Investigation and Prosecution of Sexual Offences

– in the Scottish Parliament at 2:03 pm on 14th June 2006.

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Photo of George Reid George Reid None 2:03 pm, 14th June 2006

The next item of business is a statement by Elish Angiolini on the Crown Office and Procurator Fiscal Service review of rape and sexual offences. The Solicitor General for Scotland has agreed to take questions at the end of her statement; therefore, there should be no interventions.

The Solicitor General for Scotland (Mrs Elish Angiolini):

Members are aware that, in October 2004, I instructed a comprehensive review by the Crown Office and Procurator Fiscal Service of the investigation and prosecution of rape and serious sexual offences. The report of the review was recently submitted to the Lord Advocate, who has now considered it and its 50 recommendations, which he has accepted in full. The full report is published today.

Rape is one of the most vile crimes that can be committed and is, accordingly, treated with the same degree of seriousness in the Scottish criminal justice system as murder is. The damage caused to individual victims, their families and wider society is enormous, and there is a responsibility on us all to respond to offences of sexual violence with determination and with sensitivity to victims.

The report of the review explains the reality of allegations of rape in Scotland and details the almost unique difficulties that are attached to the proof of such cases. It sets out a clear way forward on how we can best address any weaknesses in the process that might arise from the investigation and prosecution of such cases. I exhort those with an interest in these issues to read the entire report, which I believe provides the single most comprehensive and frank study ever in Scotland of the complex and difficult issues involved.

It is important to recognise that the policy and practices of the prosecution service cannot tackle all the diverse issues that affect the conviction rate in isolation. While the recommendations of the report signal a profound change in our approach to these cases, the report also explores the influence of such factors as the legal framework and evidential requirements that operate in Scotland; society's level of understanding of the true nature of rape; and misplaced perceptions about how victims of these crimes ought to present and react. All those factors have a part to play in the attrition rate of these cases.

The report and its recommendations contain no glossy gimmicks. On the contrary, this is a report and series of recommendations that are practical and pragmatic and which are intended to effect real change and improvement in the Scottish context. It addresses the issues that we see as presenting barriers to effective, fair and sensitive investigation and prosecution.

The review has also provided the prosecution service in Scotland with an unprecedented opportunity to appraise critically its approach to this difficult area of crime in consultation with victims, witnesses, those supporting the survivors of rape and other sexual offences, the COPFS staff who investigate these cases, those who prosecute them in court and key professional colleagues from across the criminal justice system, including our defence colleagues. The members of our advisory group gave freely of their time and shared their experience and expertise. That has greatly informed the review and we are indebted to them.

Crucially, the review has been outward looking and has examined the challenges facing our prosecution colleagues in other jurisdictions in responding to this area of crime. It is evident that the same issues that prompted this review also pose considerable challenges to prosecutors elsewhere in the world.

While it is asserted extensively and repeatedly that Scotland has one of the worst conviction rates for rape, the reality is that we have the narrowest definition of rape of any of the jurisdictions that we examined. It is so strictly defined that it excludes a vast raft of sexual offences that are included in definitions of rape elsewhere in the world. We noted in the review that, in jurisdictions where the ambit of the definition of rape was wide, there was, unsurprisingly, often a higher conviction rate.

The review also considered the way in which different legal systems and cultures have responded to the difficulties that we all face. We examined the key benefits that those responses offer and considered their application in the Scottish context. I am very grateful to our prosecution colleagues across the world, the International Association of Prosecutors, Eurojust and the American Prosecutors Research Institute for their considerable assistance in our work.

Latterly, victim organisations represented on the advisory group assisted the review team in convening meetings with victims of rape and sexual offences who were prepared to discuss their first-hand experiences. I cannot overstate how significant and informative the insight they provided has been to the review process. It has directly influenced the recommendations of the review.

The report makes 50 detailed recommendations that can be broadly grouped. It recommends that the development of comprehensive training and guidance for prosecutors and the introduction of a process of certification be achieved before staff are permitted to work in this difficult and sensitive area. I will say a little more about that later.

A range of revisals to prosecution practice and policy are recommended, including a presumption in favour of prosecution where there is sufficient credible and reliable evidence to prosecute. Only where there are insurmountable weaknesses in the case that mean that there is no reasonable prospect of conviction should a decision be made to take no proceedings.

Accelerated precognition, working within the stringent time limits that apply in custody cases, should be undertaken where there exist from the outset substantial concerns about the quality, as opposed to the sufficiency, of the evidence.

Rape victims should have early and co-ordinated access to medical support and advice as well as counselling and practical support.

It is recommended that there be a re-statement of the forensic, analytical approach that must underpin investigation of these cases by COPFS staff.

At times, the interviewing process, which is known as precognition, has not been sufficiently robust in exploring with the victim any weaknesses and contradictions in the evidence. We believe that that climate developed with the best of intentions to make the victim feel believed and comfortable with the process, but it might have inhibited and undermined investigations with the result that opportunities to address evidential weaknesses are lost and the presentation of the case is compromised. The precognition must be a frank but sensitive dialogue between the victim and the precognoscer.

The report includes a range of recommendations aimed at strengthening our communication with victims to improve their level of preparation for the trial. Communication between the police and prosecutors at the earliest stage is also to be strengthened to allow the procurator fiscal to provide advice and direction and to influence evidence gathering. It is recommended that, where there is insufficient evidence, formal feedback to the reporting police officer is introduced to improve common understanding of what constitutes sufficiency. The Lord Advocate will issue guidance to the police to improve the consistency of approach to the reporting and investigation of these crimes.

It is further recommended that, until the law is reconsidered by the Parliament, the charge of sodomy involving male or transgender victims and equivalent offences against women and children should always be prosecuted in the High Court.

Some of the more significant findings of the review recognised the difficulties with securing sufficient credible and reliable evidence on which to found a prosecution. A third of all cases of rape that are reported fall at the first hurdle when they are reported to the procurator fiscal by the police. The overwhelming majority of those cases—approximately 80 per cent—are marked no proceedings by the procurator fiscal on the basis of insufficient evidence. We might not be able to change the ultimate outcome of the analysis of evidence, but we must ensure that the investigation is as thorough and fair as it can be.

The restrictive definition of rape in Scotland—when compared with definitions used in other jurisdictions—coupled with the almost unique requirement for corroboration, presents a major challenge for the prosecution service. The limitations of the evidential relief provided by the so-called Moorov doctrine are significant for the prosecution in Scotland. The doctrine allows two or more victims whose evidence is otherwise uncorroborated to provide mutual corroboration where there is a close connection in the time, character and circumstances of the charges. However, it often precludes mutual corroboration of the allegations of victims from successive generations who have been abused by a parent or grandparent, even though the offending behaviour is strikingly similar. Likewise, where the accused is alleged to have abused several individuals of different genders or different vulnerabilities, the distinct nature of the circumstances of the charge or of the sexual conduct mean that the Moorov doctrine cannot be deployed.

The conviction rate for rape in Scotland is low, which is in line with the rate in most other adversarial jurisdictions, but Scotland is not a social backwater and the review confirms that other jurisdictions also struggle with these cases. We examined the approaches that are taken by a range of prosecution services in other Commonwealth jurisdictions and we have studied systems that have responded to the challenges of rape and sexual offending by introducing an element of specialism in their approach.

The review considered the benefits and the detail of systems of specialism and—with no element of pride or preciousness—their application in Scotland. It is apparent that what works in one jurisdiction, with its particular legal framework and culture, might not fit into another, distinct system. The review concluded that there is a high degree of specialism within the structures and system of prosecution in Scotland that is broadly equivalent to jurisdictions that employ specialist models. Crucially, it also concluded that, in line with other systems of specialism, the pivotal factor is the provision of detailed, comprehensive, specialist training and guidance to prosecution staff.

The outcome of the review is a proposed approach that is tailored to meet the needs and circumstances of the prosecution in the small jurisdiction of Scotland. The approach will draw on the benefits that have been observed in other jurisdictions rather than trying to bolt on to our system wholesale elements that were developed in other jurisdictions with their own unique legal and social cultures.

The report contains a range of recommendations that seek to ensure that staff are provided with enhanced guidance to ensure consistent, high-quality investigations, and we will introduce a competence-based training programme with a departmental certification procedure for staff who work in the area. No new member of staff should undertake work in the area until they become so certified. The review recognises that that is a substantial undertaking and acknowledges the tremendous experience and skill that already exist among COPFS staff, who have been engaged in dealing with these cases for many years. Indeed, the review found many examples of excellent practice that demonstrate the care and professionalism that prosecution staff bring to their work in the area. The report recommends that all actions, including the delivery of suitably targeted introductory, intermediate and advanced training, should be complete within three years.

Members should be assured that the outcome of the review signals a major reform of the way in which the COPFS approaches the investigation and prosecution of rape and sexual offences. We look to our colleagues from victim organisations and other criminal justice professionals to assist us in implementing the changes and in measuring their impact, but I am confident that implementation of the recommendations in the report will provide a sound basis to deliver an improved quality of investigation and prosecution. Our aspiration is to build strong, more compelling cases, while treating victims with the courtesy, respect and sensitivity that they are due.

Photo of George Reid George Reid None

The Solicitor General will take questions on the issues that her statement raised, for which I will allow about 20 minutes.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I thank the Solicitor General for the prior briefing and the courtesy copy of her statement. On the Scottish National Party's behalf, I welcome the efforts of her, the Lord Advocate and others in the Executive to address this most serious issue. As she said, rape and sexual offences are a considerable concern, not simply because they are vile offences, but because of the difficulties that are narrated in the conviction rates. Those rates do not tell the whole story, but they testify and perhaps point to an underlying problem.

The changes to the methods of prosecution are welcome but, as the Solicitor General was right to say, difficulties will require to be dealt with through legislative changes that will need to take place and by addressing cultural attitudes that have shifted but which the law and those who require to enforce it have not recognised. Will the Solicitor General say where we stand on matters that she or any of her colleagues is dealing with in relation to proposed legislative changes, although they are not part of her remit? What information is being sought on societal or psychological issues?

We welcome the enhanced role for specialist procurator fiscals in dealing directly with the police at the outset of cases. Will that involve a synergy with existing specialist units in the police or will contact be broadened in some cases to deal with other elements of criminal investigation departments or uniformed branches?

The Solicitor General for Scotland:

I am obliged to Mr MacAskill for his comments.

On the legislative position, the First Minister referred the important matter of the substantive law and the law of evidence in such matters to the Scottish Law Commission some time ago, and the commission has issued a consultation on that. The commission has been in contact with Crown Office officials, who fed our observations to the commission throughout our review. The commission also has the report of our review.

As I said, the commission's paper is out for consultation and I imagine that, following that consultation, a proposal for legislative change will be made. That is undoubtedly important but, as members will appreciate, it is not for the prosecutor to select what the law should be. It would be utterly improper for the partisan prosecutor to select the law in respect of such matters; that requires the Parliament's democratic consideration.

The prosecutor's enhanced role means that they will be available at earlier stages. These crimes tend to occur sporadically and at different times of the day. Often, local police officers encounter victims, so our police colleagues in the Association of Chief Police Officers in Scotland have considered carefully the policing of such matters. They were represented on our advisory group and made a major contribution to it. They have considered the police approach, and the forensic approach in particular, to such cases. The relationship between local police units and the procurator fiscal will be custom-built for each area.

Given that the jurisdictions and communities in which we live are disparate, the review would fail if we simply had a one-size-fits-all approach. The approach must be appropriate to the locality.

Photo of Annabel Goldie Annabel Goldie Conservative

I, too, thank the Solicitor General for the advance copy of her statement. On behalf of the Scottish Conservatives, I welcome the statement, which makes a positive contribution to dealing with an extremely serious issue that has been regarded as complex and perplexing in recent years. The statement represents progress.

If we accept that the very nature of what has taken place in a case of alleged rape means that there might be totally conflicting accounts of what happened and that, as the Solicitor General's statement makes clear, a third of all cases that are reported therefore fall when they are examined by the Crown Office, can the Solicitor General confirm that we might need to consider what other charges might be relevant for prosecution in those cases?

The statistics on the percentage of convictions arising from cases in which a charge of rape or attempted rape has been brought are perhaps slightly more encouraging, in that they stand at 56 per cent. In the light of her statement, does the Solicitor General believe that the measures to which she referred will lead to an increase in that 56 per cent conviction rate?

The Solicitor General for Scotland:

Rape cases are uniquely difficult because, unlike in many other crimes, rape often involves only the two individuals who were present, with no extraneous witnesses. Indeed, although there may be a belief that rape will involve injuries, very often there are no injuries. Also, after such events, many victims do not manifest distress in a florid, hysterical way but act counterintuitively by suppressing the trauma and thereby attempting to normalise their life for a number of days, or indeed years, afterwards, until eventually it becomes too much. What we perceive to be the natural reactions have been shown by research to be very different from those of individual victims.

As I said, rape cases are uniquely difficult, and juries struggle with the issues of credibility and reliability. The accused in most cases do not present as strange-looking individuals who lurk in bushes. Very often, they are good-looking young men who present well; the jury might also have an equally presentable victim. That is a difficulty.

However, where corroboration is a difficulty outwith the testimony that is given by the victim, the Crown will always look to what other charges could possibly be proved. The difficulty that we face in some circumstances is that, if the victim has in fact been raped with penetration—the definition of rape requires that some form of penile penetration of the vagina must have taken place if the test in Scottish law is to be satisfied—but we cannot corroborate that aspect of the case even though that is what happened, the victim is required to give evidence in an artificial way so as to exclude reference to the penetration aspect. In such cases, victims are required to do the opposite of what they swore to do—namely, to tell the whole truth—in order not to prejudice the position. To deal with that issue, the review has made a specific recommendation that I hope members will look at.

On whether the review will increase the conviction rate, as I said, the new measures are not a panacea. The actions that we take as prosecutors might contribute to better, stronger cases, but other complex variables are also at work. In particular, I refer to societal attitudes and the expectation that, in large part, a rape trial will involve someone being dragged off a street into an alleyway. The reality of rape in Scotland is that rape is largely acquaintance rape, involving people who may have known the accused casually; indeed, the accused may be a friend or family member of the victim. That is the reality of the vast bulk of rape cases that we deal with. Therefore, the other factors include educating the public as to what rape is in Scotland in 2006. However, the law and the legal framework are highly relevant factors.

We will do our part to ensure fair and thorough investigation. By fair, I mean fair not just to the victim but to the accused in such cases. As the public prosecutor, we act on behalf of the public interest. That means that we must take a fair approach to rape cases that also takes into account the vulnerability of those who may be accused of such crimes.

Photo of George Reid George Reid None

I would be obliged if we could have shorter questions and answers. Otherwise, I will not get everyone in.

Photo of Pauline McNeill Pauline McNeill Labour

Prior to the Lord Advocate's reference, it was necessary to address the issue of whether force or the threat of force had been used, so we have moved on considerably since then. However, given that it is still necessary to address the issue of how to prove consent, will the Solicitor General confirm that there will be a focus on ensuring that the law is clear in relation to consent? Does she agree that, if we can provide clarity on the evidential issues, victims will have more confidence in the system?

Can the Solicitor General further assure me that we will take our time to get this right to ensure that we strike the right balance between the victim and the accused in these very difficult crimes? Will she also assure me that we will consider whether the honest belief test should remain a subjective test? Finally, if she has time, will she confirm who was on the advisory group?

The Solicitor General for Scotland:

Until the 1980s, the common law in Scotland was fairly undeveloped. Until as late as 1989, it was lawful for a man to have forceful intercourse with his wife. Only in 2001, when the Law Advocate referred the matter, was the test of overcoming the victim's will removed from our common law. The test of consent makes proof of rape more difficult and challenging, because more cases can now be prosecuted. By their nature, such cases are more difficult to prove because of the circumstances in which the alleged rape took place. If someone is dragged off down a street, it is often much more straightforward to prove rape than in the cases that we now face. That does not mean that the law should not address that social evil. We do our best to ensure that cases are investigated with that new and important aspect of criminality in mind.

The First Minister specifically asked the Scottish Law Commission to consider the issue of consent, and it gave careful consideration to that very significant issue in its consultation paper. In the circumstances that we are discussing, consent may be express or implied, but it may also be contextual. If someone has been battered black and blue the night before and has been in an abusive relationship for 20 years, they may acquiesce to sexual intercourse with their partner or husband, but that may be in the expectation that if they fail to do so, they will undergo another episode of violence. Is that truly consent? In law, sexual intercourse with a child under the age of 12 is rape. Through the grooming process, a child may learn to accommodate and acquiesce to that type of conduct, but sexual intercourse with a child between 12 and 16 is not regarded as rape. We need to consider the context of consent in such cases. Quite properly, the Scottish Law Commission is looking carefully at that matter. As Pauline McNeill says, we must not have a knee-jerk reaction. This is a substantial and important part of our common law that requires very careful consideration.

The advisory group was an important group that represented a wide spectrum of people with an interest in the area. We were very much assisted by Scottish Women's Aid, Rape Crisis Scotland, the Glasgow violence against women partnership, the Equality Network, Outright Scotland and a number of other groups, including a representative of the Faculty of Advocates and a representative of the Law Society of Scotland. The group also included experienced prosecutors. A list of its members is contained in the report.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

The Solicitor General said that in a large number of rape cases the victim is related or known to the perpetrator. How will the way in which the review is taken forward be consistent with the approach to other areas of criminal justice, such as domestic violence? Prevention is crucial in this area. Will the Solicitor General commit herself to work with other Executive departments, such as the Education Department and the Health Department, to educate young men, in particular, and young women about their rights and the law in this area?

The Solicitor General for Scotland:

I will answer the second part of the question first. We have worked closely with other Executive departments. There was a representative of the Justice Department on the advisory group. Clearly, this is a cross-cutting area that involves education and health as well as justice and prosecution issues. A consistent approach will be taken, especially to the provision of comprehensive guidance and advice to victims of these crimes.

Over the past three years, the prosecution service has done a significant amount of work in the area of domestic violence. We have issued a protocol and have carried out an extensive programme of training of prosecutors on issues of domestic violence. That incorporates the subsisting issue of domestic sexual violence, so there is a close nexus between the two issues, which has been taken into account in the review. I hope that when the member reads the report he will see that there is a clear synergy between the two areas and a recognition of the difficulties that exist. Many juries struggle with situations in which a wife has remained with the man who is alleged to have raped her over the years. She may have gone on holiday and shared Christmases with him. However, that is the reality of many of the cases that are before us. The expectation of many members of the public is that, in those circumstances, a woman would simply walk out and leave, but that is a very difficult task for many women. We need to understand that and to address such issues collectively with the public.

Photo of Patrick Harvie Patrick Harvie Green

I commend the Executive on demonstrating the importance of the issue by its strength of numbers in the chamber today. We all welcome that.

I want to ask the Solicitor General about the recommendation that the delivery of training should be complete within three years. Given that we have recognised that there may be legislative changes in the pipeline, not least to the meaning of rape and consent, is there not a risk that we will need to rewrite and reconstruct that training completely within the three-year period?

The Solicitor General for Scotland:

Any changes in the law will be factored into the training that is provided. We do not want to sit and wait until the law is changed—indeed, that was a consideration in 2004 when I thought about the timing of the review and whether it would be better to wait until the law had changed. It is too important an issue on which to stand still when we wish to make progress.

There are many constant issues in the understanding of sexual offending—the psychological dynamics, the responses of victims and understanding the forensic evidence. The framework of the law is perhaps one of the more straightforward aspects for lawyers to absorb and learn about, as opposed to other more complex and challenging issues.

Photo of Colin Fox Colin Fox SSP

I welcome the Solicitor General's statement and look forward to reading her 200-page report in due course.

Notwithstanding the clarification that she gave of the different definitions of what constitutes rape in Scotland—which are narrower than the definition in England and Wales—does the Solicitor General accept that the conviction rates and public confidence in both jurisdictions are nonetheless low?

Given the 90 per cent increase in rape allegations made to the police between 2000 and 2005, which indicates a welcome change in attitudes towards reporting assaults, is the Solicitor General able to estimate what proportion of actual rapes are reported to the police? Is not it likely that, even with the increase in the number of complaints made, only a minority of rapes are reported to the police?

The Solicitor General for Scotland:

It is undoubtedly the case that rape remains underreported, as indeed is domestic violence. Irrespective of the improvements that we make in environment and our response to victims, it is still too difficult for many victims to bring themselves to report such cases.

It is apparent that even when that step is taken, many victims wish the prosecution to be discontinued because they cannot face the prospect of the proceedings or what they perceive to be the shame that is brought about through questions about their private lives and the intrusive nature of what takes place in court.

In the case of domestic rapes, mothers have indicated their concern about the label that will be attached to the father of their children and the subsequent damage to those children if they were to know that their father was a rapist. There is a toxic cocktail of difficult issues.

We know from Rape Crisis Scotland and the Glasgow violence against women partnership that a significant number of their clients do not report rape to the police. It is important that, even if no culprit has been identified or there is an insufficiency of evidence, we do as much as possible to encourage victims in Scotland to come forward so that they benefit from someone listening to them, medical attention, counselling and practical support. In that way, they can be helped to move on with their lives or indeed bring closure to the issue. Although there is often no conviction, there is a very positive benefit in their reporting cases.

Photo of Dennis Canavan Dennis Canavan Independent

Are there many cases in which an alleged rapist is not prosecuted because the procurator fiscal or the Crown Office has concluded that the victim is suicidal or so emotionally distressed that she is unable to give evidence in court?

Does the Solicitor General recall the Crown Office's mishandling of the infamous Glasgow rape case more than 20 years ago, which led to the resignation of one of her predecessors, the late Sir Nicholas Fairbairn? What safeguards are now in place to ensure that the Crown Office reaches the correct decision in such circumstances?

The Solicitor General for Scotland:

I remember reading about that case as a school student in the 1970s. It was clearly a seminal case for the prosecution service and how it responded to rape at that time. However, the member will be pleased to hear that there have been considerable changes.

There is now a presumption that where there is sufficient, reliable and credible evidence, the case will continue and a lot of support will be given. When a victim indicates that they do not wish the case to go ahead or they threaten suicide, that ipse dixit will not be taken as read and will be explored with the victim. They will be assisted and referred to Rape Crisis or for other counselling to ensure that their decision is being made with a free will rather than under pressure or because of some other psychological or psychiatric difficulty from which they might be suffering.

However, in some cases, the victim might indicate that, if we continue with the prosecution, that they will kill themselves—that they will run away or worse. In such cases, we carry out the fullest investigation into the circumstances, but we will not compel a rape victim to give evidence if they do not wish to do so. Although encouraging victims of other types of crime to give evidence might be in the wider public interest, compelling victims to give evidence when the matter is utterly outwith their control will only exacerbate the problem, rather than encourage women to report these cases. Rape is not a sexual crime in that respect; it is an abuse of power based on an invasion of and interference with a person's autonomy. We in the prosecution service do not wish to aggravate the situation by adding to the individual's sense of helplessness in such circumstances.

Photo of George Reid George Reid None

That concludes questions on the Solicitor General's statement. I apologise to the four members who were not called.