Will you commit?
Scottish political parties have, in general, a strong track record in committing to tacking violence against women. The forthcoming Scottish Parliament election provides an opportunity for political parties and individual prospective MSPs to commit to take forward this work, to make Scotland a safer and more equal country. Central to this is the provision of effective justice responses, to offer redress where someone has experienced a crime such as rape, and to provide an effective deterrent to those considering committing such crimes.
Criminal justice responses to sexual offences have been the focus of considerable attention in recent years, with significant progress being made in improving responses, particularly in relation to the policing of rape. It remains the case, however, that the majority of rapes reported to the police never make it as far as court. In 2014/15, 1,901 rapes and attempted rapes were reported to the police, but there were only 270 prosecutions, and 125 convictions. The requirement in Scots law for corroboration continues to be a significant barrier to rape cases being taken to court.
Of the cases which do make it to court, survivors do not speak highly of their experience of giving evidence and being cross examined. Survivors continue to tell organisations like Rape Crisis how traumatic the process was for them, particularly in relation to cross examination. Survivors also speak of how distressing they find it having private issues from their past being brought up in court, with continuing issues around complainers’ medical records being accessed as part of a sexual offence prosecution. In a recent judgement in a judicial review* , Lord Glennie recognised that access to medical or other sensitive records as part of a prosecution represented a significant infringement on a complainers’ article 8 rights to privacy. The judgement set out that:
• A complainer has a right to be told when the person she has accused of assault makes application for her records.
• In that event, she now has a right to be heard on that application
• That will entitle complainers to apply for legal aid now to be represented at any hearing on the opposed application.
Only 46.3% of rape and attempted rape cases which go to court lead to conviction; significantly lower than other crimes. A much higher proportion of rape trials result in a not proven verdict than any other crime – in 2014/15, 19% of rape trials led to a not proven verdict.
In a judgement in 2015 on an appeal against a conviction for rape and other sexual offences, Lord Carloway raised a number of concerns about how complainers are treated in court:
“Whilst not wishing to be over critical of the advocate depute or defence counsel for the manner in which this case was conducted, given the latitude which seems still to be afforded in practice in cases of this type, it has to be said that both the manner and length of examination and cross-examination give cause for concern in relation to the treatment of a vulnerable, or indeed any, witness testifying in the criminal courts. The examination lasted for many hours and must have been what can only be described as a substantial ordeal for the complainer. From the outset of cross-examination, she was subjected not just to in depth questioning testing the veracity of her testimony, but to direct insults of her general character as, for example, being a “wicked, deceitful, malicious, vindictive liar”. The cross-examination itself then lasted for hours. It was conducted in a manner apparently calculated to break the will of the witness, which at times it undoubtedly did.”**
The Scottish Courts and Tribunal Service are undertaking a review of evidence and procedure which is examining how the Scottish criminal justice system can better protect children and vulnerable witnesses and ensure their evidence is taken in the most appropriate way in advance of the trial. The proposals in this review*** could go some way to address the concerns about the experience of complainers giving evidence, particularly their experience of being cross examined.
Improvements are also required in how we treat survivors of rape in the immediate aftermath of the crime. Despite significant research showing that women have a clear preference to be examined by a female doctor, the vast majority of forensic examinations in Scotland are carried out by male doctors. Police Scotland estimate that 50% of examinations are carried out in police stations rather than in a more appropriate, clinical setting. In 2013, minimum standards for the provisions of examinations following a sexual offence were approved by the Cabinet Secretaries for Justice and Health, but these standards have not yet been implemented.
Rape Crisis Scotland considers that the following actions are required to improve access to justice for people in Scotland who have experienced sexual crime:
• Implement the recommendations of the evidence and procedure review to improve people’s experience of giving evidence and enable them to give best evidence
• Remove the requirement for corroboration
• Remove the Not Proven verdict
• Introduce a non means tested system of independent legal advice and representation for complainers where their privacy rights are at stake, i.e. where their medical or other sensitive records are being sought or where attempts are being made to introduce their sexual history or character
• Implement the national guidelines for the provision of forensic examinations following a sexual offence
*OPINION OF LORD GLENNIE In the cause WF, Petitioner; for judicial review of a decision of the Scottish Ministers to refuse to make a determination for legal aid under section 4(2)(c) of the Legal Aid (Scotland) Act 1986
**OPINION OF LORD CARLOWAY, the Lord Justice Clerk, in appeal against conviction by Duncan William Begg or Dreghorn, 2015