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The next item on the agenda is vulnerable and intimidated witnesses. We wanted to take evidence on the proposals to improve protection for witnesses in cases involving allegations of rape. There has clearly been a great deal of recent publicity about the issue, in connection with what the Executive may be doing and other matters. I decided that because, for entirely unconnected reasons, we would have time in the meetings this week and next to take a limited amount of evidence, it would be appropriate to put this item on the agenda.
It is question 6.
Ah, well—perhaps that was not hugely relevant.
We are really out of sync today, convener.
Do not tell me that you have no statement. [Laughter.]
We need to practise more.
Never mind.
I apologise for being a mite harassed.
That is okay.
I wish to lay out what the positions are.
Article 6 of the European convention on human rights deals with the right to a fair trial. Paragraph 3d of article 6 makes it absolutely clear that the accused shall have the right
I am not asking about the reasons; I know what they are. I am asking whether that is your position.
I understood you to be asking whether there are circumstances in which an accused person should never have the right to defend himself. The locus for my answer is the ECHR—the accused would always have the right to be defended. What we are saying, and what the Home Office has satisfied itself is compatible with ECHR, is that in rape and sexual assault trials—and, indeed, in cases that involve other, very vulnerable witnesses—the right of the accused to cross-examine personally the witness should be withdrawn.
For the avoidance of doubt, I want to be clear on this. The locus is not ECHR—the locus is the law of Scotland. Obviously, we are trying to ensure that the law of Scotland is compatible with ECHR, but while the law must be compatible, ECHR is not our motivation for doing things.
It is not that they should not be allowed to defend themselves, because they can do so through representation. We are saying that the direct cross-examination of a victim of rape or sexual assault by the accused should not be allowed.
I repeat that there is a locus for ECHR on both sides. A recent case, which was settled, between the Home Office and Europe, where the victim in a rape case had been cross-examined by the accused personally, would have had a strong chance of being upheld in Europe under article 3, which deals with protection from inhumane and degrading treatment. For every ECHR right for the accused, there is a right for the victim. I totally understand what you say about Scots law—it is a contextual matter. However, we believe that there is now a locus for ECHR in such cases. While we do not have detailed information, we understand from officials that, for some reason, there are concerns that some of the more unique features of Scots law procedure will make the enabling of such a prohibition, without challenge from the accused, more difficult than in England.
Forgive me—I did not want to get into whether such a prohibition is ECHR compatible or not. That is for lawyers, and in this context I am not acting as a lawyer. I am just asking you, as witnesses, what you want.
That is a matter for discussion. Our view, which reflects the changes that are taking place in England and Wales, is that the prohibition should certainly cover rape and sexual assault cases. In such cases, the person who is accused of committing the offence should not subject the victim to direct cross-examination.
The provisions in "Speaking Up for Justice", which are going on statute, set out a series of procedures whereby criminal justice officials will be able to suggest to the court that, because of the particular vulnerability of an individual victim—
I am sorry to interrupt, but can we establish the status of what you are talking about? You said that the recommendations in "Speaking Up for Justice" are "going on statute". What do you mean?
The document "Speaking Up for Justice—Home Office Report on Vulnerable and Intimidated"—
Oh—in England. I needed to clarify that, as I was slightly puzzled. I was not aware of any legislation, and you meant the English legislation.
Thank you for reminding me of the turf on which I give evidence.
The minister is also interested in strengthening the provisions restricting cross-examination on sexual history. The word "strengthen" begs the question how the present provisions might be altered. Do you have any suggestions?
We are aware that the excellent provisions that were brought in to limit the level and nature of questioning have not proved effective in every case. Lynn Jamieson's research has shown that good practice guidance has not been observed universally by the legal profession. There are issues around good practice guidelines in relation to cross-examination in general, which could stand being reconsidered.
There may be an issue about enforcing existing provisions, as opposed to strengthening them. Much depends on how the judge who is presiding over the court interprets the guidelines.
Another side to the general conundrum around what happens in court, in relation to the giving of evidence on rape and sexual assault, is whether the primary witness—the rape or sexual assault victim—is enabled under our system to give best evidence.
Is there any indication that the quality of evidence from a victim is directly affected when the accused defends themselves?
Going to court to give evidence about such a personal crime is already stressful. We know from cases that are no longer sub judice that the added stress factor of facing the accused takes an emotional toll that impacts on someone's ability to remain calm and to give evidence clearly. That in turn affects the process. We would be concerned about the long-term impact that that has on the individual's mental and emotional health.
I want you to specify whether the quality of evidence in court is directly affected by the right of the accused to cross-examine.
I am not sure that there is any empirical evidence with which to respond to that, but you can draw your own conclusions. If a witness feels that they are going through a tortuous and degrading scenario, that is unlikely to improve the quality of the evidence that is being put before the court.
I do not know whether you can answer this question, but does a person have a categoric right, in every case in every court, to defend him or herself? Are there any cases in which, in theory, you cannot represent yourself?
You would need a lawyer to answer that.
Has anyone looked at the possibility of a kind of indirect representation? Arguably, that is why we have solicitors and advocates, but I am thinking about the fact that the person who wants to cross-examine the victim wants to ask detailed and intimate questions that they themselves have framed. Has anyone looked at the possibility of doing that through a third party?
Again, members of the committee are probably better placed to answer that question than we are. We have an adversarial system of justice in Scotland, which means that witnesses are examined and cross-examined. We take the view that in Scotland we should be looking at alternative means of obtaining evidence to put before the courts. For example, in rape and sexual assault cases, the cross-examination could be done in some other way, such as being done on oath before a judge and agreed by the parties before going into court. I suspect that that would be greeted with substantial alarm.
That would raise eyebrows.
At least, but we should not rule anything out. I know that in court people are not victims, they are simply witnesses, but sometimes they have been subjected to horrendous physical and sexual assaults. Do we want the kind of justice that takes a woman who has been raped and puts her in a public court with strangers and insists that the person who she knows committed that assault on her—
Can we be careful? Let us remember that until there is a conviction, we are dealing with an allegation.
I accept that, but I am talking about the victim's perception. The formal position may be that one person is a witness and one is the accused, but from the victim's perspective—which in many cases is correct, because the accused is found guilty—and from ours, to put people who have been raped in that position is not acceptable in the 21st century. There must be better ways of getting fair and equal justice than having to talk to someone in a witness box. That is the basis of our point. It is not a case of rights in the European convention on human rights, but rather the human rights that we should have in any democracy.
I do not disagree with you, but as Gordon Jackson pointed out, in our law people are innocent until proven guilty. If we are to make changes to the law, I want to be clear about the evidence.
As far as I am aware, the Crown Office does not monitor or record those cases in which accused people defend themselves.
David McKenna commented on the victims of rape. Does Victim Support recognise that there can be victims on both sides of the argument and that, on occasion, false allegations are made? Does it acknowledge that there have been cases of individuals taking their own lives following the stigma and anxieties that were caused by such false allegations?
Of course we do. Nevertheless, we are here today to present the views of the victims. In previous evidence, we reminded the committee about the battery of experts who are there to advise the accused, and the fact that in our system the victim has absolutely no right to representation.
If, within the criminal justice system, we can recognise that the accused person is innocent until proven otherwise and treat them accordingly, surely we can accept that a victim is a victim until proven otherwise and treat them accordingly. We must consider how we treat people and ensure that we give them basic rights.
I go along with much of what you have said. However, rape victims are given a degree of anonymity, whereas someone who is charged with rape loses any claim to anonymity. In the period before the matter is brought before the courts, it can play on an innocent person's mind. I recognise the cases that you refer to, but there have also been cases of people making accusations maliciously. I recognise that those cases are minimal, but when we consider the full implications and seriousness of a rape charge, we must consider both sides of the argument.
Is your position that the rights of one person should not outweigh the rights of another?
Yes.
To overcome that, even if we cannot stop an individual cross-examining the victim, do you not think that video-linking should come into play automatically? We could allow someone to conduct their own defence, but find some substitute for cross-examination, which is the part that causes such alarm to the individual who is being interrogated.
We understand that that is what is being prepared as the new approach in English and Welsh courts. Video-linking is absolutely vital, especially for children who are giving evidence. I am glad that you were not suggesting that the situation would be ameliorated in a case where an accused wants to personally cross-examine by video, because I imagine that that could create an additional set of horrible reactions. However, that is not what you were proposing.
No, it was not. The tone of your evidence suggests that the current balance is wrong; the sexual experience of the accused is not brought before the court, yet the victim's relationship with individuals outwith the relationship with the accused is trawled before the court. Are you suggesting that there is an imbalance, and that if something is good for one party, it should be good for the other?
Yes.
Have you any evidence to suggest that the way in which rape trials are conducted is the reason why so few people come forward in the first place, and that the success rate for taking rape cases to conviction is dramatically lower than for other crimes?
We have been told informally, by people working in the Crown Office, that one of the reasons for conviction rates being so low is the number of cases that are being prosecuted that would not have been prosecuted before. That may be a result of increased awareness or pressure on authorities to do something about the serious allegation of rape or sexual assault. I cannot give a view on that, other than to say that the way in which cases are prosecuted could be improved. We made suggestions earlier about the need for specialist knowledge and possibly even specialist prosecutors.
Unlike Gordon Jackson, I do not have the slightest problem with people who are accused of rape and sex crimes automatically not being allowed to cross-examine alleged victims in court. How often does intimate cross-examination of sex attack victims occur in Scotland? Even if it is only once or twice, that is once or twice too often. From your work, do you have any evidence of the effect on victims of rape and sex attacks of being cross-examined by the person who is accused of carrying out the crime? Does it have an effect on the number of women who report sex crimes?
As I understand it, no records are kept and there is no monitoring of cases in which accused people represent themselves in the cross-examination of the victim. It is not every month that a victim of rape or sexual assault is directly cross-examined by an accused person. However, it is common enough—we could probably say that it happens every week in a court somewhere in Scotland—for an accused person to cross-examine a woman in relation to a charge revolving around sexual behaviour. In cases of minor sexual assault charges, it is far more common for people to represent themselves, not just during cross-examination of the victim, but throughout the case. The more serious the case, the greater the likelihood that the accused will be represented.
That is absolutely right. From this year, our new and improved statistical monitoring database will enable us to analyse more closely every case that comes to Victim Support Scotland. We will be doing that for a number of types of crime and situation.
We have concentrated on cross-examination of witnesses, but a matter that concerns me in relation to vulnerable and intimidated witnesses is the reporting of cases by the media. Any woman who has witnessed the way in which the newspapers report sexual assault and rape cases would be deterred from pressing charges in such cases. I know that from personal experience.
We tend to think about victims' rights as being exclusively concerned with criminal justice, but the victimisation that results from crime is, essentially, a social issue. The issue of victims' right to privacy is fraught with difficulties because involvement with the media is conducted on a voluntary and consensual basis. We are trying to carry out joint work with our sister Victim Support organisation in England and Wales and with the press to determine whether we can establish greater agreement on reporting of personal crimes. That will result in a general overview of the problems that are faced by victims outside courts when they are pursued by the media, especially in cases that attract a lot of media attention, such as those that involve rape and sexual assault.
I think that they are always allowed to remain when the court is cleared.
Yes, they are. In a case that I dealt with recently—which, I should add, is no longer current—the press were allowed to remain behind on every occasion.
I have never known them to be excluded.
No. I do not want to go into the case in detail. However, I cite it as an example.
We do, but we feel that, unless we also safeguard and protect victims outside the court in cases of intimidation, the objective would be only partly achieved. A witness might feel more secure in court and give better evidence, but if he or she is subjected to a barrage of media intrusion on leaving the court, there is still a problem.
That is a fair point. Do you feel that the mechanisms that are used by the Crown Office and the police to assess whether witnesses are vulnerable are adequate? Your evidence would suggest that you do not. Do you feel that implementation is patchy across the country? There seems to be a better understanding of how to recognise and deal with vulnerable witnesses in some parts of the country than in others.
There should be a substantial overhaul of the way in which the justice system recognises the vulnerability of witnesses. Over the years, guidelines have been issued by ACPOS and by the Crown Office. For us, the key issues are that there is no agreed definition of vulnerability that applies across all agencies in Scotland and that the definitions that we have come across are rather narrow and too well defined. The definition of vulnerability should be open enough to allow identification of vulnerable people by the nature of the crime, by the characteristics of the victim, by the relationship to the accused or by all three of those things. Victims of racially motivated crime should also be recognised as vulnerable. We would like a more open interpretation of vulnerability—one that everyone could agree on and that would inform the police service and other agencies.
Is your experience that the police have one interpretation of a vulnerable witness, that the Crown Office might have another and that the witnesses themselves might have yet another interpretation of what it means to be vulnerable?
The important point about defining vulnerability is that there are no special measures available further down the track. In Scotland, one can have access to special measures only if one is a child or a victim of rape or serious sexual assault. There is also a statutory definition that includes people with specified mental health challenges. Those are the only people who can access special measures in court. We believe that other victims and witnesses should be entitled to special measures because of their vulnerability, but their vulnerability often does not fit into those narrow categories.
Off the top of your head, what percentage of victims and witnesses would you end up classifying as vulnerable? I know that you will not have detailed research on this, but do you have a feel for what the percentage might be?
We could be talking about somewhere in the region of 10 or 15 per cent of all witnesses who go through the court system. That does not mean that all those witnesses would require special measures, but it means that special measures ought to be available to them, if appropriate.
The convener said that there is a report in The Scotsman today that expresses anxiety about the ways in which vulnerable witnesses might be protected. I have not seen that article, but I know from my discussions with Angus MacKay that he wants to change the current situation. Some of the anxieties might come from those—the legal people who are urging caution—who will have to find the means by which that protection is to be achieved. However, the matter concerns people outside the circle of judicial and legal advisers and we sometimes feel that we are in conflict with the legal system on this issue; its opinions seem to be out of kilter with others' feelings about natural justice.
Last week, we took extensive evidence on victim impact statements. I do not want to rehearse the same point.
The question is linked to the idea of rape victims feeling that someone is speaking up for them.
Please keep your response to that aspect of the question brief. I ask Johann Lamont to have a look at some of the comments that were made on the record last week.
There is no doubt that a personal victim statement of the type that is used in England and Wales would improve victims' experiences. That would also ensure that courts had full information about concerns about victims' safety, especially when sentencing is being considered.
I feel, after listening to you, that we need to do some research and to get some figures on what is going on. On the one hand, we are told that such cross-examination hardly ever happens and that it is not significant. On the other hand, David McKenna has said that someone is cross-examined in Scotland in that way once a week—perhaps not in a rape case, but in a sexual assault case. We also have to tease out the motivation of an accused person who wants to cross-examine the victim, especially if he has been represented by an advocate and then decides suddenly that he wants to cross-examine the witness himself.
Absolutely. If Parliament focused on the treatment of women and children in sexual crime cases in the criminal justice system, it would be giving one of the strongest signals that it will examine the issue fundamentally. That might not be the whole story—there might be social issues that must be tackled in the long term to change things fundamentally. We cannot, however, wait indefinitely for a complete and overarching strategy before tackling some of the pressure points.
I have been interested in what has been said so far. Is there evidence that women who are supported by the fiscal service or by the Crown Prosecution Service throughout a rape trial are in a position to give better evidence and have a better chance of securing the conviction that they want? Is there evidence that people who are well supported by the Crown make better witnesses?
That is an interesting choice of words. The question of how supportive procurators fiscal can be—given that they are prosecuting in the public interest—is exercising the Crown through the Lord Advocate's feasibility study. The simple answer to your question is that the victims of rape and sexual assault are not, at the moment, supported through the process by the prosecution. The Crown has made great efforts to ensure that much higher priority is given to the quality of interviewing of victims of rape and sexual assault, to the way in which precognitions are taken, to the quality of information that is given to victims, to familiarisation of victims with the court and so on.
After helping witnesses through a trial, is it your experience that if they do not have closure—to use an American expression—after the event, they do not feel that the trial has been worth while?
In general, most victim witnesses, particularly in the most serious cases, find the whole process distressing. Most victims are dissatisfied at the end of a trial and feel that the system did not work for them, irrespective of whether the verdict is guilty, not guilty, not proven or whether a sentence is five or 10 years. In the justice system, there are not many satisfied victims of crime.
Moreover, in our justice system there is not much process or ritual involved in sentencing that enables the victim to feel that their experience is recognised as part of the process. It is only occasionally that, in summing up, a sheriff or judge will address the trauma of the victim and the difficulty that the victim has experienced. Clearly, there are symbolic as well as practical deficiencies in our system. Visitors to this country often say that sentencing is over in a flash.
One reason why judges and sheriffs do not comment is that their remarks will be picked up by the press. Even the most inconsequential comment can end up in the headlines.
I am aware that Phil Gallie has indicated that he wishes to flag up a related issue, although not one that is specifically concerned with rape. Before I move on to that, I would like to run through some straightforward questions, to which I hope I will get straightforward yes or no answers. We received a summary of the recommendations that are in "Towards a Just Conclusion"—the consultation that took place about a year and a half ago. Are you aware any movement on those recommendations?
We are not aware of any change.
Recommendation 13 was:
No, but the Crown Office is talking about conducting it.
The paper was issued in November 1998.
No.
Recommendation 16 was that the law of evidence should be changed
No.
Recommendation 16 went on to suggest that
No.
Recommendation 17 was:
Yes, but we do not think that more research is needed. We made that point.
I am concerned that some of those recommendations, which appeared 18 months ago, have not, as far as you are aware, been implemented.
We hope that the action plan will give an update on that.
Do you mean on progress in particular areas?
On all the recommendations. The action plan for "Towards a Just Conclusion" might tell us about things that we do not know, but which are going on behind the scenes.
But you have not been involved in and are not aware of any work on issues such as the Crown Office review.
No.
There are other recommendations, but you have given us a fair indication of what is happening.
It is pretty unrelated to that, but not to witness support. On several occasions you have mentioned the situation in England and Wales, which differs from that in Scotland. When a verdict of not guilty or not proven is handed down in Scotland, the individual concerned cannot be brought back before the courts. I understand that south of the border, if there is evidence of witness intimidation or of interference, a retrial can be ordered. Would Victim Support give its support to that happening in Scotland?
Where someone has acted to pervert the course of justice, there are special circumstances. I suspect that we would support a provision that allowed such cases to be brought back to court and reviewed.
Thank you very much. Before you rush off, Gordon Jackson has a point of information.
On stalking, the idea was that previous convictions should be set out more specifically, so that sheriffs would know what the breach was. That point is being addressed by a working party of the Lord President, which is likely to recommend the change. In addition, Lord MacLean is dealing with the matter in his committee on serious violent and sexual offenders. Two separate committees are likely to recommend the change, which we would all welcome. I thought that I should share that information.
Thank you, Johann and Gil.
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