Rape Crisis Scotland

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.  The deadline for consultation responses is 3^rd June 2011.

The prosecutor’s duty of disclosure of evidence to the defence in criminal prosecutions is one of the cornerstones of adversarial procedural justice and a long-standing principle in Scots law. It is a fundamental component of a fair trial, in particular the principle of equality of arms whereby the greater resources of the state to investigate crime entitle the accused to have access to the same evidential material that is available to the Crown. This is so even if the Crown has no intention of relying upon that material as evidence. The defence has a right to examine all information uncovered in the course of a criminal investigation that might exculpate or mitigate any criminal liability of the accused, or undermine the Crown case.

The Scottish Parliament recently enacted the Criminal Justice and Licensing (Scotland) Act 2010 which clarified and re-drew the boundaries of disclosure in Scots law. The Act contains detailed measures for extending the duty of disclosure together with the provisions for judicial regulation of non-disclosure in limited circumstances. This article focuses on a hitherto neglected aspect of disclosure, namely the impact on witnesses and complainers. The article argues that the Act will impact negatively on all witnesses but raise particular concerns for complainers in cases of rape and other serious sexual assaults. In such cases it is predictable that there will be an increase in the disclosure of medical and other personal records of complainers for any potential they have to cast doubt on the credibility and reliability of complainers. For the  purposes of disclosure, sensitive personal information such as mental health history could very possibly be characterised as material and relevant information. The problem with this lies less in the principle of disclosure of these records, and more in the ways in which the privacy interests of complainers could be heavily compromised in circumstances where they will have no access to independent legal advice.

The article explores the experiences in other jurisdictions where the disclosure of personal records has created an additional obstacle for complainants and a further disincentive to reporting rape. Clear parallels can be drawn with the use of sexual history evidence in rape trials which, despite efforts to regulate its admissibility, continues to be deeply problematic.

The extended ambit of disclosure set out in the Act has direct implications for the privacy rights of complainers and it is argued that the Act provides insufficiently robust safeguards for the protection of these individual interests. Given the complex environment in which disclosure obligations in adversarial proceedings must be satisfied, the article argues that on this issue Crown prosecutors cannot adequately discharge their traditional responsibilities to take the interests of complainers into consideration as part of the public interest. The article concludes that complainers should therefore have an entitlement to independent legal representation to pursue their legitimate privacy interests in non-disclosure. Although the article centres on the reforms in Scots law, the issues have broader application in all common law jurisdictions.

Drawing on recent research conducted in Scottish criminal courts, this article discusses the evidencing of sexual crimes through victim testimony. Despite significant reforms, complainers in sexual offence trials still find the process traumatic; the amount of sexual evidence introduced into the trial has increased; and the nature of such evidence draws on pervasive and outmoded rape myths.

Recent Home Office research indicates that complainants in sexual offence cases still struggle to gain credibility in the eyes of police, prosecutors and jurors. This article examines some of the credibility barriers confronting victims of sexual offences within the criminal process. In the USA, prosecutors
have utilised expert witness testimony in an effort to educate jurors and restore credibility to complainants’ accounts. This article critically assesses these developments and explores the potential admissibility of ‘educational’ expert witness testimony in criminal courts in England and Wales.

Outline Guide to the Sexual Offences (Scotland) Act 2009

Examines concerns around the way in which disclosure of personal records is used in sexual offence trials and in particular the impact of the Criminal Justice (Scotland) Act 2010 on this issue.

Takes account of the latest version of the Crown Disclosure Manual.

RCS commissioned this research against a backdrop where there have been long standing concerns about the response of the Scottish legal system to complainers of sexual offences. Women in contact with rape crisis centres do not speak highly of their experience of the justice process. Particular difficulties arise in relation to their status as a witness of the crime perpetrated against them, and the role of the Crown Office in acting in the public interest: women consistently tell rape crisis that they feel throughout the process that there is no one representing their interests.

This report considers the features of Scottish criminal procedure and evidence that exacerbate the problems currently facing complainers and that shape the response the criminal justice system can currently make. It explores how independent legal representation operates in other jurisdictions and considers the feasibility of its introduction in Scotland.

Examines a range of preconceptions held by jurors as to the demeanour and behaviour of rape complainers, and the impact that educating jurors around these issues can have.

An overview of the impact and use of sexual history and character evidence in sexual offence trials, and of the effectiveness of legislation currently in place which was intended to limit this.

Rape, sexual assault & the law in Scotland; Vulnerable Witnesses Act; Interview with Gerry Maher, Scottish Law Commission; VIA; Crown Office Review; SARC

Rape law reform; Solicitor General on rape; Feasibility study on National Helpline; Judith Herman seminar report

Funding for Rape Crisis Scotland; Legal updates; Working with refugees & asylum seekers; Review: Lilya 4ever; Problems with Rape Trauma Syndrome in criminal trials