Scottish Government handling of delays to rape cases could be ‘open to legal challenge’
Delays in rape and sexual assault cases due to the coronavirus outbreak could be “open to legal challenge”, a rape crisis charity has warned.
Legal advice given to Rape Crisis Scotland states that the Scottish Government’s response to the prosecution of serious sexual crime during the pandemic “could be unlawful”.
The advice raises the possibility of trials without a jury, something that was considered and discounted earlier this year.
According to the legal advice given to Rape Crisis Scotland, the Scottish Government may have breached the four articles of the European Convention on Human Rights (ECHR).
These relate to torture, respect for family life, the right to effective legal remedy and prohibition of discrimination – the latter because most victims of sex crimes are women.
It also says the Scottish Government may have contravened the Victims Directive and the public sector equality duty in the Equality Act 2010.
There is an “objective basis” for treating sexual crime differently from other types of crime, the advice says, “particularly during the current pandemic”.
It also says the decision to remove judge-only trials as an option “would be amenable to judicial review”.
Judge-only trials were considered by the Scottish Government at the beginning of lockdown when it became clear that trials with a jury could not continue for safety reasons, but the proposal was dropped after opposition from the justice profession and other political parties.
Instead jury trials were put on hold, restarting again on 20 July using remote juries in separate rooms.
Last week it was announced that this would be expanded by using cinemas as extra courtrooms to allow more trials to take place, supported by £5.5m funding from the Scottish Government.
However, there was already a backlog of cases before lockdown and this has now grown, with some cases taking four years to come to court.
Sandy Brindley, chief executive of Rape Crisis Scotland said: “For lots of survivors across Scotland this is a situation that feels like it’s at breaking point.
“The issue of delays isn’t a new one, it existed before COVID-19, but the impact of court closures means that taking a gentle, cautious approach and tinkering at the edges is not an option.
“We are talking about asking victim-survivors of rape and sexual abuse to put their lives on hold for years for a slim hope of justice – that’s not a fair or reasonable thing to ask of anyone.
“We need bold leadership and action from a government in line with their commitment to ending gender-based violence and upholding human rights.
“It should not take a legal challenge for the government to recognise the harm being caused to people who have reported rape serious sexual assault by the current situation.”
This comes as the Scottish Centre for Crime and Justice Research (SCCJR) published a new report on the impact of delays on victims of sexual crime.
It says that sexual offences have “profound and distinct impacts” and that adverse consequences for victims that prevent them from moving on with their lives such as physical and mental health problems and difficulties in maintaining close relationships will “likely be precipitated by inordinate delays”.
The paper also raises community safety concerns where victims and possibly witnesses may be harassed or intimidated for an extended period while waiting for the case to come to trial.
“There is little doubt that the impact on survivors’ personal circumstances and mental health will be immense,” it states.
In addition, SCCJR notes that defendants’ human rights may also be breached under article six of the ECHR which provides for the right to a “fair and public hearing within a reasonable time”.
A spokesperson for the Scottish Government said: “We understand the impact trial delays have on victims – particularly those of serious sexual crimes.
“We have just announced £5.5 million to establish the ground-breaking solution of remote jury centres to rapidly increase the number of Scottish High Court trials.
“We have also provided an additional £226,000 to Rape Crisis Scotland so its essential services can continue during lockdown.”
He added: “We have been working tirelessly with partners, including victims’ groups, the Scottish courts and prosecution services and the legal profession to quickly find the best possible solution to deal with the case backlog.
“The ability to take forward juryless trials was considered as a temporary measure, but it was clearly apparent that parliament would not support that option.”