With Scotland’s rape conviction rate at an all-time low, Rory Cahill talks to the parties involved and looks at ways in which we can try to improve the situation

The accused sits with his back against a plexiglass shield, while behind him, the family of the young woman he is charged with abducting, assaulting and raping, sit watching the proceedings in Edinburgh High Court number four with arms linked, a support worker by their side.

It’s very hard to hear what is happening in the court over the relentless low hum of the air-conditioning. even if it was switched off, the formalities and structures of the Scottish court system make it difficult to follow what is happening for those without a solid knowledge of the law. To the left sit the jury, a group of people who, appropriately, you would not look twice at if you passed on the street.

The advocates, their deputes and solicitors sit on either side of a table, while the judge sits at her bench. The room is quite small, the atmosphere very tense and the verdict about to be delivered.

With the noise of the air-conditioning and the convoluted manner in which courts operate, the family of the victim – who is not in court herself – do not understand that the accused has just been acquitted of the abduction and rape charges, although he has been convicted of assaulting his victim. Their support worker, provided by Victim Support Scotland, explains what has happened, to immediate and obvious anger and sorrow.

Having done their duty to the best of their ability, the jury is discharged after the judge thanks them for their time and efforts. They leave looking drained after nearly four days in court. The judge asks the accused – now the prisoner – whether there will be a bail application. Given he only now faces a Sherriff Court matter – the assault charges – and has already spent just over six months in prison, he could well be given bail only to re-appear in the next week to be told the sentence for the assault is 12 months, meaning he will not have to return to jail, having served over half that time already.

But the judge might also impose a longer sentence, meaning he’d have to return to jail having had a few weeks outside. As it is, he doesn’t apply for bail, preferring to wait in the few weeks until he is finally sentenced in jail, knowing that even if he is given a few more months, he will not be doing anything like the time – years – he would have had to do if he’d been convicted on the more serious charges.

Having requested ‘reports’ – assessments of the prisoner’s willingness and capability to rehabilitate himself, drug and alcohol dependency issues, mental health status and so on – the judge sets a sentencing date in the first week of June and the court rises. Then something truly awful happens.

As he stands to be escorted down to the holding cells, the prisoner turns to the viewing gallery, looks at the mother and sister of the girl who he has just been acquitted of raping, and blows them a kiss. He flicks his tongue out repeatedly like a snake. The gesture is both deeply contemptuous and overtly sexual

He flicks his tongue out repeatedly like a snake. The gesture is both deeply contemptuous and overtly sexual

The relatives immediately launch themselves forward, shouting and cursing: “You fucking animal!” But the prisoner is gone now, the damage done. In a short time – weeks and months, not years – he’ll be back living in the same deprived Fife town as his victim and her family. Reprehensible as it was, he can afford to gloat.

Sadly, the scene played out in Court 4 on a bland afternoon is not only common in Scottish courts, it’s the absolute norm. Only 3.9 per cent of 975 rape cases recorded by Scotland’s police in 2005/06 ended up in a conviction. Procurators Fiscal took 88 of those 975 reports to court and secured a conviction in just 38 of them. To give this some context, consider that in the same year, there were 19,807 reports of violence against the person, resulting in 5027 proven charges from 6050 court proceedings. For house breaking, the situation is even better – or bleaker, depending on your point of view. Of the 2258 people taken to court in Scotland for housebreaking in 2005/06, fully 1989 had the charges against them proven.

The situation becomes even worse when one considers how many rapes and other sexual assaults are not reported to the police. Rape Crisis Centre Scotland’s Eileen Maitland points to research in the British Crime Survey estimating that between 1 in 5 and 1 in 8 women does not report their rape to police, along with the findings of the Edinburgh Women’s Safety Survey which concluded that one in three women is sexually assaulted at some point in their lives.

Maitland says that the Rape Crisis Centre Scotland is trying to build a more informed picture of the level of sexual assault and rape in Scotland: “The data is somewhat scattered; we are currently reviewing our procedures and piloting a statistics database with individual crisis centres in order to gain a clearer and more consistent and comprehensive national picture. We hope the initial sets of figures from this will be available later this year.

“One real difficulty we have is the lack of clear and reliable data in relation to rape and the justice system – so, for example, we know that only 10 per cent of the rapes recorded by the police get to court, but we don’t know where and why these cases are falling out of the system, such as cases not being passed by the police to the Crown, cases being marked no proceedings, cases where the complainer herself doesn’t feel able to continue with the case or give evidence. It is hard to see how we can improve the current situation in general until we have much better information about what is actually happening.”

What is happening is that while fewer and fewer Scots, almost always male, are being charged and locked up for sexual offences, even those who are brought to justice are being sentenced to shorter stretches in jail. In 2000-01, the average jail term for a convicted rapist in Scotland was seven years, but this had fallen to just over five and a half years by 2004-05.

Maitland says that a change in the way Scottish courts view rape that came into force in 2001 may have, perversely, by making it easier to prove rape charges, actually reduced the ‘severity’ of the crime in the eyes of some judges, and thus the length of sentences they impose.

“Previously a court had to be satisfied that the accused person had overcome the victim’s will, but this was relaxed in 2001 to having to show simply that the victim did not give her consent – it is possible that this has resulted in the crime of rape being taken less seriously in some instances, for example, if the woman has no physical injuries. Also, as things stand at the moment, if an accused man is able to prove that he ‘honestly believed’ that a woman was consenting, however unreasonable or unfounded that belief might be, that will stand as a defence for him,” she says.

It might sound trite, but consent is, and always will be, the very nub of rape cases. Advances in technology have made it possible to prove beyond reasonable doubt – current DNA technology reduces the chance of error in its findings to one in many billions – that sexual intercourse took place but this means nothing if the man charged with rape agrees that the sex took place and that the woman, or other man, consented to it. It is also important to remember that unlike most other Western jurisdictions, in Scotland, rape is defined purely as the penetration of a woman’s vagina by the penis. All other forms of rape – digital and oral – are classed as sexual assaults.

"Scotland is labouring with the most restrictive definition of rape in the Western world

Scotland is labouring with the most restrictive definition of rape in the Western world

The work done by these Crown officials formed much of the basis for the current Scottish Law Commission’s review of how rape cases are dealt with, and most importantly, what evidence needs to be presented in order to make a charge stick. As it stands, this evidential issue – the notion of ‘corroboration’ – is seen by many as a major hurdle for prosecutors. Corroboration – the idea that any evidence must be backed up by another source – is required in all Scots criminal cases but is particularly problematic in rape cases which can almost always be boiled down to a ‘he says, she says’ scenario.

“The evidential requirements in Scotland are particularly demanding. In England and Wales, they don’t require corroboration. In fact, you’ll struggle to find any other jurisdictions worth comparing that require corroboration. And that’s not just corroboration of the physical act but also that the victim didn’t consent and that he knew she didn’t consent. each of those constituent parts have to be corroborated, including what was in the accused’s mind in circumstances where there is rarely any other witness other than the complainer and the accused,” says the official.

The effect of societal attitudes cannot be underestimated either. It’s an unpalatable truth, but large sections of our community – those who make up juries – genuinely believe that a woman who is drunk, or dressed skimpily, should be held responsible in some way if she is raped or otherwise assaulted.

“There is no getting away from that. When we were finalizing the review, Amnesty published a report showing that the public who are judging these cases, some 30 per cent of them are prepared to attribute blame to the victim if she had been drinking or to attribute blame to the victim if she was wearing short clothing or had acted flirtatiously or had been indulging in any consensual conduct with him, if she’s snogged him or whatever and then it went too far. There seems to be an uphill battle in putting the emphasis back [on] his conduct,” says the Crown Office official.

But are so many men accused of rape being acquitted simply because of the stringent evidential requirements or because of unreconstructed attitudes among jurors? Ian Duguid, chairman of the Faculty of Advocates Criminal Bar Association questions the strength of many cases brought by the Crown Office:

“You would be better advised asking the prosecution side of the case, the Crown Office, why so many cases are brought to court which might otherwise not be brought, simply on the basis that the evidence is simply so thin or so poor that it should never really have been brought into a court in the first place.

“Historically, I think public prosecution in Scotland has taken a view that if a complainer makes an allegation of rape, she’s entitled to have that matter aired in a court.

So there are very few cases which are actually knocked out by the prosecution giving a close examination of the strength of the evidence or indeed the facts. I can’t speak for the Crown Office but generally, those of us in practice tend to see some very – I wouldn’t say poorly prepared – but some cases which are coming before the court which in terms of the strength of the evidence, it surprises practitioners that they are even coming before the court. I don’t think that’s the whole answer to the low conviction rate, but it’s one of a number of factors that need to be taken into account.”

While the Law Commission’s review – due to report in the autumn – is likely to reflect the widespread view that Scotland’s rape laws, and their evidential requirements, need to be reformed, educating public opinion will take much longer. But in some areas, there has already been great success in improving the way we deal with rape and sexual assault cases.

That women reporting sexual assaults no longer face inconsiderate or downright hostile treatment from the police as they did in the ‘bad old days’, is now well known. Specially trained officers, almost always female, and sympathetic procedures now aim to make the process of reporting a sexual assault less uncomfortable and less daunting.

And if a case does come to court, procedures have been put in place to allow victims to give evidence without facing many of the pressures they faced previously. The Vulnerable Witnesses (Scotland) Act has given more protection to witnesses and complainants in most rape and sexual assault trials.

But given the nature of our system – and the duty placed on advocates to represent their clients to the best of their ability – witnesses who may have experienced or seen quite distressing acts still need to be questioned in court. Even though such witnesses can now give their evidence over ‘LiveLink’ CCTV, meaning they do not actually have to stand in the courtroom, the experience can still be terrifying.

Advocate Simon Di Rollo talks to trainee advocates about their responsibilities when dealing with vulnerable witnesses like children and those involved in sexual attacks. “This has become a lot more important because there are a lot more cases involving child witnesses than there used to be. The number of cases involving sexual abuse has risen in the last 20 years. Our training programme involves practising on witnesses the types of questions you would ask, so people are trained how to take these witnesses and question them during cross-examination. We don’t use children for that. It wouldn’t work,” he says.

Mastering the use of the CCTV equipment is vital, says Di Rollo, who explains hat when working as a Fiscal, he would ensure that child or vulnerable witnesses were fully familiar with the operation of the technology and understood who would and wouldn’t be able to see their faces.

“You have to familiarize yourself with it because you are not using it day in and day out, you do actually need to practise. Inevitably, there is a bit of a different style of questioning (when using the CCTV) because there is often a gap between asking the question and getting an answer back,” he says.

Di Rollo says that the method of questioning vulnerable or child witnesses revolves around simplicity: “One fact per question,simple language, keeping the subject matter short and telling them what it is you are asking them about, using precise language, tone of voice is important and obviously being sympathetic to their position.

” Upsetting vulnerable witnesses is counter- productive says Di Rollo, but he also warns that to do his or her job properly, an advocate sometimes needs to broach painful ground or adopt stronger questioning techniques.

“That is not going to achieve a great deal in terms of getting the facts on your side. It’s bad advocacy. But having said that, you do sometimes get recalcitrant children that need to be dealt with firmly. Although they are vulnerable witnesses, you have to be alive to the fact that are not necessarily telling the truth or being honest and the whole process is designed to assist in that. But if you are acting responsibly – and we always say to people that cross-examination doesn’t mean examining crossly – then you use proper techniques to get the evidence you need without unnecessarily upsetting the witness. But sometimes it is unavoidable,” he says.

There’s confusion as we move out of Court 4. Due to the nature of the construction of the High Court, unless correctly timed, there is a chance that victims and offenders might cross paths as the offender is being taken back downstairs to the holding cells. The court staff get the timing right and the offender is led downstairs, still smirking to himself – and who can blame him, given he has just avoided years in prison – while the victim’s mother and sister wait with their support worker in another room.

A few minutes later and the two women leave, walking out into a cold afternoon. They turn down the high Street and head for Waverley Station to get the train back to Fife. “That’s them home to tell her what’s happened,” says the support worker as we watch them disappear into the distance

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