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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.”

## ENDS ##

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

Rape Crisis Scotland calls for radical changes to sexual offence trials

In an extraordinary judgment today, Lord Carloway, the Lord Justice General, Scotland’s most senior judge has vehemently condemned the manner in which all of the lawyers, prosecution, defence and presiding Judge, treated a victim of serious sexual crime during the trial of her assailant, Gavin MacDonald, who was thirty years her senior. The judge explained that if the circumstances of this case were to be repeated the, “situation in sexual offences trials would be unsustainable”.

Sitting with Lord Pentland and Lord Turnbull, Lord Carloway refused Mr MacDonald’s appeal and delivered the opinion of the court in which he strongly criticised the way the young woman was treated, stating that her cross examination was insulting, irrelevant, repetitive and distressing. In an excoriating judgment he stated the,

“trial was conducted in a manner which flew in the face of basic rules of evidence and procedure, not only the rape shield provisions but also the common law. It ignored a number of principles which have been laid down and emphasised in several recent decisions of this court. If justice is to prevail in the prosecution of sexual offences, it is imperative that those representing parties abide by these basic rules.”

On Covid 19 and Courts - A Statement From Sandy Brindley

Rape Crisis Scotland welcomes the advances that are now being made to try and resume the business of the Scottish Courts, and in particular the steps now being taken to try to resume jury trials in Scotland. In this connection Rape Crisis welcomes the fact that the Justice Committee of the Scottish Parliament is to begin to hear evidence on this matter on 19 May 2020, and that Lord Justice Clerk’s Jury Trial Working Group had its first meeting on 14 May 2020.

As Chief Executive of Rape Crisis Scotland, I wish to make a statement on the issue of the resumption of jury trials from the perspective of those who have experienced sexual crime.

Taking part in criminal proceedings brought against one’s rapist or sexual offender is profoundly challenging for every victim. It is traumatic to be forced to relive the painful experiences from the past and to open them to more or less public scrutiny. It is recognised by all of those professionals who deal with these cases that proceedings should be concluded as soon as the administration of justice allows. The prerequisite of promptness of the proceedings is therefore an aspect of victim protection - ever more so in cases of heightened vulnerability of survivors of rape or domestic abuse.

It is in this context that I wish to express certain concerns about the resumption of jury trials. As a starting point, it is essential that the decision to proceed with the resumption of jury trials would have to be made on the basis that an effective jury system can be put in place which;-

(a) is likely to avoid the risk of cases collapsing and complainers of sexual violence requiring to give evidence again and,

(b) will function at an effective level.

In relation to (a) - the risk of a case collapsing. I suggest that before approval is given to any new way of jury trials operating, there requires to be a body of evidence available that permits a conclusion to be reached on the level of risk of trial collapse. I suggest that the risk must be capable of being categorised as minimal in the prevailing circumstances of Covid 19. There are many factors that are relevant to this consideration, however, the most obvious would seem to be the potential impact on individual jury members of the concern that they may have about spending time in the company of others who may be infected with the virus, or who may be associating with others who are infected, where it is recognised that those carrying the virus may be symptom free. The more difficult it is to get jurors to attend, or to ensure that they continue to attend without becoming contagious, the more the risk of the case collapsing increases. If one juror is tested positive or acquires symptoms it is likely that all who have been in contact with that juror will have to isolate. This may well mean that any time a juror tests positive the whole case is abandoned. The more people involved with the process the greater this risk becomes.

In relation to (b) - the level of functionality is also a critical consideration. I say this because of the impact that delay in cases proceeding and concluding has on complainers of sexual crime. From my experience at Rape Crisis Scotland I understand this has an intolerable impact - particularly on complainers of serious sexual crime - who are by their nature amongst the most vulnerable category of witnesses who come before the courts. I am sure this is well understood by all professionals who take part in these proceedings and I am supported in this by many scholarly articles and expert opinion on this subject. Any jury system proposed and approved of has to deliver a meaningful result in the sense that it is more than a token gesture and capable of providing a reasonable number of trials over a reasonable period of time.

If in fact there is no practical way of recommencing jury trials capable of functioning at meaningful and effective level, then it is only reasonable to suggest that some change has to be made to the way in which cases, particularly cases involving serious sexual offences, are conducted. The option of doing nothing is unacceptable and I therefore implore those involved in this process to consider other options alongside the current process that the Scottish Parliament and the Lord Justice Clerk’s working group are concerned with. The UK signed the Istanbul Convention in 2012 to signal the UK’s strong commitment to tackling violence against women and girls, and under Article 49 signatories to the Convention require to take the necessary legislative or other measures to ensure that judicial proceedings in relation to all forms of violence covered by the scope of the Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings. Further, Scotland has a positive procedural obligation inherent in Articles 3, & 8 in association with Article 13 of the ECHR to enact criminal law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution. The prerequisite of promptness of the proceedings is an aspect of victim protection and therefore, where no or an inadequate number of jury trials dealing with serious sexual offences are capable of proceeding on indictment, then I do suggest that the Scottish Government are obliged to consider a different way of proceeding consistent with their legal obligations.

In this context I also raise the the time requirements of the Convention on the Rights of the Child 1989 (United Nations) and the Beijing Rules. Lord Reed in the case HMA v P & SM 2001 SLT 924 explained the consequences of prosecutorial delay and the particular impact this has on cases involving children. This must be seen to have a broader application to all child complainers and witnesses. Indeed, what he said at paragraph 12 of his judgment is of critical importance.
“[12] Where a child of 13 is accused of committing a serious offence, it is plainly desirable that the child should be brought to trial (if criminal proceedings are considered appropriate) as quickly as is consistent with the proper preparation and consideration of the case. For a period of two years to elapse between the child's being charged with the offence and the child's being placed on trial has a number of undesirable consequences. Without attempting to list them exhaustively, the following may be mentioned. A child of 13 may be very different from the same child when he or she is 15 years old, both in terms of physical development and in terms of maturity and understanding. If the trial is to be held before a jury, as in the present case, the jury may have a very different impression if a 15 year old boy is in the dock, from the impression which they would have had if they had seen the same individual when he was 13. It may be much more difficult to assess the state of a child's understanding, when he was 13, of sexual matters and sexual relationships, if the child is not placed on trial, and is not able to give evidence, until he is two years older. For the child himself (or herself), a period of two years awaiting trial will form a significant part of childhood, and more particularly of the period of secondary schooling, which cannot be compared with the significance of a two year period to an adult. If the 13 year old child is in fact guilty of an offence and requires the sort of reformative measures which disposals in respect of child offenders are intended to include, then again it is undesirable that the initiation of such measures should be delayed by a period of years. Reverting to the aims of the “reasonable time” requirement, for a period of two years to elapse before justice is rendered in a case involving a child of 13 is for these reasons liable to jeopardise its effectiveness and credibility; and for the child to remain for that period in a state of uncertainty about his fate may have especially harmful consequences. I have mentioned matters which relate to the child accused, because such matters are particularly relevant in the context of art 6 (1); it is scarcely necessary to add that prolonged delay in bringing a case to trial may also have seriously harmful effects upon a child complainer, especially (as in the present case) in a case of alleged rape.”

It is in this context that I note that within the submissions available online from both the Faculty of Advocates and the Law Society there has been no real analysis done and no valid or reasoned criticism advanced as to why a Judge sitting alone, or a panel of three Judges could not conduct cases of serious sexual crime prosecuted on indictment. Indeed, one of the most serious, complex, high profile and difficult solemn trials ever prosecuted under Scottish jurisdiction was conducted without a jury under the scrutiny of the lawyers and the international media, and no valid or reasoned criticism of the ability of the judges to perform the functions of assessment and analysis of evidence was raised. Further, no criticism has ever been advanced institutionally of the work that Judges in the Court of Session have undertaken for centuries when they have adjudicated upon cases which involve all of the traditional assessments expected of jurors or of sheriffs who undertake summary work and regularly impose periods of imprisonment and take decisions based upon the credibility and reliability of witnesses.

I also note that no consideration has been given to the possibility of serious sexual crime cases being considered in a separate category and, that whilst jury trials may be able to proceed for other cases, sexual offence cases should be dealt with either by a single Judge or a three Judge panel reducing the particularly acute risks associated with the case collapsing and the profound trauma this would undoubtedly bring to the victims of serious sexual crime.

I therefore propose that in tandem to the work the Justice Committee and the Lord Justice Clerk’s working group are undertaking in relation to considering the practicalities of recommencing trials by jury when lockdown restrictions are relaxed, consideration is also given to the way in which the prosecution of serious sexual crime can be accommodated within our system of justice that respects both the accused’s and victim’s rights during this global pandemic. Not to do so runs the real risk of the serious and important issues I responsibly raise are not properly addressed.

I would also wish to make one other short point. The issue of reduced jury sizes is a matter that is of some concern to Rape Crisis. There is a real quality of justice argument and possible ECHR issues. In this context, bearing in mind the case law and psychological analysis that comes from America where the Supreme Court has refused to authorise the use of a 5 person jury it is an area that requires detailed and careful legal analysis. I understand this is one of the options proposed by the Scottish Government ( a jury of 7 with a majority of 5) and to some extent supported by the Law Society ( only in the Sheriff Court where they suggest 5 jurors) and the Faculty of Advocates.

RCS urges MSPs to support Coronavirus (Scotland) Bill provisions

Briefing Coronavirus (Scotland) Bill | Rape Crisis Scotland

The prospect of giving evidence in a rape or sexual offence trial can be extremely daunting. Delays in cases coming to court can have a very detrimental impact for people reporting sexual crimes. Even before the current pandemic, Rape Crisis Scotland had serious concerns about delays in rape and attempted rape cases getting to court, with many people having to wait up to two years for their case to get to court. Lengthy delays, coupled with uncertainty about when they are going to be giving evidence, adds significantly to the trauma caused by the justice process. It also impacts on their ability to give their best evidence. We are gravely concerned about the impact on people reporting sexual offence cases of the current arrangements where no new jury trials are being held. Although we recognise the action taken by the court service was necessary, we are very concerned about the knock-on effect of such delays on the capacity of the courts which is likely to have long term consequences for all survivors seeking justice.

We are supporting a number of survivors through Rape Crisis Scotland’s National Advocacy Project who were due to have jury trials at the High Court within the next few months; we are concerned about the impact of these trials being delayed for an unspecified time period. This uncertainly is causing a great deal of distress for survivors who felt the end of the process was in sight.

Survivors often describe feeling stuck by the Criminal Justice Process and unable to move on with their lives and we worry about the impact of these delays on the mental health of the survivors affected. We know of a number of cases which have already had to be adjourned on a couple of occasions now being adjourned for a third or fourth time. These survivors could face a delay of a further 9 + months to a conclusion of the justice process. If nothing is done, there will be a huge backlog of cases when the courts do reopen to jury trials. The Lord Justice General estimates a backlog of over 1000 cases if the current restrictions are lifted by the start of the summer, a timescale which is by no means guaranteed. We are seriously concerned about what this will mean for people reporting rape and sexual offences.

We would urge members to vote in favour of the provisions in the emergency legislation permitting the use of judge led trials to allow for the most serious cases to proceed during this period.

Guide to the criminal justice system for survivors of sexual violence: updated

Rape Crisis Scotland have today (Wednesday 10th July 2019) launched an updated video guide to the criminal Survivor facing oncoming wave justice system for survivors of sexual violence, featuring key people that survivors will come into contact with during the justice process.

This includes a specially trained police officer, a rape crisis advocacy worker, a Procurator Fiscal, a defence lawyer, an advocate for the prosecution and a judge.

Funded by the Scottish Government, the video is an accessible and comprehensive guide to a system that many survivors describe as complex and disorientating. It sets out clearly each stage of the process, who is involved and what their role is. It is hoped that – in addition to ongoing work to improve the justice system for survivors of sexual violence – the video will increase access to justice for crimes that are widely underreported.