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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.”

It is of deep concern to Rape Crisis to read about this young woman’s experience in court. Tragically it is all too familiar. Many women who experience sexual violence and attend court, to speak out against their attacker in the hope that they will secure justice, often report that they have felt humiliated and traumatised by the process. They have a strong sense that when they are at their most vulnerable, there is no one to support them or protect their interests. Regularly women tell us of how profoundly demeaned they felt by what happened in court.

This case also highlights - yet again - the manner in which the “rape shield” legislation is applied in practice. Despite legislation setting out the strict procedures that must be followed if the defence wish to introduce sexual history or character evidence of the victim of sexual crime, none of these procedures were followed in this case. During the evidence at the trial there was no objection to the defence cross examination by the Crown or any form of control by the presiding judge. As Lord Carloway explained the consequence was the victim was exposed to unlawful and distressing questioning which left her extremely upset.

In order to protect survivors of sexual violence, Rape Crisis Scotland has repeatedly called for:

• Complainers in sexual offence cases to have access to their own legal representation whenever any application is made in court to introduce their sexual history and character in evidence.

• The introduction of specialist training for any judge or sheriff presiding over sexual offence cases.

• Mandatory training for any legal representatives involved in sexual offence cases in the questioning of vulnerable complainers.

This case demonstrates just how necessary these changes are.

Rape Crisis takes support from what Scotland’s most senior judge has said in this case and the legal requirements placed on the Courts, Crown Office and Procurator Fiscal Service and legal profession by the Victims Directive 2012 and the Victims and Witnesses Scotland Act 2014. It is the view of Rape Crisis Scotland that reading the Directive and the Act, and the responsibilities they provide for exposes a number of very serious failings in this case that should concern everyone, and particularly those professionals involved in the prosecution and defence of serious sexual crime in this country.

The full judgment can be found here

COPY VICTIMS DIRECTIVE ARTICLES 18 & 25

Article 18

Right to protection

Without prejudice to the rights of the defence, Member States shall ensure that measures are available to protect victims and their family members from secondary and repeat victimisation, from intimidation and from retaliation, including against the risk of emotional or psychological harm, and to protect the dignity of victims during questioning and when testifying. When necessary, such measures shall also include procedures established under national law for the physical protection of victims and their family members.

Article 25

Training of practitioners

1. Member States shall ensure that officials likely to come into contact with victims, such as police officers and court staff, receive both general and specialist training to a level appropriate to their contact with victims to increase their awareness of the needs of victims and to enable them to deal with victims in an impartial, respectful and professional manner.

2. Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States shall request that those responsible for the training of judges and prosecutors involved in criminal proceedings make available both general and specialist training to increase the awareness of judges and prosecutors of the needs of victims.

3. With due respect for the independence of the legal profession, Member States shall recommend that those responsible for the training of lawyers make available both general and specialist training to increase the awareness of lawyers of the needs of victims.

4. Through their public services or by funding victim support organisations, Member States shall encourage initiatives enabling those providing victim support and restorative justice services to receive adequate training to a level appropriate to their contact with victims and observe professional standards to ensure such services are provided in an impartial, respectful and professional manner.

5. In accordance with the duties involved, and the nature and level of contact the practitioner has with victims, training shall aim to enable the practitioner to recognise victims and to treat them in a respectful, professional and non-discriminatory manner.

VICTIMS & WITNESSES ACT 2014

General principles

(1)Each person mentioned in subsection (2) must have regard to the principles mentioned in subsection (3) in carrying out functions conferred on the person by or under any enactment in so far as those functions relate to a person who is or appears to be a victim or witness in relation to a criminal investigation or criminal proceedings.

(2)The persons are—

(a)the Lord Advocate,

(b)the Scottish Ministers,

(c)the chief constable of the Police Service of Scotland,

(d)the Scottish Court Service,

(e)the Parole Board for Scotland.

(3)The principles are—

(a)that a victim or witness should be able to obtain information about what is happening in the investigation or proceedings,

(b)that the safety of a victim or witness should be ensured during and after the investigation and proceedings,

(c)that a victim or witness should have access to appropriate support during and after the investigation and proceedings,

(d)that, in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings.

Tags: justice
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