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Legal Opinion: Scottish Government's response to the prosecution of serious sexual crime in times of Covid-19 ‘could be unlawful’

Rape Crisis Scotland has today released a legal opinion showing the Scottish Government’s response to the prosecution of serious sexual crime in times of Covid-19 ‘could be unlawful’.

The opinion – by both junior and senior counsel – points to the impact of court closures resulting from Covid-19 on survivors of serious sexual crime and draws conclusions that leave the Scottish Government open to legal challenge. The opinion finds an objective basis for serious sexual crimes being treated differently from other types of crime, particularly during the current pandemic, leading to calls for judge led trials (trials before a panel of judges with written reasons) for sexual crime to be put back on the table.

From the outset Rape Crisis Scotland raised significant concerns about the impact of the significant backlog caused by Covid-19 related court closures on the health and wellbeing of survivors of sexual crimes. This is supported by findings from recent research on rape survivors’ ‘Justice Journeys’ undertaken by Prof Michele Burman Dr Oona Brooks–Hay and Dr Lisa Bradley from the Scottish Centre for Crime and Justice Research (SCCJR) which evidences the significant and harmful toll that uncertainty and delays have had on the mental health of survivors.

In light of this legal opinion Rape Crisis Scotland has reiterated calls for the Scottish Government to legislate for judge led trials to be used in the short term to alleviate the untenable backlog. Not doing so – they say – would be ignoring the rights of victims and that would be unacceptable.

Summary of conclusions:

(1) The Government has a positive obligation under Articles 3 and 8 ECHR to protect people from violence and interferences with their physical and moral integrity. The Government’s failure adequately to address the delay in the prosecution of serious sexual crime resulting from COVID-19 may amount to a failure to fulfil its positive obligations under Articles 3, 8 and 13.

(2) The vast majority of gender-based violence is directed against women. Violence against women is a form of discrimination. The delay in the prosecution of serious sexual crime resulting from COVID-19 will have a disproportionate impact on victims of serious sexual crime. The Government’s failure adequately to address the delay may amount to indirect discrimination under Article 14 ECHR.

(3) In terms of Article 18 of the Victims Directive the Government has an obligation to protect victims of crime from secondary and repeat victimisation. The delay in the prosecution of serious sexual crime resulting from COVID-19 increases the likelihood of secondary and repeat victimisation. The Government’s failure adequately to address the delay may amount to a breach of the Victims Directive.

(4) In terms of section 149 of the 2010 Act the Government is subject to the public sector equality duty. The Government was initially in favour of judge-only trials. As introduced, the Coronavirus (Scotland) Bill contained provision for judge-only trials. In removing that provision and subsequently reversing its policy on judge-only trials without having due regard to the need to eliminate discrimination (i.e. the disproportionate impact of the delay on victims of serious sexual crime) and advance equality of the sexes, the Government may have breached the public sector equality duty. The decision to remove judge-only trials as an option would be amenable to judicial review. As the duty under the 2010 Act is a continuing one, the Government remains under an obligation to review and reconsider the likely impact of delay on victims of gender-based violence.

(5) Sexual crime is different from other forms of crime. There is an objective basis for treating it differently from other types of crime, particularly during the current pandemic. We understand that RCS favours the introduction – even if it is only temporary – of trials before a judge sitting alone (or before a panel of judges) in cases of serious sexual crime.

Sandy Brindley, Chief Executive of Rape Crisis Scotland said:

“For lots of survivors across Scotland this is a situation that feels like it’s at breaking point. The issue of delays isn’t a new one, it existed before Covid-19, but the impact of court closures means that taking a gentle, cautious approach and tinkering at the edges is not an option. We are talking about asking victim-survivors of rape and sexual abuse to put their lives on hold for years for a slim hope of justice – that’s not a fair or reasonable thing to ask of anyone.

“We need bold leadership and action from a Government in line with their commitment to ending gender-based violence and upholding human rights. It should not take a legal challenge for the government to recognise the harm being caused to people who have reported rape serious sexual assault by the current situation.”

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Notes to Editors:

The summary of the legal opinion can be found here.

The SCCJJR research referenced can be found here.

For further comment, queries or interviews please email sandy.brindley@rapecrisisscotland.org.uk

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