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A letter to the Crown Office and Procurator Fiscal Service

We write to express our significant concern with respect to your letter dated 8th of March outlining the shift in approach of the Crown Office in dealing with reluctant complainers in rape cases, effective from today, and ask that you urgently reconsider this change to policy.

We share the knowledge that rape is an awful crime that can leave a lasting and profound impact on those who experience this violence. It is no secret that the concept of justice is one that is frequently far removed from the reality of survivors of sexual violence in Scotland today. I know you are also aware of the many barriers that stand in the way for those who pursue justice and even though considerable work has been done to address and remove these obstacles there remains a stubborn gap between those who experience sexual violence and their ability to access justice and we are clear that there is much more to do.

We consider the approach outlined in your aforementioned letter that will compel rape complainers to give evidence or risk a warrant being issued for her arrest to be a step backwards, and one that could have significant, lasting negative implications. We are not aware that any Equality Impact Assessment has been undertaken which means many of the potential impacts are unknown, however we have outlined our concerns below.

One of the main factors in complainer withdrawal in rape cases is the criminal justice process itself. In general, rape complainers report what has happened to them to the police with every intention of continuing through the criminal justice process. It is the process itself which can lead them to the point of feeling like they cannot cope with it anymore. This particularly relates to the lengthy delays in cases coming to court, the frequent changes in court dates, the changes in location of where the case will be heard and a lack of meaningful communication about what is happening. It seems to us perverse that someone who has been through an extremely traumatic experience and demonstrates the courage and resilience to report this experience to the police is then faced with the prospect of having a warrant issued for her arrest because she has been treated so badly by the very system that is supposed to protect her.

We are concerned that this policy violates the human rights of rape survivors. Rape complainers have described the court process as being ‘worse than being raped’. Their perception is that the Crown does not intervene to protect their rights during cross examination. We consider that compelling a rape complainer to undergo the experience of giving evidence and being cross examined in a rape case, against their wishes and where there is no intimidation or other outside factors involved in preventing them from giving evidence, is in contravention of both Article 3 (freedom from inhuman or degrading treatment) and Article 8 (respect for private family life) of the rights contented in the Human Rights Act. It is inconceivable to us that, having been through so much, the justice process would knowingly cause further harm to rape survivors.

This policy will mean that more rape complainers will falsely retract their statements. We are seriously concerned that this change to policy will lead more people to say that they made up their report. As you are aware rape complainers being charged - or being threatened with being charged - following a report of rape is a longstanding concern of ours. What can happen is that a rape complainer wishes to withdraw from the justice process – at times because they feel they haven’t been believed, or because they decide they can’t face going through with it – and thinks that the only way they can do this is to say they made it up or that they consented. At the moment, we can reassure complainers that they do not need to say they made it up because the Crown will not prosecute if they are absolutely sure they don’t want or feel able to proceed. This reassurance is critical and under this new policy it will no longer be possible.

This will not gain best evidence from rape complainers and risks re-traumatising victims. There are multiple difficulties in obtaining best evidence from rape complainers in a justice system that can often be hostile to victim-survivors of violence, compelling them to give evidence will only make this worse. The threat of a warrant being out for her arrest will only cause significantly more anxiety and distress. Rape complainers frequently tell us that they feel no one is on their side during a rape trial. How much more acute would this feeling be in these circumstances?

We consider that the prior approach of the Crown to this issue was sufficiently nuanced to respond to the complex reasons why a rape complainer may withdraw. In our experience, a rape complainer’s desire to withdraw was never simply accepted or taken at face value. You would always take steps to ensure that someone wasn’t being intimated into not giving evidence, or that their desire to withdraw was being caused by lack of support, which could be addressed by ensuring more support was put in place. Our advocacy workers spent a lot of time supporting rape complainers to stay engaged with the justice process. We consider that far more could be done to address the reasons why complainers are considering withdrawing.

We share the Crown’s concern about ensuring that rapists are prosecuted and prevented from causing further harm. We do not consider, however, that this is the right approach to achieve this. It would be far more effective – and less harmful to rape survivors – to address the reasons why rape complainers wish to withdraw. These reasons are well documented, for example in the recent Inspectorate of Prosecution’s review, but we have yet to see any concerted, coordinated efforts by justice agencies to address them.

Confidence of survivors of sexual violence in the justice system is notoriously low; don’t make it worse.

Yours sincerely,

Sandy Brindley, Chief Executive of Rape Crisis Scotland

View the letter from the Crown here.