Scotland’s most senior law officer has moved to reassure victims of sexual abuse that they will be protected after a supreme court ruling warned that Scottish laws designed to limit intrusive cross-examination could be breaching men’s right to a fair trial.
In a strongly worded statement, the lord advocate, Dorothy Bain KC, said: “I would like to make clear that I understand sexual abuse inflicted upon women and children to be the single greatest challenge our justice system faces.
“It is unacceptable and victims should feel able to speak out without further fear,” she continued, before underlining: “The supreme court ruling does not alter the statutory protections for those giving evidence.”
Last Wednesday, the supreme court delivered its judgment in the case of two men appealing against rape convictions delivered in Scottish courts. Although both appeals were dismissed, the five judges ruled that Scotland’s courts needed to change their approach to the admission of evidence in such cases, warning its current process “is liable to result in violations of defendants’ rights to a fair trial under article 6 of the convention”.
The judgment centred on Scotland’s “rape shield” laws, brought in to protect complainers in sexual offence cases from humiliating questions about their sexual history or character.
But lawyers have voiced growing concerns that sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 in operation with the common law have resulted in a narrowing of admissible evidence, creating absurdities in the courtroom and leaving accused men unable to properly defend themselves.
But on Monday, Bain drew the focus back to victims, reassuring them: “These safeguards remain firmly in place to protect the dignity, privacy and wellbeing of victims … The supreme court emphasised that any intrusion into a complainer’s privacy must be no more than is necessary to ensure that the accused receives a fair trial.”
Her intervention comes amid warnings that the judgment would cause chaos in active prosecutions and result in a flood of appeals.
At a public debate organised by the Scottish Association for the Study of Offending immediately after the ruling, Thomas Ross KC, who has spoken out previously about the operation of rape shield laws, suggested that Holyrood should commission a human rights lawyer, such as the recently retired Lady Hale, to accept miscarriage of justice referrals.
“What is more likely to happen, however, is that those who have already had appeals rejected will be referred to the Scottish Criminal Cases Review Commission, the SCCRC will be flooded with new cases, the process will take five years and the Scottish government will hope everyone forgets about [it].”
Katrina Parkes, the legal director of Scotland’s crown office, insisted the ruling did not automatically render existing convictions unsafe. “Any appeals would be considered on a case-by-case basis through established review processes.”
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Sandy Brindley, the chief executive of Rape Crisis Scotland, said last week that the judgment could prove a “real step backwards”.
“The possibility of having your sexual history dragged up in court really could put women off reporting. I think there is a real worry about what does this mean for future cases and women’s confidence in the justice process in Scotland.”
The ruling comes after the Scottish parliament voted to abolish the verdict of “not proven” – a legal anomaly thought to be a key factor in the country’s significantly lower convictions rate for rape and sexual assault – as part of a raft of reforms designed to “put victims and witnesses at the heart of a modern and fair justice system”.
