Figures released earlier this month showed that fewer than 10% of cases reach court. Parliamentary questions by the Lib Dems found that of 908 recorded complaints, only 88 resulted in charges before a judge.
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This is despite the appointment of special prosecutors, reviews by the Crown Office and new legislation introduced in 2003 which
attempted to curtail the introduction of irrelevant sexual history or character evidence.
The 2003 changes were introduced following the death of 16-year-old rape victim Lindsay Armstrong, from New Cumnock, East Ayrshire, who killed herself after being questioned in court about her character and what she was wearing.
An evaluation commissioned by the Scottish Government and published in 2007 found that, far from tightening the use of sexual history and character evidence, the legislation had somehow made things worse.
Almost three-quarters of trials still included applications to introduce sexual history and character evidence. Only 7% of such applications were opposed.
With concerns already high among campaigners about the deterrents to women and indeed men reporting what has happened to them, the research commissioned by Rape Crisis makes for particularly worrying reading.
While the forthcoming changes to disclosure were welcomed by defence agents and introduced with good intentions -- there are clearly concerns about how they might work in practice.
The changes recommended in the Coulsfield review [of the law and the practice of disclosure in Scottish criminal proceedings] followed a number of high-profile appeals which saw convictions overturned on the grounds that the Crown had failed to disclose certain information.
In 2006, for example, Stuart Gair was cleared of murdering a man in Glasgow after protesting his innocence for 17 years. Lord Abernethy, the judge, said a failure to disclose witness statements to his lawyers deprived the defence of a “powerful argument” on identification.
However, the growing use of historical medical records -- including those from early childhood -- and the lack of a robust definition as to what might be considered “material” is likely to deter far more women from coming forward.
The research by Professor Fiona Raitt, commissioned by Rape Crisis, raises a number of issues. It states: “There is also the question of the security of documents disclosed to the defence... There is no duty upon the Crown to prevent the occurrence of a breach by taking specific steps to ensure the security of the material. That is a distinct weakness in the draft legislation.
“The proposed bill’s provisions for disclosure of
personal records will present Scottish complainers with a new and forbidding deterrent to reporting rape. The absence of any reference in the Bill to arrangements for notifying complainers that their records are being disclosed, let alone provision to enable complainers to oppose requests for disclosure, is of major concern...
“The Crown ... cannot serve the public interest and adequately shield the complainer from disclosure applications. There are too many conflicts of interest involved. For example, if complainers are to be asked for permission to agree to recovery of their records, or to undergo a psychiatric or psychological examination pre-trial, they need full, clear, independent legal advice as to the possible consequences.”
Sandy Brindley of Rape Crisis Scotland has called for independent legal representation for victims. Such a change would represent a significant shift from the Crown’s usual position in representing victims.
Lord Advocate Elish Angiolini has made improving rape convictions a particularly high priority, and implemented some 50 improvements to the way such cases are tackled -- but the new legislation would seem to drive a wedge between victim and prosecutor.
Ms Brindley believes the growing use of women’s sexual and medical history is an abuse of the European Convention of Human Rights which states that “no-one shall be subjected to inhuman or degrading treatment”.
“We need to ask why these records are considered relevant,” she said. “What is it about the crime of rape that makes a women’s medical and sexual history fair game if she wants to try to seek justice for what has happened to her? Increasing use of medical records in rape trials has the potential to make an already highly traumatic and invasive experience even worse.
“Frequently the reason that women’s medical records are being sought in the course of a rape prosecution is to look for any history of mental health issues. We have seen cases where someone having had depression in the past prior to being raped is used by the defence in court in an attempt to discredit them.
“It raises significant issues in relation to disability discrimination, and access to justice following rape for people who have had any mental health problems.
“Complainers need to feel that there is someone in this process who is directly representing their interests.”