Crown Prosecution Service: Rape and Sexual Offences

Baroness Bryan of Partick Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Baroness Bryan of Partick (Lab)]

My Lords, my noble friend Lady Chakrabarti’s question is about the Crown Prosecution Service for England and Wales, but I am going to take advantage of the debate that she has kindly secured to highlight some of the issues that we face in Scotland.

The basic problems are similar. The police and the prosecuting bodies make public statements to encourage victims to come forward, stating that they will support women and men who have been subjected to rape or sexual assault. There has been an increase in reports to the police, but a decrease in the percentage of cases being prosecuted.

In England and Wales, the CPS has been accused of dropping rape cases that appear weak. This failure has been described by the director of the Centre for Women’s Justice as a “human rights failure”. Article 3 of the Human Rights Act requires “effective” police investigation and prosecution of rape cases.

In Scotland, the records show an increase in the number of reported rapes and attempted rapes, which were up 28% in 2016-17 and 20% in 2017-18. The percentage of cases that went on to be prosecuted went up slightly in 2016-17 but was still only 13.7% of complaints. In 2017-18, this fell to 10.1%. The percentage of reported cases that result in convictions is less than 5%. Nearly 20% of prosecuted cases end with a finding of “not proven”—I will come back to this later.

There are two major differences between Scots law and the law in England and Wales. The first is the need for corroboration. As the noble Lord, Lord Carlile, said, this used to apply in England and Wales but continues in Scotland. The second is that a jury has a third verdict as well as guilty or not guilty: not proven. Both differences appear to have an impact on cases of rape and sexual assault.

The requirement for corroboration of evidence in criminal cases is described as,

“an ancient and highly distinctive feature of Scots criminal law”.

It requires that each “essential” or “crucial” fact be corroborated by direct or circumstantial evidence. This requirement remains in place despite an extensive inquiry in 2011 by Lord Carloway which recommended its abolition. Research conducted for the report found that 58% of serious cases not pursued due to lack of corroboration would have had a “reasonable prospect of conviction” in England and Wales. The report concluded that,

“the requirement for corroboration could … make it too difficult to prosecute certain offences, for example those typically committed in private (such as rape)”.

There is one possible way of bringing a prosecution when there is no direct corroboration—the Moorov doctrine, stemming from a case in 1930. This was based on similar fact evidence, which could allow evidence from other offences to be used as corroboration. But that can add to the pressure put on complainants, as their cases are dependent on other victims who may change their mind or may have a weaker case, which could result in a decision not to prosecute or an unsuccessful prosecution.

The second handicap that can impact on successful prosecutions for rape and sexual assault is the option for a jury to find a case not proven, which has the same status in law as not guilty. Juries may use this when they consider that the accused may be guilty but insufficient evidence has been presented by the prosecution. The not proven verdict is used disproportionately in rape cases. Rape Crisis Scotland pointed out that nearly 30% of acquittals in rape and attempted rape cases were not proven, compared with 17% for all crimes and offences.

I shall give two examples of how this has impacted on women. Emma reported a man who had raped and abused her when she was a child. The police explained to her that the key factor in determining whether to take forward a prosecution would be corroboration. Even though there was documentary evidence in social work and medical records, it was not sufficient, as there was no corroboration of each element of the charge. Although another family member had been abused, she did not want to become involved, so the Moorov doctrine could not apply. Emma believes that if the abuse had taken place in England, her abuser would have been prosecuted.

Miss M was raped and her attacker was prosecuted, but the jury gave a not proven verdict. Last year she took her case to the civil courts and succeeded in establishing that she had been raped by the man she had accused. The sheriff accepted that the evidence was cogent, compelling and persuasive. She was, however, made to go through a second court case, at tremendous personal stress and financial cost.

The corroboration requirements should have been abolished following the Carloway report in 2011. The recommendation to scrap it was supported by the Scottish Government, the Crown Office, Police Scotland and campaigners for victims of domestic violence and rape. But it was opposed by all the High Court judges in Scotland, other than Lord Carloway. One of the judges, Lord Cullen, stated:

“It’s very important that”,


corroboration,

“is there and always has been for centuries as a safeguard against wrongful conviction”.

Making particular reference to rape cases, the judges warned that,

“the abolition of corroboration may result in miscarriages of justice”.

But we can be sure that miscarriages of justice are happening regularly in a system where cases are not brought due to lack of corroboration.

In 2014, the Lord Advocate, Frank Mulholland, stated:

“In the past two years, 170 cases of rape have had no proceedings taken in them because of insufficient evidence, which in many instances is a lack of corroboration”.


Another judge-led review into how sexual offences are dealt with in the Scottish criminal justice system is under way. This has been welcomed by Rape Crisis Scotland and other support and campaigning organisations, but we have to hope that, when it reports next year, it is followed by swift action to ensure fairness for the accused but also justice for women and men who have been subjected to rape or sexual assault.

Will the Minister in his role as Advocate-General for Scotland lend whatever weight he can to encourage the abolition of the need for corroboration and an end once and for all of the use of the not proven verdict?