient evidence to have a reasonable prospect of conviction. The removal of corroboration is about improving access to justice by removing a barrier to cases reaching court. It will not in itself necessarily lead to an increase in convictions.
Increasing the jury majority – more rape cases to court but fewer convictions?
The Bonomy consultation paper sets out proposals to significantly alter jury decision making. At present, juries reach a verdict – guilty, not guilty or not proven – by a simple majority i.e. 8 out of 15 members. The consultation paper proposes that this be changed to one of two options: a unanimous verdict, where juries must reach the same decision but could return a verdict by qualified majority (where all but one or two jurors must reach the same decision) or by a weighted majority, where a certain percentage of the members of the jury must reach the same decision.
The proposal for moving to a system of unanimous verdicts is based on the theory that a jury should act as a collective unit seeking to come to an agreed view about truth. However, the reality for rape trials is that jury decision making is influenced by prejudicial attitudes and sexist stereotypes. Research indicates that pre-existing attitudes can negatively affect the way in which jurors interpret evidence in rape trials. Research conducted in England and Wales using mock juries suggests that notions of how a ‘real’ rape victim would react influences assessments of credibility, for example in relation to delayed reporting or signs of significant physical injury (2).
Rape Crisis Scotland is very concerned that, in light of what we know about the problematic attitudes which may be affecting jury deliberations on rape cases, increasing the jury majority will not lead to a consensus around truth but instead make it even more difficult to secure a conviction. As much of the debate around removing corroboration has focused on its impact in particular on sexual offences, it would be very difficult to see its removal leading to measures being introduced which actually worsened the prospect of rape survivors being able to secure justice in Scotland.
The Scottish Government has previously given a commitment to introducing judicial directions in sexual offence trials to instruct juries that inferences should not be drawn from delayed reporting or lack of significant physical injury. Implementing this commitment would be a positive step in trying to ensure that jury decision making is based on a factual appraisal of the evidence, rather than on assumptions about how someone is likely to react during or after a rape or sexual assault.
The Not Proven Verdict
Rape Crisis Scotland believes that the ‘not proven’ verdict should be abolished. The not proven verdict is most commonly used in rape cases. According to the Scottish Government (3), the proportion of people receiving a not proven verdict for rape or attempted rape was 15%, the highest for any crime type.
Jury members can be notoriously reluctant to convict in rape cases, even in cases where there is significant evidence, and we are concerned that the not proven verdict could contribute to wrongful acquittals.
An argument which has been used in the past for retaining the not proven verdict is that it at least enables complainers to be reassured that the verdict didn’t mean that the jury didn’t believe them. However, a not proven verdict is still an acquittal, and can be just as devastating as a not guilty verdict. Following an article in the Daily Record about the number of men accused of rape who were acquitted by means of the not proven verdict, a number of rape survivors and their families wrote into the paper to tell of the devastating impact this verdict had on their lives (see for example http://www.dailyrecord.co.uk/news/scottish-news/mum-who-endured-double-rape-1393744).
We believe that there is no convincing argument for retaining this verdict and that moving to two verdicts of guilty and not guilty would lead to a clearer and less confusing jury decision making process.
The review raises fundamental questions about how our legal system works in Scotland. The outcome of the review has the potential to have a profound impact on our justice system’s response to sexual offences in particular, and we would encourage all organizations and individuals with an interest in this issue to participate in the consultation.
1 COPFS statistics for 2008-09 published in 2011
2 Ellison & Munro, ‘Reacting to rape: exploring mock jurors’ assessments of complainant credibility’ (2009), British Journal of Criminology 202 & ‘A Stranger in the Bushes, or An Elephant in the Room? Critical Reflections Upon Received Rape Myth Wisdom in the Context of a Mock Jury Study’ (2010), New Criminal Law Review. 13.4: 781-801
3 Criminal Proceedings in Scotland, 2012-13, Statistical Bulletin, Scottish Government
Copies of the consultation document can be found here:
For more information on this briefing, please contact Sandy Brindley at Rape Crisis Scotland Tel: 0141 331 4180
or email: firstname.lastname@example.org
Published: 12th November 2014
New legislation around Forced Marriage came into effect on 30 September 2014 - Section 122 of the Anti-Social Behaviour, Crime and Policing Act 2014 (the Act) came into effect on 30 September 2014 and makes it an offence to force someone into marriage in Scotland.
The new legislation will help protect victims of forced marriage from a practice which is a fundamental breach of human rights, and is frequently accompanied by physical, psychological, financial, sexual and emotional abuse.
The new legislation will:
• Ensure victims of forced marriage are protected;
• Send a clear message that forcing a person to marry against their will is unacceptable;
• Provide greater clarity for frontline professionals and communities that the practice of forced marriage is totally unacceptable and will not be tolerated;
• Decrease the number of victims being forced into marriage, and;
• Deter offenders from actively seeking to force someone into marriage.
The main elements of the new legislation are:
• Criminalisation of forcing someone to marry against their will
• Criminalises the luring of a person to a territory of a state for the purpose of forcing them to enter into marriage
• Using deception with the intention of causing another person to leave the United Kingdom for the intention of forcing that person to marry.
There may be occasions when a victim requires the protection of a Forced Marriage Protection Order, whilst those who have attempted to force the victim to marry will be held to account using the new legislation.
You can find out more about forced marriage in Scotland and where you can seek help here.
Published: 8th October 2014
Scotland welcomes the news that the Istanbul
Convention is now
in force as of Friday 1st August; 14 member states of the
Council of Europe have ratified this new human rights treaty and a further 22
states have signed it.
The Istanbul Convention is a European treaty whose provisions will enable the member states to challenge and prevent violence against women effectively, and to meet the needs of those who have had these crimes perpetrated against them. The Convention outlines minimum standards to prevent, prosecute and protect women from rape and physical violence, female genital mutilation (FGM), stalking, forced abortion, honour violence and forced marriage.
Although the UK Government is a signatory to the Convention, it has yet to ratify it. Council of Europe Secretary General Thorbjørn Jagland urged states which have not already done so, to sign and ratify the Istanbul Convention:
"All need to act now to improve the lives of the many women and girls who are subjected to violence, simply because of their gender," he said in a statement.
The 47 member states of the Council of Europe must now
introduce legislation to "ensure that victims have access to services
facilitating their recovery from violence" and to criminalise many
different forms of violence perpetrated against them – some of these have never
been recognised as criminal offences in some member states until now. Council
of Europe statistics show that gender-based violence accounts for the deaths of
at least 12 women in Europe every day and one in three women in the European
Union has experienced physical and/or sexual assault since the age of 15. In
2013 domestic violence claimed the lives of 121 women in France, 134 in Italy
and 143 in the United Kingdom, according to national statistics.
You can find out more about the Istanbul Convention here.
Published: 5th August 2014
The Criminal Justice
(Scotland) Bill 2013 currently going through parliament proposes a number of
changes to the criminal justice system. The Stage 1 debate will be held in the
Parliament on Thursday the 27th of February.
One of the key changes is the removal of the requirement for corroboration in criminal cases. We are calling on MSPs to support the removal and improve access to justice for survivors.
This briefing intends to address some of the key questions and concerns which have been raised as part of this debate.
What is Corroboration?
Why should it go?
What will the removal mean?
Issues and concerns
‘There could be a lower conviction rate – with higher
numbers going through’
What is Corroboration?
Dictionary definitions of “corroborate” include “to make strong” or “to strengthen”; “to confirm”; “to support with other evidence”; and “to make more certain”. These definitions and explanations of what constitutes corroboration appear straightforward to apply.
However in Scots Law this means every essential element of the key charges must be corroborated i.e. have 2 different forms of evidence. So in a rape case you need 2 forms of evidence that penetration took place, 2 forms of evidence that there was no consent, 2 forms of evidence of mens rea (1.) i.e. that the accused knew there was no consent and acted with malintent and 2 forms that it was the accused who committed the crime.
Corroboration as a legal principle in Scots law is different from the application of evidence which supports the credibility of the allegation. Support can be found in evidence that does not at present amount to the legal definition of corroboration, but is none the less highly persuasive. Currently this narrow technical meaning can be difficult to interpret and is not found in any other legal system anywhere in the world, including the international criminal courts.
This means there are often cases where there is a significant amount of quality supporting evidence, but yet not enough to corroborate every element and thus the case cannot proceed. This is particularly the case for crimes of domestic abuse and sexual violence which in the main happen in private, without witnesses.
Why should it go?
Since the Cadder ruling (which means that the Police cannot question the accused without legal representation there) it means that there is even less chance of obtaining admission and relevant information from the accused. This had a major effect on outcomes in sexual crime cases. Following Cadder there was a 31% drop in proceedings from the previous year.
In the past there may have been some admission of intercourse/sexual contact so at least some evidence has been obtained. Increasingly more accused persons are being advised by their lawyer to make no comment so gathering evidence from the accused person has been negatively affected.
The law is constantly changing. As it changes so we need to evolve.
This move takes into account in particular the experience of domestic abuse and sexual violence cases which are disproportionately affected by the requirement for corroboration. Crimes which are in the main committed in private and involve fear, shame and secrecy which often prevent prompt disclosure. For many other crimes it is likely to have less of an impact.
Currently there are a significant numbers of victims of sexual violence and domestic abuse whose cases do not get to court - 2800 cases of domestic abuse in the last 2 years and 170 rape cases.(2)
The Lord Advocate stated in his evidence to the Justice Committee that “COPFS consider that this provision will allow proceedings to be raised in a number of cases where at present the Crown cannot proceed due to a technical lack of corroboration but where otherwise the available evidence is of high quality and supports the victim’s version of events.” This is a move supported by Police Scotland.
What will the removal mean?
The removal will mean that some cases, where there is a significant amount of high quality evidence, but which currently could not proceed, would proceed to court. Some examples of the kinds of cases which currently can’t proceed are included later in this briefing.
If the requirement goes there will still need to be an assessment before proceedings are taken comprising of:-
a. a quantitative assessment– is there sufficient evidence of the essential facts that a crime took place and the accused was the perpetrator?
b. a qualitative assessment – is the available evidence admissible, credible and reliable?
c. on the basis of the evidence, is there a reasonable prospect of conviction in that it is more likely than not that the court would find the case proved beyond reasonable doubt?
The number of cases affected is likely to be relatively low. A review undertaken by the Carloway Review, The Crown Office and also Police Scotland indicate similar findings in terms of what corroboration would mean for proceedings.(3)
The numbers may be low but
they are not insignificant, both for those victims affected and for the wider
public safety concerns. This is about holding to account those who have committed
This means that cases where there is a significant amount of credible supporting evidence, but where not all aspects of the case are corroborated can proceed to court. The process in court; the weighing up of the evidence by the Sheriff and/or the jury will not change. It will still remain that to secure a conviction the case needs to be proven beyond reasonable doubt.
There have been a number of issues and concerns raised about this move. We will explore these in more detail here.
It is a long standing practice and unique to the Scottish Justice System
Is that a reason to retain it?
There are many aspects of law which have been here for hundreds of years. Sometimes we need to reflect and change to ensure we are the just society we aspire to be. Our justice system needs to be fit for purpose.
In Scotland until 1982 you could not be raped in marriage. Gay Marriage was agreed only recently by the Scottish Parliament – Sometimes we need to be bold in the face of opposition to do what is right to ensure equality and justice.
If it is unique then maybe we need to ask why – why does no-one else feel that it is the only way to ensure a fair trial?
Very little of the legal profession's criticism of the Government's proposal to remove the requirement for corroboration has had anything to say on how else the situation could be improved. Almost none of it raised any concern about those who are victims of these crimes. The clamour for the status quo does nothing to address the serious concerns that dangerous and abusive individuals are not being held to account.
What about miscarriages of justice?
This has been repeatedly stated – but there has yet to be presented any evidence that legal systems without corroboration have any higher rates of miscarriages of justice.
When this phrase is used the miscarriage of justice being referred to is for the accused. But what of the miscarriage of justice for the victim?
The continued strengthening of the rights of the accused has not been matched by corresponding concern for the rights of the victim. Only now with the new Victims & Witnesses Bill will a victim have an automatic right to special measures such as a screen so they do not have to see their attacker in court – that it has taken until now for even this most basic of facilities to be agreed speaks volumes as to whose rights are being protected within this system. Still the victim has no representation; no-one there with the specific purpose of ensuring their rights, concerns and privacy are respected.
We absolutely support everyone’s right to a fair trial. We just believe that the process should be fair for the accused AND the victim.
As the Lord Advocate stated in his evidence –“As a modern, 21st century society, Scotland must ensure that its criminal justice system is human rights compliant not only for suspects and accused but also for victims and witnesses, a fact that Lord Carloway recognised in his report”
It will be one person’s word against another
This has been repeatedly stated – this is misinformation, without any basis in fact.
All cases will be reviewed by the Crown Office.
The abolition of the requirement for corroboration will require the introduction of a new test for prosecution, as outlined above, which will focus on the quality of the evidence not just the quantity.
What will remain unchanged is that only cases which have a reasonable chance of conviction will proceed.
What about the other safeguards which need to be in place?
Let us be clear here. The basis of the verdict will not change. The case still has to reach a high threshold to secure a conviction: that the case has to be proved beyond reasonable doubt. That will not change and this is the mainstay of the safeguard against miscarriages of justice.
There are currently a range of protective safeguards for the accused including the right to silence with no negative inference, the right to legal representation from the very outset, no access to medical or personal records is allowed and no previous convictions (with the exception of the rarely used provisions in the Sexual Offences (Criminal Procedure) (Scotland) Act 2002) can be referred to. None of which are available to the victim whose whole life is scrutinised as part of their experience in court.
In the court setting where the majority of sexual crimes are heard in front of a jury, the jury is still the main decider of the outcome. The Bill is also looking at a change to the Jury majority – proposing a change in numbers from a simple majority out of 15, to 10 out of 15.
We do have some concerns about the impact this might have. Research commissioned by the Scottish Government (4) shows that nearly a quarter of the Scottish public think women are at least partly responsible for rape if they have been drinking, 27% of people blame women if they are wearing revealing clothing at the time of the attack, 29% if she has been flirting, 15% depending on the number of her previous sexual partners.
Juries are made up of members of the public and at least some of them are likely to hold these kinds of attitudes. We have real concerns about what this means for jury decision making in rape cases, and particularly so where a larger majority is required to reach a decision.
Often these are the factors which play out in the court room – prejudicial views that blame women and hold them responsible for rape – and attitudes which are exploited by the defence.
One young survivor in contact with Rape Crisis Scotland spoke about her experience. Her attacker was convicted, but the jury was not unanimous in its verdict. Despite all the evidence outlined below some people still did not believe a conviction was justified.
'I ran away from his home half naked in the snow; immediately after I left people heard me say, “help me, I have been raped”; his neighbour heard my screams; there was blood all over his flat; I had bruises covering my entire body; I had painful vaginal tearing; forensic scientists even showed how my tights had been ripped off, and how much force was used. It was ‘open and shut’. But someone still didn’t believe me.'
A previous consultation on the safeguards which should be considered was carried out (5) and following debate the Government have commissioned Lord Bonomy to review these issues further.
What about false allegations?
The underlying assumption in much of this is that women commonly lie about rape. This is untrue, yet attitudes prevail, including those held by people experienced within the justice system.(6)
Our recent campaign on false allegations (7) debunks many of these myths and has the backing of Sir Stephen House who is clear that “There is nothing to suggest either anecdotally or evidentially that false reporting of rape is prevalent, in fact such cases are very rare.”
Some of those against the change state that arguments such as ours are ‘ill informed’, ‘using emotion and anecdote’ (8)
If by that they means that the push for change is based on the consideration of real experiences, real lives and the impact of being involved in the criminal justice system then we would agree.
Statistics don’t often make sense and effect change. But real people talking about their experience can, and should.
Survivors have waived their anonymity and spoken about traumatic and difficult experiences, hoping that some learning and change might come from the difficulties they have faced.(9)
Victims have often been silenced through rape and abuse.
Most people do not report sexual violence. Reports vary as to the levels of underreporting. At local Rape Crisis Centres on average almost 1 in 4 report (10), however other research has indicated it could be as 1 in 10 (11). Many say they do not report because they feel there is no point, they fear they will not be believed, that court will be too difficult, that they will be judged and their lives exposed.
So the majority of sexual crimes are not reported. Only a very small proportion of cases ever get to court. Is this the justice system we are so proud of?
The 2012/2013 Scottish
Rapes & attempted rapes reported to the police: Rapes & attempted: 1,462
Rapes & attempted rapes prosecuted: 138
Convictions for rape & attempted rape: 77
To sideline or diminish the significance of the traumatic story at the heart of so many cases and to insist that this sort of information cannot hold evidential weight is simply wrong.
We have also called for
research into jury decision making, as has been done in England, to explore
some of the influences and examine how able juries are to deliver decisions
that are fair and just, given some of the rape myths which are prevalent in our
society and that these play out, and are deliberately played out, in the court
None of the legal profession support it
That is not true. Let us not forget we are having this conversation because of the Carloway Review which was prompted by the Cadder Ruling. Lord Carloway (who is currently the 2nd most senior judge in Scotland) is very clear in his belief that it should be abolished, based on his review of the evidence which he outlines clearly in his report.
The Lord Advocate spoke very powerfully about why he supports it. He stated in his evidence that “COPFS consider that this provision will allow proceedings to be raised in a number of cases where at present the Crown cannot proceed due to a technical lack of corroboration but where otherwise the available evidence is of high quality and supports the victim’s version of events.
The Lord Advocate and the staff at COPFS are the ones who review the cases passed from Police Scotland. They see the cases which don’t proceed. They see the evidence which could stand a reasonable chance of conviction but which do not go ahead. They are best placed to make a fair assessment of the need for and rightness of this decision.
Police Scotland are also clear about their support. Assistant Chief Constable Malcolm Graham has stated: “Police Scotland supports the recommendation that the absolute, quantitative requirement for corroboration should be abolished and believes it is the quality of evidence, not quantity that should be taken into account."
If we change it there won’t be the same motivation for the Police to secure evidence
Let us be clear this bill does not aim to take away the need to seek corroborative evidence. The Police will still be looking for all possible aspects of the crime to corroborate the account of what happened.
Since the formation of Police Scotland there has never been such scrutiny of the crime of rape, with each division now having a rape investigation unit with specialist officers trained in this field.
Every single rape reported in Scotland where there are no proceedings is examined by the Rape Review Team and the case and its Policing practice examined.
There is now a case tracking system in place for rapes so that we can get accurate figures about what happens once a report is made – for the first time ever giving us accurate conviction rates.(13)
Rape reports are up at alarming rates. This year there has been a 35% increase in sexual crimes, up on the 16% increase in the previous year – so that now you are more likely to be raped than robbed in Scotland.
Every adult who reports a sexual crime has a referral for support to Rape Crisis Scotland unless they opt out. As part of that process survivors are asked agreed questions about the Police and their response. This information is then shared anonymously with the Police. Never has there been such scrutiny and openness to learning and improvement.
Part of the increase in reporting is about increased confidence in the Police. The Police continue to work hard to get their house in order – there needs to be follow through with the rest of the Justice system.
There will be more plea bargaining/There could be more appeals
How do you know that? There is no basis for this suggestion. If there are outcomes which are unforeseen, which can often happen with legislation, then we address it. This is not a good enough reason to maintain the status quo which is failing survivors.
Clearer data is needed to allow better analysis of what is happening so we can clearly reflect on the impact of changes – something Rape Crisis Scotland has been calling for for a long time.
To make no changes to address current difficulties because of potential future difficulties leaves us with a status quo, which is failing the needs of many, but especially women and children experiencing violence and abuse from dangerous men.
Complainers will face a harder time in the dock
To use as an argument, and several have, that opposition to the removal is done out of a regard for the wellbeing of victims is a very poor argument indeed.
Currently even where there is overwhelming evidence and clear corroboration, do you think this makes the defence counsel less likely to give the witness a hard time? That is not what survivors tell us.
Being a witness in a court case can be a traumatic experience. It is up to us all to ensure that any witnesses, particularly those who are the victims of serious crimes, are as supported and protected as possible. We should all be acting to improve this experience, not to prevent people even reaching court.
This is an issue for the judiciary to address, given it is their responsibility to make sure questioning is relevant, proportionate and reasonable, and it is heartening to see judicial training on sexual violence outlined in the new Government Strategy on Violence against Women and Girls.
Survivors tell us often that questioning goes on for days, much of it questionable/irrelevant and not related to the crime. Survivors tell us their employment, their family, their previous relationships, their mental health, their use of contraception and indeed their whole lives are up for scrutiny.
A lot of relevant information about the accused is not admissible because it would prejudice the jury, but much of the focus of the evidence in sexual crime cases is aimed at prejudicing the jury against the complainer.
Your medical records are not looked at if you are robbed or if someone tries to murder you, but if someone rapes you it is likely that they will be - that private records covering conversations with your GP will be scrutinised, along with potentially other private records including education, Social Work, Health and counselling, any of which can be scrutinised for anything which can be used against you.
What happens in court is often more about the victim than it is about the crime. The use of sexual history and character evidence is often playing into the worst and most prejudicial beliefs in society – eg involving the stigmatising of people with mental health problems.
1 in 4 of us will experience depression – does that mean we are entitled to less justice than others? There is no evidence that people with depression lie more than others – why should that even be in the court room?
That is why Rape Crisis Scotland has called for increased legal protection and representation as part of the Victims & Witnesses Bill – to challenge this practice and improve the right to privacy for rape complainers – on a human rights basis. Article 8 says we have a right to privacy and in line with the European Directive on Victims’ Rights – it appears this is true – unless we are raped.
Revictimising a witness should not be part of any court case, and goes against the European Directive on victims’ rights.
The court culture needs to change – and Rape Crisis Scotland is calling for increased access to legal advice and representation around what information can be used.
There could be a lower conviction rate – with higher numbers going through
Much has been made of this move as being about improving conviction rates.
As The Lord Advocate stated in his evidence “the abolition of the requirement of corroboration is not about improving detection or conviction rates. It is about improving access to justice. It is about changing the law to ensure that criminals are not immune from prosecution, protected by complicated rules of evidence that create injustice. And it is about ensuring that the victims of those crimes do not have to sit in silence but have the opportunity for their voices to be heard”
There has been so much focus on corroboration that it has obscured the fact that this is part of a wider Bill – the Criminal Justice Bill, which along with other changes included in the Victims &Witnesses Bill are looking at a number of changes within the Criminal Justice system including having the choice of a female forensic examiner and automatic rights to special measures; measures which improve the justice system and are a step in the right direction in ensuring those who are guilty are held accountable, victims’ rights and privacy are protected, wider public safety is improved and the justice system is more fair, accessible and accountable.
This is one important area, but much more remains to be done.
The Appendix to the Lord Advocate's evidence submission to the Justice Committee included several examples of cases where the requirement for corroboration prevents further proceedings. These included:
The victim was at home asleep at night. She woke up to find the accused, who was a complete stranger, standing in her bedroom, brandishing a weapon. He raped her and threatened her, telling her not to report the crime to the police after he left. He also forced her to wash herself to get rid of evidence. She was terrified and did not contact the police. The following day whilst she was out, the accused entered the house again and stole items which may have linked him to the crime had they been forensically examined. A number of witnesses saw the accused taking these items away. The accused was clearly trying to destroy any evidence of sexual activity. The victim is credible and reliable and there was recent distress after the incident and the circumstances are highly supportive of her account. As there is no corroboration of penetration, we cannot prosecute the charge of rape.
The victim is a girl under 12 years of age. She was going to play with friends when she was grabbed by the accused and pulled behind a building. She recognised the accused as he lives near her. The accused unfastened his trousers and she could see he was wearing distinctive underwear. He put his hand under her clothing and indecently touched her. She tried to run off but he stopped her and threatened her. She managed to run away again but tripped over items and was grabbed again. She managed to break free again, ran home and told a family member what happened. She was screaming hysterically and showed where the accused had touched her. The accused was detained a short while later and was found to be wearing similar clothing and underwear as that described by the victim. On going to the locus, the police found a number of items which the victim had described, all of which support the credibility of the account given by the victim. No action could be taken as there was no corroboration in law of the commission of a crime.
In a Moorov case, where the evidence of one complainer to each crime corroborates the other, the failure of one witness to be able to give evidence at the door of the court has resulted in the collapse of the case as a whole. The evidence of the one witness, even if there was for instance evidence to say the accused and the victim were seen together at the time of the offence, would not be sufficient to provide corroboration.
1. (Mens rea, derived from the basic rule of actus non facit reum nisi mens sit rea) - conduct does not make a man guilty unless his mind is also guilty. This essentially means that without malicious intent, under the criminal law of Scotland one it generally not considered guilty of a crime
2. Figures taken from the Lord Advocate’s evidence to the Justice Committee of the Criminal Justice Bill
3. Research undertaken by the
Crown Office for Lord Carloway’s Review found that of 141 cases reported to the
National Sexual Crimes Unit during the last six months of 2010 which were
placed on petition where no proceedings were taken, fiscals considered that 95 -
two thirds - would have proceeded to trial had there been no need for
The Crown Office have subsequently undertaken a similar review as part of their submission to the finance committee as part of the Bill . From this exercise they estimated an additional 6% increase in solemn proceedings and 1% in summary.
Police Scotland also undertook 2 similar exercises. The first indicated a potential increase in cases which have sufficiency to proceed to COPFS as at 4.77%. The larger scale review concluded that there would be an increase in 1-2% of cases which were reported to COPFS. They conclude “There is no great volume of unreported matters, where a named suspect is known to the police, which would be likely to ‘swamp’ the justice system should the rules on evidence be amended as indicated”
5. Consultation here http://www.scotland.gov.uk/Resource/0042/00425488.pdf Responses here http://www.scotland.gov.uk/Publications/2013/06/7066/0
6. See comments for example http://www.scotsman.com/news/lord-mccluskey-plans-for-reform-ill-judged-1-3268306
11. British Crime Survey 2009/10 only 11% of participants reported a serious sexual crime.
13. There is no current accurate data on conviction rates because the ways in which Police and Courts record crime are different – 2 issues – one of time eg reporting vs going to court and one is by crime and the other by perpetrator so we are not comparing like with like.
Published: 25th February 2014
If you are passionate about making real change that could benefit survivors of sexual violence, please join Rape Crisis Scotland in our appeal to MSPs to support the proposal to remove the current requirement for corroboration in Scotland.
The Stage 1 debate on this issue will take place next Thursday (27th February) in the afternoon. By contacting your MSP in advance of the debate and asking him to represent your views, and the interests of survivors, you will be taking a valuable step towards helping survivors obtain the access justice to which many are currently denied.
You can find more information on this issue here and here.
Next Tuesday (25th February) Rape Crisis Scotland will publish a very detailed briefing responding to many of the key questions which have arisen in the course of the debate around this issue.
It's important that MSPs receive as many individual responses as possible, and if you're writing that you highlight why you think this issue is important and why it matters to you. You can also download a template letter for guidance here, and you can find out who your MSP is and how to contact her/him here.
Published: 20th February 2014
Scotland has produced a Briefing
Paper on the Criminal Justice (Scotland)
Bill, which was introduced by the Scottish Government following Lord Carloway’s
review and takes forward his recommendations. Although the Bill covers a range
of measures, our focus is very much on matters of concern to victims of sexual
The deadline for submissions to the Justice Committee is 5 pm Friday 30 August 2013. You can download the Rape Crisis Scotland Briefing here.
Published: 1st August 2013
The Scottish Government today published crime figures for 2012-13.
The new figures demonstrate a significant rise in the level of sexual crime reported to the police, with 16% more rapes reported in the past year. While any increase of this size is worrying, it is hard to tell if the increase is due to the fact more rapes are taking place or because more survivors feel able to report what has happened to them. The police have taken considerable steps in recent years to improve people’s confidence that if they do report a sexual crime, they will be treated well and with sensitivity. It is likely that at least some of the increase in reported rapes is due to more people feeling able to come forward and speak to the police about what has happened to them.
You can see the full report "Recorded Crime in Scotland" here, and coverage in the Daily Record ("Scottish crime rate falls to lowest level on 39 years but concern voiced over rise in the number of rapes") here.
Published: 18th June 2013
Rape Crisis Scotland has published written
evidence to the Justice Committee on the Victim and Witnesses Bill, which is
currently going through Stage 1 in the Scottish Parliament.
As part of this, we are calling for all complainers in sexual offence cases to have guaranteed access to a female forensic examiner, as all available evidence shows that this is the preference of female and male survivors. We welcome the proposal to make access to Special Measures an automatic right in sexual offence cases. We have also made a number of proposals for issues not currently covered within the Bill to be considered. You can download a copy of our written evidence here.
Published: 22nd May 2013
The Scottish Government today announced that it is to proceed with plans to abolish the Scots law requirement for corroboration in criminal cases despite the fact the majority of respondents to a consultation from the legal profession were against the controversial proposal.
Rape Crisis Scotland welcomes the continued commitment of the Scottish Government to remove corroboration, a barrier to some credible and viable cases getting to court.
However, the Justice Secretary Kenny MacAskill has also announced a further consultation on "additional safeguards" which could be put in place if the requirement is removed, including proposals to increase the jury majority required to return a verdict: “Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration“ – the closing date for responses is 15/3/13 – (see http://www.scotland.gov.uk/Resource/0041/00410935.pdf)
The new proposals have been put forward in the light of the responses to a consultation which followed a review of Scottish criminal law and practice, led by Lord Carloway.
An analysis of consultation responses was also published today, “Reforming Scots Criminal Law and practice: The Carloway Report - analysis of consultation responses” (see http://www.scotland.gov.uk/Resource/0041/00410913.pdf ) which revealed that the view expressed most widely by those opposed to the abolition of corroboration was that the requirement is a "fundamental part of Scottish criminal procedure" and that there needs to be a "far more intensive review" before any decision can be made.
Currently a jury in Scotland can convict on a majority of eight of 15 jurors, but the consultation is now seeking views on whether this should be changed to require a majority of nine or 10 of 15 jurors to return a verdict.
Ministers are also consulting on plans to provide the trial judge with a power to withdraw a case from a jury on application by the accused where the judge considers that, on the basis of the evidence led, no reasonable jury could convict.
Lord Carloway stated in his report that, in the event that it was proposed to look at jury majorities, it would also be necessary to consider whether the "third verdict" remained appropriate – and in fact a further consultation was also announced today, seeking views on whether the “not proven” verdict should also be abolished.
Published: 19th December 2012
Rape Crisis Scotland welcomes Lord Carloway’s recommendation that the requirement for corroboration be removed, and hopes that this will better equip our legal system to respond effectively to the reality faced by the vast majority of rape survivors. As most rape cases take place in private, with no witnesses and frequently little if any physical injury, the requirement for corroboration has presented rape complainers and prosecutors with unique difficulties in mounting effective cases.
We are, however, under no illusions that this move will constitute a
solution in and of itself to the difficulties faced by rape survivors in
obtaining justice. Corroboration is not a requirement in England and Wales,
and the conviction rate for rape there is not significantly higher than
it is in Scotland.
While this development may represent a step forward for rape complainers in Scotland,
we must continue to examine all possibilities in our efforts to give those who
have suffered this devastating crime the justice they deserve.
While the need for corroboration has presented one barrier to many cases getting to court, public attitudes present a further obstacle to women seeking justice for rape. For as long as some jurors continue to hold attitudes that blame the behaviour, dress, demeanour or reputation of women for rape, they will continue to be denied justice.
Published: 17th November 2011
The Scottish Government has today published new statistics on recorded crime in Scotland. These indicate that reported rapes & attempted rapes rose in the year 2010-11 by 14%. It should be borne in mind however, that the period covered by the new figures includes the first four months of implementation of the new Sexual Offences (Scotland) Act which came into force in December 2010. The new and wider definition of rape which is included in the Act means that it is likely that the rise in reported rape is due at least in part to the fact that some sexual crimes which would previously known under other offence headings are now considered as rape. While this may offer something of an explanation, any rise in the number of rapes reported is a matter for concern. The level of detail currently offered by statistics is not sufficient to offer an insight into the extent to which the changes the Act have played a part in the rise we see today, and Rape Crisis Scotland will continue to campaign for improvements not only in survivors' experiences of accessing justice, but also in a statistical picture which will allow us to gauge the extent of those improvements accurately.
Today’s statistics also show a drop in the “clear-up” rate for sexual crimes to 55%. A crime is considered to be “cleared-up” where there is a sufficiency of evidence under Scots law, to justify consideration of criminal proceedings. Rape is a serious crime that can take a great deal of courage to report, and for someone who has been through this experience to be told that their case will not be prosecuted can compound a devastating experience still further. It is currently the case in Scotland that only around 10% of cases of reported rapes are prosecuted, and it is vital that we continue to make every effort to ensure that the remaining 90% of rape complainers also have access to justice.
You can see the new statistics at: http://www.scotland.gov.uk/Publications/2011/09/02120241/0
Published: 6th September 2011
The Crown Office and Procurator Fiscal Service has today published new figures on rape convictions in Scotland for the period 2008/9. These indicate that 7% of rapes reported to the police resulted in a conviction. While substantially higher than those previously extrapolated from other data made available by the Scottish Government, the new figures continue to show that there is no room for complacency and substantial improvements must yet take place in order to give survivors confidence that they will receive justice for this serious and damaging crime. The new figures also show that in 31% of cases indicted the accused was found or pled guilty.
While there have been some important and welcome changes over the past few years in the way rape is prosecuted in Scotland (for example with the setting up of the National Sexual Crimes Unit), it is worrying that so few cases get to court. The new figures released by the Crown Office show that over a third of rapes reported to the police never even make it as far as the Crown Office. It can take a lot of courage to report a crime like rape to the police, and it can be devastating to find out your case is not going to make it to court. There are grave concerns that this situation will worsen as a consequence of the recent Cadder judgement. Action must be taken to ensure that the prosecution rate for rape does not fall even further.
Efforts must also continue to ensure that data-gathering in this area is rigorous and robust so that clarity around improvements made and those still required can be guaranteed.
Rape Crisis Scotland continues to be contacted by women who feel very let down by the justice system, either because their case did not make it to court, or if it did, resulted in a not proven verdict. It is clear much remains to be done to ensure rape survivors have access to justice.
Published: 21st June 2011
Following the UK Supreme court’s Cadder ruling last year, the Justice Secretary Kenny MacAskill asked Lord Carloway to undertake a review to consider the implications of the ruling and make recommendations.
The Cadder ruling relates to an accused’s right to legal representation during police questioning, and has had a particular impact on sexual offences. Due to the difficulties in obtaining corroboration in sexual offences cases (because they often happen in private, with no witnesses) the police prior to Cadder were often reliant on admissions from the accused to help them build a case. Since the Cadder decision, defence lawyers seem to be routinely advising their clients to make no comment at all during police interviews, which is causing serious difficulties and has the potential to make prosecutions in rape cases even more difficult.
As well as considering questions relating to legal representation for the accused, Lord Carloway has also been considering broader issues relating to evidence, including the requirement for corroboration and whether or not juries should be able to draw an adverse inference if the accused remains silent and refuses to answer any questions. Rape Crisis Scotland has produced a briefing paper outlining our position on these questions raised by the Carloway Review and hope this will be helpful to other agencies planning to respond to the consultation. Click here to download the RCS briefing paper. The deadline for consultation responses is 3rd June 2011.
Published: 19th May 2011
New figures released by the Scottish Government show a significant increase in the proportion of rape cases which reach court leading to a conviction.
Out of 92 rapes prosecuted in 2009-10, there were 41 convictions. This compares with 26 convictions out of 85 rape prosecutions the previous year.
The recorded crime figures for the same year show that there were 884 rapes reported to the police. The proportion of reported rapes leading to a conviction was 4.6%, compared to 3% in 2008-09. The majority of reported rapes did not reach court – only approximately 10% of rapes were prosecuted. However, of the rapes prosecuted the conviction rate was 44.6%.
Rapes recorded by the police
Number of rapes prosecuted
Number of convictions
Recent years have seen significant changes in the way rape is investigated and prosecuted in Scotland. This has included the establishment of a dedicated National Sexual Crimes Unit to oversee the prosecution of sexual offences in Scotland. Rape Crisis Scotland is encouraged to see a quite significant increase in the number of rapes which get to court resulting in a conviction.
It remains, however, a matter of concern that so few rapes ever reach court. Rape is a crime which can take a lot of courage to report to the police, and finding out your case is not going to court can be devastating.
It is clear that much remains to be done, not least in changing attitudes to rape to try to minimize the impact that women blaming attitudes may have on jury deliberations. We hope that these new figures are indicative that as a nation we are moving in the right direction in improving access to justice following rape.
 The figures relating to rapes recorded by the police and court proceedings statistics are not directly comparable due to the police recording by offence and the court figures recording by accused (an accused might be responsible for more than one incident). However, these are the only figures available to measure the proportion of recorded rapes leading to a conviction.
Published: 11th February 2011
After several years in preparation, the most radical overhaul ever of the law on sexual offences in Scotland has now taken place. On 1st December 2010, the new Sexual Offences (Scotland) Act came into force, bringing with it a number of significant changes to the law on sexual offences in Scotland.
The definition of rape is now wider than was previously the case, reflecting a recognition within the law that men as well as women can be victims of rape. Consent is now defined in statute in Scotland for the very first time. Hopefully this will overcome problems caused by the subjective interpretations to which its previous location in common law inevitably left it open. Under the new law, consent is defined as “free agreement” and this is supported by a non-exhaustive list of circumstances which, if proved, will indicate that consent was not present. People with a limited or no capacity to consent (for example the very young, or those with a mental disorder) are also better protected within the terms of the new Act.
The new law legislates on a number of related offences. These include sexual coercion (forcing others to take part in sexual activities without their consent), voyeurism, sexual exposure, and sending indecent images by email or text. This Act also extends its jurisdiction beyond the UK in cases where offences against children are committed abroad. These can now be prosecuted In Scotland irrespective of where the offence was committed, or of laws which pertain in that country.
Rape Crisis Scotland welcomes the Sexual Offences (Scotland) Act and the commitment it demonstrates to improving the prospects of those who have been victims of sexual violence in obtaining justice. It is important that the spirit of the Act is implemented with a rigour that matches this commitment, and that other measures which can support and facilitate these changes, such as effecting changes in public attitudes, will also remain very much in focus.
You can download an Outline Guide to the Sexual Offences (Scotland) Act 2009 here.
Published: 2nd December 2010
Following a landmark decision by the UK Supreme Court, the
Scottish Government introduced emergency legislation which means
that police can no longer question suspects without a
lawyer present. Peter Cadder, who was convicted for assault based on
evidence obtained before he spoke to his lawyer, made an appeal based on
European human rights laws which was upheld. The new Scottish
introduces a right of access to legal advice before being questioned,
extends the period during which a person may be detained under section 14
of the Criminal Procedure (Scotland) Act 1995, powers to adjust legal
aid eligibility rules and measures to ensure certainty and finality in
concluded cases. The Supreme Court judgement does not permit closed
cases to be reopened and as such will not be retrospective.
Anyone with queries or concerns about the Cadder judgement or its implications for their cases can find out more detail on the Crown Office and Procurator Fiscal website at http://www.copfs.gov.uk/ or call the enquiry point number: 0844 561 3000. Anyone who may has moved or changed contact details should update the enquiry point or the PF office which dealt with the case with their new details. COPFS has details of all victims and witnesses. If the enquirer is able to supply a PF reference number, the name of an accused or even the PF office which dealt with the case, that will help to speed this process up.
Published: 27th October 2010