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Chamber and committees

Meeting date: Tuesday, May 1, 2018

Meeting of the Parliament 01 May 2018

Agenda: Time for Reflection, Business Motion, Topical Question Time, Early Learning and Childcare, Commonwealth Games, Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill: Stage 3, Decision Time, Rape Crisis Centres and Prosecutions


Rape Crisis Centres and Prosecutions

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a members’ business debate on motion S5M-11217, in the name of Kezia Dugdale, on support for rape crisis centres and prosecutions. The debate will be concluded without any question being put.

Motion debated,

That the Parliament welcomes what it sees as the Scottish Government’s broad commitment to addressing violence against women and girls, which it set out in the strategy, Equally Safe; recognises the specific work that it has carried out to date to improve the justice system for victim-survivors of gender-based violence and the emphasis on ensuring that survivors of sexual violence are responded to sensitively and appropriately by the justice agencies; notes the recent change of policy by the Crown Office and Procurator Fiscal Service (COPFS) on compelling reluctant complainers in rape cases to give evidence and what it sees as the significant opposition that this has attracted from charities that work directly with survivors; recognises the concerns of people who state that this change in policy could jeopardise both the wellbeing of survivors and their access to justice; notes the calls for the Lord Advocate to reconsider this policy and to engage with Rape Crisis Scotland to ensure that COPFS’s approach is informed by the needs and experiences of rape complainers, and further notes the calls for Police Scotland, COPFS and the Scottish Courts and Tribunals Service to work with the Scottish Government and stakeholders to redouble their efforts in addressing the reasons that complainers feel unable to continue with the justice process and for the Scottish Government to ensure that all rape crisis centres in Lothian and across Scotland receive adequate and sustainable funding to facilitate survivor engagement with the criminal justice system and meet their support needs.


Kezia Dugdale (Lothian) (Lab)

I thank colleagues for staying for this debate on what I think is a critical issue.

The motion before us has four key themes. The first recognises that there is broad commitment across parties for the equally safe strategy and that much good work has taken place to improve the justice system. The second theme is that the Crown’s recent change in policy on compelling complainers is a retrograde step that is heavily opposed by campaigners, who believe that it will jeopardise both the wellbeing of survivors and their access to justice.

Thirdly, there is an alternative plan, and it shines a spotlight on the system rather than on the victims of sexual offences. Tonight, I will detail a five-point plan that Rape Crisis Scotland has prepared. Together, we are calling on the Solicitor General for Scotland and the Government to pause their plans to compel witnesses and to implement that plan first.

The final section of the motion addresses the desperate reality that rape crisis services are under immense pressure and need adequate and sustainable funding. I know that many colleagues in the chamber who are due to speak will talk about the equally safe strategy and the funding position of services in their own areas, but I will focus my speech on the problem and the alternative solution.

I am delighted to see the Solicitor General in her place, as I have a huge amount of respect for her and the job that she does. I approach the debate in the full knowledge that she has spent a large part of her professional life working in the field of sexual offences. She is an impressive lawyer and a formidable prosecutor, but I believe that she is wrong on this issue.

The roots of my belief are based in the work of Rape Crisis Scotland, which has for 40 years, in front of politicians and Parliaments and by the sides of victims in our courts, advocated on behalf of survivors of rape. In addition, I have read thoroughly the “Thematic Review of the Investigation and Prosecution of Sexual Crimes” by the Inspectorate of Prosecution in Scotland, which was published by the Scottish Government in November. The report tells us that victims believe that the court process is utterly humiliating. One woman said:

“It was the most degrading experience I have been through”.

Another said:

“Court was absolutely horrendous, it was worse than being raped.”

The first key finding of the report is that there is too little information and support available to victims for them to have any confidence in the system. It goes on to state that communication with victims fell below expected standards in 47 per cent of cases; that the Crown has an unrealistic expectation of victims’ understanding of the system; and that there is too much of an onus on victims to seek updates on their cases, to find support, to deal with shifts and uncertainties in the scheduling of trials and to understand an environment over which they have no control. That is just a handful of the findings in the 85-page report, and those are things that we should be compelled to change.

Rape Crisis Scotland has provided me with a personal testimony from a woman whom they are currently working with. It is a live case, but I have checked the testimony with the Presiding Officers in advance and there is nothing in this statement that could be considered sub judice. Speaking for the first time about her rape, the woman said:

“When it happened, the police were called for me, it was not a decision I made for myself. I ended up speaking to them in my house at 5am then spent the whole next day giving a full statement and having forensics taken.

I was awake for nearly 48 hours and felt in shock as I spoke to them. I hadn’t really had time to process anything or to think about what would happen next but I was called a day later and told the perpetrator had been released on bail and someone would be in touch about a trial.

That was when the reality of the situation hit me and I have thought about the possibility of giving evidence at a trial every day since then.

What will it be like to give evidence? How long will it take? How will I be strong enough to answer questions? How can I cope with being cross-examined by a defence lawyer?

I first met with my Rape Crisis advocacy worker shortly after the attack happened, she told me it would be possible to withdraw from the process if I needed to and I wouldn’t be forced into giving evidence.

When she told me that, I felt a sense of relief that I had some control over the process.

When my advocacy worker called to tell me about the change I immediately panicked and thought ‘this can’t be happening’.

I am faced with the reality that there is a possibility they might force me to give evidence. Living every day with that possibility is terrible. I know it may be unlikely but I cannot help but think of the worst case scenario.

If I was able to go back and have the choice to report, knowing that there was no guarantee I could withdraw if it became too much to cope with, there is a good chance I would make the decision not to report at all.”

That is the testimony of a rape victim dealing with the justice system as it is today. However, if members prefer hard facts to the raw emotion contained in that testimony, they should look again at the inspectorate’s report. It contains an indicted case review of cases that took over 10 months to get to court. It says that, in just under half the cases,

“There was no obvious justification for the length of time taken by the prosecutor to progress the investigation.”

The delays were caused by the disengagement of the victim in just two cases.

I am at a complete loss as to how anyone could read the report and conclude that the answer is to increase the burden on the victim rather than to seek to fix the broken system. The report itself even concludes:

“If the victim is unable to give evidence or their ability is impaired by anxiety, fear, intimidation or a sense of isolation, it is likely to have a significant impact on the outcome of the trial”—

and that is what we will be doing if we compel victims to give evidence.

Here is what we should do instead. First, rape complainers should not have to give evidence in court. Evidence and cross-examination should be pre-recorded. I was delighted to hear Lord Carloway, Scotland’s most senior judge, call for that approach on the radio this morning.

Secondly, a concerted effort must be put into reducing the delays and changes to court dates. Thirdly, the Scottish Government should commission further research into the complainers’ experience of the court process and their reasons for wishing to withdraw. Fourthly, the rules over an individual’s sexual history and character being used in court, which are now over 10 years old, should be independently reviewed and updated. Finally—and crucially—rape crisis services must be properly and sustainably funded. No longer can we ask them to do more with less.

In conclusion, I do not doubt the Crown’s intentions. We all want to see rape conviction rates vastly improved. However, it is the belief of campaigners—and the evidence that is presented shows this—that the policy will likely have the opposite effect. I urge the Government and the Crown to think again.


Rhoda Grant (Highlands and Islands) (Lab)

It is difficult for me to believe that we are having this debate.

We know it is difficult enough for someone to report a rape. We also know that the earlier it is reported the better the chance of collecting evidence. We also know, however, that it can be days, weeks or even years before the survivor feels strong enough to come forward.

People feel shame, and wonder whether they are in some way to blame. They fear the process of providing evidence to the police. They are uncertain whether they will be believed and afraid of having to face an intrusive examination.

Then there is giving evidence in court. What used to be a comfort to a survivor was that they were in control. They could withdraw from the process at any time that they felt unable to cope. They could take it one step at a time. That control was not just a comfort. It was healing. Rape is fundamentally disempowering. It is when someone else takes control of you, and forces you to have sex against your will. That not only hurts your body, but impacts on your confidence and self-esteem. Taking back control is a big part of the healing process.

Yet this policy flies in the face of that. Instead of supporting restoration, it further demeans those already at a low ebb. The rape and sexual abuse service in Highland wrote to me about this, and they said:

“The judicial process can threaten a survivor’s recovery process and indeed reinforce trauma. Survivors therefore need to have confidence in their control over the situation and their ability to withdraw should it prove too difficult.”

Sadly, reports of rapes are low, and they will be lower still because of this policy. If the Crown Office wants to increase prosecutions, it will not do it by victim blaming. Rather, it needs to give survivors reassurance, to treat them with dignity and respect and, indeed, to protect them. More than that, it must protect them from vicious lawyers who stop at nothing to get their clients off. We have seen that all too often, although in any other walk of life such aggressive behaviour and language would not be tolerated.

We have to turn our method of prosecuting rape cases on its head. In order to allow survivors to come forward, we must act, but this is not the way to do it. The rape and sexual abuse service in Highland told me that the time between the reporting of an offence and its prosecution is still far too long. Survivors from the Highlands and Islands need to go to Glasgow, Edinburgh or Aberdeen to access a High Court, which means long journeys and overnight stays away from family and friends. The service told me that survivors have travelled to Glasgow, only to be told that their case has been postponed. Others have been given less than 24 hours’ notice that their case will be heard in Glasgow. They need to book travel, accommodation, time off and, often, childcare, which is almost impossible in that timescale. Would a woman be prosecuted if she was unable to turn up for any of those reasons?

If the Crown Office will not budge on this policy, the Scottish Government must step in and legislate to stop this travesty taking place. It is unbelievable that someone could report that they have been raped and could end up in jail themselves because they are overwhelmed by the assault and by the prosecution process. This policy could lead people to break down or even to take their own lives. We have seen such tragedies in the past as a direct result of rape victims’ treatment in court, yet the law did not change. Who is responsible for that? Who will be prosecuted for the consequential damage or loss of life?

This policy must be scrapped. The Solicitor General must engage with specialists who can support women and she needs to find ways to improve survivors’ experience and to encourage more people to come forward and to stay with the process. We must also have well-funded support services to help survivors through the process. This policy is unacceptable and we need to stop it now.

The Deputy Presiding Officer

I remind all members who wish to speak that they are required to press the request-to-speak button. I am looking at a member who has not pressed the button. I do not want to name them. I call Ruth Maguire, followed by Margaret Mitchell.


Ruth Maguire (Cunninghame South) (SNP)

I thank Kezia Dugdale for bringing this important topic to the chamber. When I first read in the press about this change of policy, I was shocked. Frankly, I thought that it sounded awful.

Sexual violence is a challenging and difficult issue. It is challenging even to talk about, never mind to report and to obtain justice when a person has survived it. I acknowledge that there is a careful balancing act between the needs and views of survivors and the issue of wider public safety—an issue that the state has a duty to uphold.

I and other members who are in the chamber attended the briefing that was given by the Lord Advocate and the Solicitor General, which provided some reassurance. I was left in no doubt that the Solicitor General comes at this matter from a position of extensive experience and that the safety and wellbeing of women are at the forefront of her decision making. I fully appreciate the Crown Office’s desire—and, indeed, duty—to see more rape cases prosecuted and more rapists brought to justice, in the interests of justice, public safety and women’s safety. The Solicitor General made it clear when she spoke in the chamber last week that the focus of the revised policy is not to compel rape complainers to testify but to ensure that the decision and, crucially, the responsibility about whether or not to prosecute lies with the Crown. The public safety case for the Crown on prosecuting a dangerous, violent, repeat offender is obvious. However, it must only ever be in exceptional circumstances that a witness warrant is sought. It is crucial that the survivor’s views, welfare and interest remain at the heart of the Crown’s prosecution policy and, to quote the Crown Office,

“will always be a ... significant factor in the decision”.

Failure to live up to that and demonstrate those words in practice would, quite simply, be unacceptable.

Although I might not agree with the motion that the policy needs to be reconsidered, I do agree that we must all redouble our efforts to address the reasons why survivors so often feel unable to continue with the criminal justice process. Confidence in our justice system must be improved.

In November 2017, the Inspectorate of Prosecution in Scotland published its “Thematic Review of the Investigation and Prosecution of Sexual Crimes.” It noted that, although there has been an increase in the reporting of sexual crimes, a high rate of attrition along with a low conviction rate, particularly for offences of rape and attempted rape, remains concerning. It also noted that secondary victimisation, experienced as a result of the trauma of the criminal justice process, is a feature associated with crimes of sexual violence.

I am glad to hear in particular that there will be on-going work with Rape Crisis Scotland on how the change in policy will work in practice and how victims will be supported. We in Parliament can play a part in that by highlighting the issues, challenging the system, and in making sure that our words and actions do not cause more harm. Victims or survivors of sexual crime must be treated sensitively and appropriately by the justice agencies at all levels, at all times.

The policy might be the right thing to do, but if it does not go hand in hand with ensuring greater support for survivors of sexual violence throughout the criminal justice process, it will not succeed in achieving what we all want: justice.

The Deputy Presiding Officer

I have 11 members still wishing to speak. I am therefore minded to accept a motion without notice, under rule 8.14.3, to extend the debate by up to 30 minutes. I invite Kezia Dugdale to move such a motion.

Motion moved,

That, under Rule 8.14.3, the debate be extended by up to 30 minutes.—[Kezia Dugdale]

Motion agreed to.


Margaret Mitchell (Central Scotland) (Con)

I welcome the opportunity to speak in this debate on support for Rape Crisis centres and prosecutions. I thank Kezia Dugdale for lodging the motion, which begins by welcoming the Scottish Government’s broad commitment to addressing violence against women and girls.

Under the equally safe strategy, significant work has indeed been done in the Parliament, including passing legislation such as the Human Trafficking and Exploitation (Scotland) Act 2015, the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and the Domestic Abuse (Scotland) Act 2018; and setting up a dedicated unit within the Crown Office and Procurator Fiscal Service to deal sensitively and effectively with rape, serious assault and domestic abuse cases. Domestic abuse is now an aggravated offence.

In establishing that dedicated unit, not only is the COPFS finely attuned to the trauma that rape victims experience and the sensitivity that is required in dealing with their cases, but Scotland is acknowledged as leading the way in tackling domestic abuse and violence against women. Furthermore, it is essential that the independence of our COPFS is protected, along with its ability to use prosecutorial discretion to prosecute in the public interest.

Although the COPFS’s ability to issue a witness warrant to compel witnesses to give evidence is a long-standing capability, it is the first time that the policy as it applies to rape cases has been put into formal COPFS documentation.

As Ruth Maguire stated, the COPFS has emphasised that the focus of the revised policy is not on compelling rape complainers to testify, but on ensuring that the burden of prosecutorial decision-making lies with the COPFS, and on ensuring that decisions are made after the most careful consideration of all the relevant circumstances.

There is, of course, a balance to be struck between the interests of the complainer, who is after all a member of the public, and the wider public interest. Equally, the reasons why complainers do not come forward require further examination and research, and we need to ensure that the necessary support is in place to give victims the confidence to give evidence. Organisations such as Rape Crisis Scotland are ideally placed to offer their experience of helping and supporting victims, but it and other charities who offer support must be adequately resourced.

Unfortunately, the experience of the Lanarkshire Rape Crisis Centre is not encouraging. Although the Scottish Government has provided funding over the past few years, it has been

“without increase, increment or consideration for the amount and type of work being carried out with survivors of sexual violence across the two local authority areas of North and South Lanarkshire.”

Consequently, the staff are uncertain about their future employment and service users are uncertain whether they will be able to access support in the long term. That is particularly concerning, given that some cases can take up to two years to progress through the criminal justice system.

I therefore welcome the commitment of the Lord Advocate and the Solicitor General to continue working closely with support agencies, including Rape Crisis Scotland, to resolve those vexing issues.


Daniel Johnson (Edinburgh Southern) (Lab)

I rise to my feet with a considerable amount of trepidation. I am mindful, as I speak, that I do not have experience in two critical ways. I have not been a victim of rape; I have not endured that most horrific of crimes. I can only imagine what it must be like not only to suffer the disempowerment that Rhoda Grant described very well, but then to have to go through that again in a court of law. I can only imagine how traumatising that must be; how difficult it must be to face and what a person must do to in order bring themselves to go through that—to relive those experiences just to ensure that justice is served. Nor am I a lawyer, so I have not had to prosecute such cases. I am mindful of the difficulties that the authorities face, as they seek to prosecute.

With that in mind, I am supportive of and fully aligned with my colleague Kezia Dugdale’s earlier comments. I have huge concerns about the policy both in terms of how it has been framed and in principle, so I support Kezia Dugdale’s calls for the policy to be paused and for implementation of her five-step plan.

Before I set out why, I will say clearly where I am in absolute lockstep with what both the law officers are trying to achieve and what everyone in the chamber is trying to achieve.

There have to be three clear priorities when it comes to dealing with cases of rape. First, we have to ensure that more victims come forward. That seems to be happening anyway, but we need to go much further; we need to give victims—the survivors—confidence about coming forward, so that we can ensure that people get access to justice and that the people who perpetrate these vile acts are brought to justice.

We must also ensure that giving evidence becomes a better experience for victims of rape. I think that Lord Carloway’s intervention today is hugely useful, and that the steps in Kezia Dugdale’s plan are hugely important.

Above all else, when victims come forward—when survivors come forward—in addition to improvements that we make to their experience, we need ultimately to make sure that we improve the conviction rate. It must be a priority that when cases are brought, we see successful convictions.

I will turn to why I have issues with the policy as it has been articulated so far. First, I have huge concerns about when reluctance turns to refusal. We have heard the issues that have been set out by the law officers; actions must be given up when witnesses are reluctant to give evidence. We have heard that there would never be circumstances in which a victim would be brought to court in the back of police car.

However, what I have yet to hear is how that is framed—an articulation of when a person goes from simply being reluctant to refusing. The policy has to set out clearly how that would be understood, how it would be assessed, and whether individuals who are reluctant are genuinely giving consent, because they have to consent to giving evidence in court. That has to be a fundamental principle if we are not going to simply disempower individuals further—but where is it set out in the policy?

Secondly, there is the classic utilitarian argument about the public interest versus the individual interest. I understand the overarching desire to ensure that we protect the wider public while balancing the interests of the individual against that, but we have to do so with huge sensitivity and caution. It is a fundamental principle, not just of the courts of justice, but of democracy, that wider interests cannot simply trump the rights of the individual. There is a balance to be struck, but there needs to be articulation of how that balance is understood and how it is to be struck.

Fundamentally, the issue is about trust versus policy. It is vital that any policy has trust and that individuals who come forward trust the system and the process. I do not understand how we can expect individuals to trust the system if they feel that they will be compelled to give evidence when they no longer wish to do so. Ultimately, the issue is about witnesses coming forward. If they perceive that they will be compelled to give evidence when they no longer wish to do so, I cannot see how that will be anything other than a detriment to the principles that I set out at the beginning of my speech about ensuring that more people come forward and that they have a better experience of the justice system.

The Deputy Presiding Officer

I am sorry, but you must conclude.

Daniel Johnson

I will conclude, then—

The Deputy Presiding Officer

No. You really must conclude, and I will tell you why if you sit down, please, Mr Johnson.

We cannot extend the meeting further so, if everybody goes over their time by one minute, I will not get everyone in to speak. I have extended the debate by 30 minutes, and that is it. I realise that it is a very serious debate, and I am reluctant to do it, but I must ask members to keep to four minutes, or I will not get everybody in. That is a fact. I apologise to Mr Johnson, but that is just the way it is.


John Finnie (Highlands and Islands) (Green)

You are quite right, Presiding Officer, that this is a very important debate, and it is on a very emotional subject. It is some time since my police days, but I can say that there has been an outstanding change and improvement in attitude and response from the service in relation to the issue. I mentioned earlier this afternoon the confidence in Police Scotland about handling many issues to do not just with sexual crime but with domestic violence. The link with the prosecution service—the Crown Office and Procurator Fiscal Service—and the more humane handling of cases are key to that.

Part of the weakness is in our courts. Like others, I was heartened to hear Lord Carloway speak this morning about the opportunities that may exist for recording testimony and cross-examination. My colleague Margaret Mitchell mentioned legislation that has been dealt with in Parliament in recent times. During the passage of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 and the Domestic Abuse (Scotland) Act 2018 I was privileged to hear the private testimony of individuals, and I have to say that it was harrowing. The state’s way of helping an individual should not inflict more grief on them.

Terminology is very important. The public interest is absolutely fundamental. I attended the recent briefing by the Lord Advocate and the Solicitor General, who made compelling arguments. There is an obligation on us to act collectively and in the public interest. Of course, key to that is the role of the complainer. That is the correct term—the person is the complainer. The term “survivor” is appropriate, but in the legal context the term is “complainer”. The wellbeing of the complainer is key, because we want good-quality evidence, which we would not get were we to compel people. However, there is a very fine balance to be struck, as a couple of members have said.

As I understand it, victims of sexual abuse and rape are already treated uniquely by being given a say that is not necessarily given to victims of assault or housebreaking. It is important that there is already recognition of the significance of the issue.

The question of disengagement and the humane response to it was touched on in the briefing that I attended. Disengagement can happen for a number of reasons. Kezia Dugdale mentioned a report, but there is a lot of other information on the issue. All the requests are reasonable, but a crucial one that I think everyone would go along with is for more research, in order that we can understand what is involved.

If I have one disappointment, it is that although this is a well-attended members’ business debate, it would have been good if there had been a minister here who has responsibility for dishing out money, because the support mechanisms that are put in place are key. It might be that there are other pressing engagements.

Today, I met Rape Crisis Scotland. Having met Ms Brindley, and having met the Solicitor General and the Lord Advocate last week, I do not think that they are poles apart. However, I say as gently as possible that the situation is a bit of a public relations disaster. We all want to increase the number of successful sexual crime prosecutions. The key to that is the quality of the evidence; there are opportunities that will come with Lord Carloway’s proposals.

I am sure that the Lord Advocate will reflect on the points that have been made. I ask that there be further engagement with Rape Crisis Scotland, because I imagine that members are as one on where we should be going.


Tavish Scott (Shetland Islands) (LD)

I endorse and agree with Kezia Dugdale’s opening speech and the five points that she powerfully made. There are not many times that a sensitive, tricky, difficult but intensely robust issue is introduced in that way. The speech was very powerful and important.

I acknowledge the fact that the Solicitor General and the Lord Advocate are here. Kezia Dugdale was right about the Solicitor General’s track record on the matter. Parliament should not in any way ignore that, but I am sure that our law officers will want to reflect on, and consider carefully how to react to, what Parliament is saying, and the power of the argument that has been presented to us by many constituents and the organisations that have been named.

I entirely associate myself with John Finnie’s and Daniel Johnson’s remarks about being just members. John Finnie reflected on his previous professional life, but there are not many more harrowing things one experiences as a member of Parliament than meeting people who have been subjected—that is the word, at times—to the pressure of the process that victims are asked to go through. We cannot experience that and yet not believe that considerable change is needed. Kezia Dugdale set out five strong arguments for that.

I also associate myself with Lord Carloway’s observations from this morning. Some of the observations that he made were very powerful, particularly the point about the length of time that can be involved. A case that I have dealt with at home in Shetland concerns that point. Those of us who represent far-flung parts of the country recognise Rhoda Grant’s geographical observation about how far people have to travel and what that does. The issue in the case that I referred to was the length of time for which a person had to deal mentally, never mind physically, with the trauma and ordeals that she had been through. That makes me think that many of the proposals that Lord Carloway set out this morning are right, that they need to be implemented and that that should happen as a matter of urgency.

I am incredibly grateful to Shetland Rape Crisis and Shetland Women’s Aid for their candour in telling me in no uncertain terms things that I should be aware of as a legislator and as a representative. Shetland does not need to lose solicitors who have specialist rape and sexual assault abilities. That is one of the dangers that we face. The two organisations were clear about that. The firm that we might lose from Shetland is, to be frank, the only one providing legal-aid assistance to women who are in such circumstances, and we will lose it because of legal aid fees.

John Finnie was right about ministers. Michael Matheson was here earlier, for which I am grateful. However, I hope that the Government hears us loud and clear. There are no two ways about it: legal aid fees mean the difference between having a firm in Lerwick providing a service for women who have been subjected to rape or sexual assault and not having one. If we do not have one, the points that Rhoda Grant made about geography become even worse. I hope that the Government, if not the law officers, will reflect on that.

From the perspective of a different location in Scotland, Margaret Mitchell reflected on why the services of rape crisis organisations are so important. In 2017-18, Shetland Rape Crisis supported 52 survivors of sexual violence between the ages of 13 and 70, including a number of men and members of the lesbian, gay, bisexual and transgender community, along with women and girls.

Shetland Women’s Aid made two points to me. First, women do not have confidence in the system, so non-reporting needs to become reporting, investigation and prosecution. Secondly, the organisation asked me to think what the trauma would do to my body and brain. It told me that, naturally, the body wants to block it out, go away and disappear. For that reason, and many others, we need to do a whole lot more.


Jackie Baillie (Dumbarton) (Lab)

I congratulate Kezia Dugdale on securing time for this debate and on her powerful contribution this evening. It is good to see cross-party unity in this chamber on tackling the issue of violence against women and addressing the flaws in our justice system with regard to how it deals with reported cases. I also welcome the Government’s commitment to the issue through the equally safe strategy, because the physical and mental wellbeing of rape complainers should, without exception, be our number 1 priority. However, for too many rape complainers, their experience of the justice system itself is traumatic, and the insensitivity with which some survivors of rape, domestic abuse and sexual violence have been dealt with is, quite simply, inexcusable.

Up to 8 March this year, rape complainers could not be compelled to give evidence in court. Of course, that has now changed, and the Crown Office can compel reluctant rape complainers to give evidence through warrant or arrest. I accept that it might not wish to do that, but it can do so. The personal testimonies of women who have battled in the justice system to have the despicable things that they have gone through recognised is beyond heartbreaking, and Rape Crisis Scotland has issued warnings of the consequences that could result from the change in policy. I note my disappointment that the offer from Rape Crisis Scotland to work with the Crown Office on the issue, following the consultation meeting on 30 August 2017, was not taken up.

Rape victims already find it difficult enough to present the evidence for the case, and many find the hostility of the criminal justice process to be a key factor in their reluctance to come forward. As Kezia Dugdale has already said—it is worth repeating—one victim found her experience of the justice system to be

“worse than the rape itself.”

That surely cannot be tolerated any longer.

Whether we like it or not, we live in a society in which rape complainers are not naturally believed. Their character comes under intense scrutiny, their story is pulled apart—usually far more than is the case in relation to a non-sexual crime—and their willingness to continue the fight is often lost among the negativity of the system. Studies that have been carried out by Rape Crisis Scotland have found that, with the new policy, there is likely to be an increase in women falsely admitting to having made up their testimonies, because they see that as the only way out of their distressing ordeal.

It is clear that, under the new policy, Rape Crisis Scotland will not be able to reassure clients that they will not be prosecuted for not appearing in court—something that it had previously found crucial to keeping women in the system. The fact that the process is so traumatic that women feel compelled to deny their own rape should make us all feel utterly ashamed.

An additional issue within the criminal justice process with regard to how it tackles rape complainers is the lack of consistency. Rape complainers are often left for long periods before their cases are brought to court, and there is a distinct lack of communication surrounding the locations and timings of hearings, both of which are often subject to a number of changes. That simply adds anxiety to what is already a traumatic experience.

Rape complainers deserve better. They have been given a voice by organisations such as Rape Crisis Scotland, but far more needs to be done. I suggest that, instead of pursuing the flawed approach that has been outlined, the Crown Office considers the five asks of Rape Crisis Scotland, which I commend. For current and future rape complainers, we must ensure that the justice system provides closure to trauma, not the continuation of it. This policy must be scrapped.


Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I commend Kezia Dugdale on bringing forward this motion, which I know reflects her personal conviction and political commitment. I would like to focus my contribution on the final section of the motion, which calls for adequate funding for rape crisis centres.

More than five months ago, I raised the plight of Fife Rape and Sexual Assault Centre directly with the First Minister. Three weeks before Christmas, the organisation was unequivocal in its assertion that the 2.5 per cent funding cut from Fife’s health and social care partnership was to blame for the closure of its waiting list. The closure of that list was not a decision that the organisation took lightly. The First Minister was equally unequivocal in her response. She said that such services

“are absolutely vital in protecting the most vulnerable women and children in our country.”—[Official Report, 7 December 2017; c 16.]

I hope that all of us, no matter what political disagreements we might have across the chamber, can come together and support the work that organisations such as the Fife Rape and Sexual Assault Centre do for the benefit of Scotland.

Exactly a month ago, I was delighted to hear that FRASAC had reopened its waiting lists, and I got in touch with Jan Swan, the centre manager, who is based in Kirkcaldy. The waiting lists had been reopened, so surely Fife’s health and social care partnership had seen the light. Alas, it had not. Despite the additional funding from the Government, which is helping to support FRASAC’s advocacy service, local cuts to the core funding that is provided by the partnership continue to affect service provision.

We are not talking about huge sums of money—2.5 per cent of FRASAC’s core funds equates to just £977. Rape Crisis Scotland’s research reveals what that cut means for victims of rape who live in Fife, the third largest local authority in the country. On Monday 8 October, 83 people in Fife were waiting to access a support service, which was the third largest number in the country. However, the wait time for support does not match up, because rape victims in Fife can expect to wait up to 10 months for support, which is the longest waiting time in Scotland. It is completely unacceptable.

However, numbers mask personal stories, which tell of suffering and pain. We should consider the eightfold increase between 2014 and 2018 in the number of those presenting to the service who are aged between 13 and 15, or the fact that since 2014 the total number of cases that have been recorded each year by the service has increased from 213 to 280. The upward trajectory in the number of women who present to services across the country needs attention. We need to give such women encouragement and financial support, so that we foster a culture whereby women feel able to report rape or sexual assault when it occurs, and not because the system compels them to do so. It has to be about a cultural shift.

I appreciate that the Solicitor General has responded to questions on the Crown Office changes on compelling reluctant complainers to give evidence previously in Parliament. However, Sandy Brindley of Rape Crisis Scotland said:

“Our view, having supported survivors the length and breadth of Scotland”

for years,

“is that the route to improving justice for rape survivors is not by forcing them to engage with a broken system, but to fix the issues inherent within the system.”

Scotland has one of the highest rates of imprisonment for women in northern Europe. I remain unconvinced that the Crown’s actions will tackle that inequality—rather, I fear that compelling reluctant complainers to give evidence in rape cases will compound a culture in Scotland’s legal system that too often makes female victims feel like criminals. I understand the rationale behind the Crown’s actions. None of us would agree that a 5 per cent conviction rate is evidence of a system that works. However, pushing women who have already been through horrendous trauma into giving evidence is surely not the answer.

I hope that the Crown Office and Procurator Fiscal Service will now think again and listen to the views of women who have been through the system, because, in the Inspectorate of Prosecution in Scotland’s thematic review, which has been mentioned, we were told:

“On opening the letter the first thing I saw was the name of the person who attacked me in black bold letters. It was very distressing.”

We were also told:

“In our court system, you are totally humiliated. It was the most degrading experience I have been through.”

Jackie Baillie is right; this is worth repeating:

“Court was absolutely horrendous, it was worse than being raped”.

Let us listen to those women’s voices, let us listen to the experts at Rape Crisis Scotland and let us ensure that Scotland’s legal system works to support all victims of rape and sexual assault.


Maurice Corry (West Scotland) (Con)

I thank Kezia Dugdale for bringing forward today’s debate on a very important subject. I want to take this opportunity to note the work of the rape crisis centres that work with people in my region, although the centres are not located in my region specifically. I have heard the amazing work that they are doing to support rape victims in the west of Scotland.

Among others, the Glasgow and Clyde rape crisis centre, which does outreach work in East Dunbartonshire and West Dunbartonshire, the Argyll and Bute rape crisis centre, which is based in Dunoon, and the Star Centre, which is located in Kilmarnock, are doing amazing work in the west of Scotland. I am sure that they have the gratitude of everyone in the chamber for their work.

The question of compelling reluctant complainers in rape cases to give evidence in courts is a very difficult topic, and I have had to spend a lot of time thinking about it in the run-up to this evening’s debate. I think that we can all agree that the area is one in which we need to strike the right balance. We have come up against the difficult task of attempting to juggle the needs of rape victims and their welfare; the needs of prosecutors, who do their best to protect the public from serious sexual offenders; and the needs of the courts to have enough information and evidence to find someone guilty beyond reasonable doubt.

The balance that the Government and the Crown Office and Procurator Fiscal Service have sought needs to ensure that rape victims are not put off from coming forward, and that they feel supported. The reason for doing that is obvious: the latest official statistics show that just 39 per cent of those taken to court were found guilty, which is down from 49 per cent in the previous year and the lowest conviction rate since 2008-09, when it was 37 per cent. That drop came despite the number of in-court proceedings last year rising by 13 per cent.

We all know that this is a massive issue that we need to address, but I fear that going about it by compelling witnesses to appear and give evidence against their wishes will not help the overall situation but make it worse, because it will reduce the number of women coming forward to the police in the first place to tell them that they have been raped. In an interview with the BBC, Sandy Brindley of Rape Crisis Scotland said:

“One of the key reassurances that we are currently able to give people is that if they don’t feel able to proceed, that their wishes will be respected, but this will be gone.”

I am concerned that the unintended consequence of the policy will be that women will not seek help from the police or charities because they will be concerned about being forced to give evidence in court. I know that that will concern the Government as well. Kezia Dugdale’s motion speaks admirably of the need to reconsider the current policy, which I think would be the most appropriate course of action. When we have charities such as Rape Crisis Scotland telling the Government that the Crown Office is going about something in the wrong way, it is important that the Government listens to that advice.

We need to create an environment in which it is easier for women to come forward and tell their own story in court. By supporting them in that process before, during and after the hearings, we can ensure that the conviction rate goes up, proper justice is delivered and victims receive the care and support that they deserve.


Alex Cole-Hamilton (Edinburgh Western) (LD)

I add my thanks and congratulations to my friend and colleague Kez Dugdale for bringing this hugely important motion before us this evening.

Until very recently, public discourse around rape and sexual assault was shrouded in false assumptions and stigma. Much of that still exists and endures. I am ashamed to say that I carried some of those assumptions myself, but I am very glad to say that joining the task force on violence against women, as I did some three years before I was elected to the Scottish Parliament, helped me to understand the profound and dehumanising impact that rape and sexual assault can have on not just women but men, although the impact is predominantly on women. It was in that group that I was proud to play some role in shaping the equally safe strategy, which has been referenced a number of times in the debate.

My work in that group was underpinned by my membership of the task force on child sexual exploitation. I make that point because many of the themes that we discussed in that task force were apposite to some of the solution around changing the culture, by which I mean a change to our understanding of safe relationships, consent and respect. We need to germinate that understanding and grow it in our children and young people so that they understand the environment of relationships and what healthy relationships look like.

Our response to rape has to be a whole-system response, but I am glad that Kez Dugdale has focused her motion on our criminal justice system’s response. It is very easy for us to use members’ business debates as a forum in which to bemoan a situation and to wail, gnash teeth and cry “Foul!” about the many things that are wrong. However, Kez Dugdale’s five-point plan represents a very powerful index of positive action that we and our criminal justice colleagues can take forward to make things better. Like others, I welcome the response this morning of the Lord President of the Court of Session, Lord Carloway—I think that it was partly in response to the debate happening—with regard to making it easier for people to come forward and give evidence outside of court. I would certainly lend my support to that proposal.

I will touch on something that Daniel Johnson articulated very well, which is the dichotomy between the utilitarian need to have more rape cases brought to justice and the needs of the individual complainant. That issue came up in our Equalities and Human Rights Committee inquiry into human rights, in that we have competing human rights: we have the metanarrative of human rights in our society with regard to rape not continuing and the rights of the individual to be protected from being retraumatised. That is why I am compelled to say that the advice and policies of the Crown Office and Procurator Fiscal Service in compelling reluctant complainers, which come from the best of intentions, will have profound and unintended human consequences for the individual.

It is not hard to understand how the Crown Office got to that position. It is scandalous that some 1,800 rapes have been reported in the past year, yet only 270 have been brought to prosecution. That is a terrible statistic. However, part of the reason is not people’s reluctance to come forward but their lack of confidence in the system. The fact that those 270 cases resulted in only 125 convictions would undermine anybody’s confidence in the system. In addition—my friend Tavish Scott made this point very well, I think—people have a colossal amount of time to wait before they have their day in court and that moment to tell their story, and at many points along that journey they are being retraumatised.

I thank Kez Dugdale once again for bringing this important debate to the Parliament tonight, and I assure her of our continuing support on the matter. Her five-point plan represents a really positive and progressive step in taking the debate forward.


Claire Baker (Mid Scotland and Fife) (Lab)

I, too, thank Kezia Dugdale for bringing this important debate to the Parliament. I think that there is a strong recognition in the chamber this evening that we must do all that we can to dramatically improve the situation that victims of rape are experiencing, from the support that is provided to them and the public perception and understanding of the crime to the way in which our criminal justice system deals with these heinous crimes.

It is hugely frustrating that the conviction rate for rape, including cases that have the required corroboration, remains significantly lower than the rates for other crimes. Research is being undertaken on jury decision making, and it is important that that includes the role of the jury in rape cases in order to help to inform any future reforms.

I recognise the commitment of the Crown Office and the Solicitor General, who has spent her career fighting for justice for victims of rape and sexual assault, but the recent change in policy is very concerning. Rape Crisis Scotland remains concerned that it will lead to victims retracting their complaint and that the policy does not recognise that the criminal justice process itself is causing the problem.

I attended the Crown Office briefing in Parliament the other week, and what struck me as the Solicitor General talked about the experience of supporting a reluctant rape complainer was the degree of experience, expertise, empathy, judgment and commitment that is required to convince a victim who does not want to present evidence in court to continue with the trial. In the chamber last week, the Solicitor General said that she had not come across a case where the policy would be used in the past 10 years. A situation where the victim would be arrested or even imprisoned seems so unlikely and so against everything that the Crown Office wants to achieve that it appears unnecessary, unless it is to act as a threat or a warning to the victim, which is not justifiable as a way to treat victims of rape.

As Jenny Gilruth described, Fife Rape And Sexual Assault Centre had to close its waiting list in December after being overwhelmed by rising demand for its service. In Fife, 893 sexual crimes were reported last year, but we know that the real figure will be higher. The Rape and Sexual Abuse Centre Perth and Kinross contacted me yesterday, and between April 2017 and March 2018 its support service saw an 8 per cent increase in demand. As it becomes increasingly challenging to secure funding, the centre has had to cut a support post, and its waiting times are increasing.

I raised the situation in Fife with Angela Constance, and in a reply to me she said that “Equally Safe—A Delivery Plan for Scotland’s Strategy to Prevent Violence Against Women and Girls” commits to a review of funding and commissioning. That review must fully recognise the need to address waiting times, funding pressures and staffing difficulties.

The manager of the Fife centre, Jan Swan, spoke to me about the difficulty that the centre has with recruiting support workers, volunteers and fundraisers. The field is not an easy one to work in. Fife has well-supported charities with many volunteers working in food banks, with children and family groups and with older people, but it is more challenging for rape crisis centres to recruit volunteers for what can be difficult work. We need to think about how we can support their efforts.

However, what we really need to think about is how we can stop the crime, which is only on the increase. Last year, I visited the Perth rape crisis centre’s 10-year exhibition, which was an exhibition to make people angry, emotional and uplifted. There were messages of hope and recovery, but also a clear demonstration of the injustice of sexual assault and rape. The centre does outreach work in local high schools, challenging young people’s ideas and encouraging them to interrogate their views on sex. It is speaking to the next generation to try to change their prejudices and behaviour. That work is not core funded, but it is essential if we are to see change.

One of the most affecting displays in the exhibition was a rail of women’s clothes, representing the clothes that women were wearing when they were raped. There was a flannel nightie, a pair of jeans and a wedding dress, and clothes that reflected women of all ages and all social classes. The crime reaches all parts of our society. It is one that we must confront and one for which victims need to have justice.


Kenneth Gibson (Cunninghame North) (SNP)

I, too, congratulate Kezia Dugdale on securing time to bring this vital issue to the chamber.

The issue is complex and emotive. The Crown Office and Procurator Fiscal Service’s recent change of policy on compelling reluctant victims in rape cases has clearly been met with opposition and concern from charities, individuals and MSPs alike.

As members will be aware, on 25 April, my colleague Christina McKelvie sought an assurance from the Solicitor General for Scotland that victims would not face potential prosecution for ignoring a witness warrant if one was sought by the Crown. However, the Solicitor General was unable to give that assurance. I understand that that would and could happen only in the most exceptional cases and that any decision would be taken only after careful assessment and consideration of all the circumstances.

The Crown states that the victim’s interests, welfare and views are at the heart of prosecution policy in relation to victims who are reluctant to complain, and that the policy underlines the importance of exploring the reasons for such reluctance. However, it is vital that we in no way alienate, discourage or traumatise women with the bravery to come forward and reveal what has happened to them.

In 2016-17, 1,755 rapes and 123 attempted rapes were reported to Police Scotland. However, those figures are undoubtedly the tip of the iceberg. It is understandable that many women feel scared and unwilling to report an attack. There is a host of reasons for that. It is therefore vital that women who report rape or sexual assault and intend to proceed through the criminal justice process are supported; they must feel that their case will be dealt with appropriately and with understanding.

The criminal justice system itself is a major reason why many victims choose not to report rape. For those who choose to do so, lengthy delays in cases going to court and a lack of meaningful communication often lead to those women feeling that they can no longer cope, and they lose heart and have to withdraw. It is inherently wrong that people who have already been through such a traumatic experience and have shown the resolution and resilience to report rape may face the possibility of being presented with a warrant. Such a policy could mean that such women would be punished by the very system that is supposed to protect them.

Figures for many crimes in Scotland are going down, but the number of reported sexual offences continues to rise. Reported sexual offences have been on a long-term upward trend since 1974 and have increased every year since 2008-09. Sexual crimes are now at their highest level since 1971, which is the first year for which figures for comparable crime groups are available. That, of course, is due in large part to the fact that, increasingly and rightly, women feel better able to report the crime and feel supported, should they do so, in taking it forward through the justice system. Consequently, we have a responsibility to ensure that women feel safe, that they have confidence that their case will be dealt with sensitively should they wish to report what has happened to them, and that they should not fear prosecution should they later wish to withdraw.

The Scottish Government’s equally safe strategy clearly sets out that violence against women and girls in any way, shape or form has no place in Scotland. For over a decade, the Scottish Government has helped to form a justice system for survivors of gender-based violence that ensures that they are responded to appropriately and with sensitivity and understanding. I welcome Lord Carloway’s deliberations this morning. We must continue that approach in order to build a safe and successful Scotland for everyone.

I understand that the Crown is committed to continuing to work closely with Rape Crisis Scotland and other agencies to improve the experience of victims. I welcome that on-going work with Rape Crisis Scotland and hope that the Crown takes on board the important discussions and points that have been made across the chamber in order to ensure that every woman in Scotland feels supported, particularly by the very system that is designed to protect them, should the worst ever come to pass.


Monica Lennon (Central Scotland) (Lab)

I, too, thank Kezia Dugdale for taking urgent action to secure cross-party support to allow this important debate to go ahead. I pay tribute to her tireless work in giving a voice to women everywhere—especially to survivors of sexual violence—and associate myself with the remarks that acknowledged the Solicitor General’s accomplishments. The debate is not an easy one to take part in, but it is timely. It is taking place against the background of a wider social movement around the #MeToo and I believe her campaigns.

Women’s experience of sexual harassment and sexual violence is being spoken about more than ever before—from Hollywood to Holyrood and in every school, workplace and community in between. It feels as though, as a society, we are taking tentative steps towards a culture change, and I am optimistic about the pace of the progress that we are making. Therefore, it was with anger and disbelief that I reacted to the news that the Crown Office and Procurator Fiscal Service had made a policy shift towards compelling so-called reluctant complainers of sexual violence to give evidence.

I, too, attended the briefing about the policy change that was delivered by the Lord Advocate and the Solicitor General. None of us doubts the commitment to put dangerous perpetrators of sexual violence behind bars in order to protect women and to deliver justice, but few reported rape cases make it to prosecution and conviction. I understand the desire to see justice done and to protect women from harm but, as colleagues have said, in doing so we cannot neglect the wishes and the wellbeing of survivors of sexual violence.

We know that sexual crimes are underreported. A main barrier to rape survivors accessing justice is the justice process itself, which is often lengthy and insensitive to rape survivors’ feelings. We have heard, and we know, that rape survivors worry that they will not be believed. They worry that they will somehow be blamed, such as for what they are wearing—we heard a powerful message from Claire Baker about women’s clothing: it does not matter what a person is wearing, because it is never the victim’s fault—and they worry that they will be compelled to relay the most intimate details about their lives in court. The system is brutal. We see one high-profile example after another, in the United Kingdom and beyond, of rape survivors being subjected to a hostile court environment and perpetrators being acquitted or given a sentence that does not seem to reflect the seriousness of the crime.

I listened very carefully to the Solicitor General a few weeks ago. I wanted to be persuaded, and she was very persuasive. She talked about how women can feel empowered by giving evidence, and she said that engaging and re-engaging women is approached in an emotionally intelligent way. I consider that people in the legal profession and in the judiciary believe that that is how they are approaching the issue, but we must listen to Rape Crisis Scotland and to the voices of the women who are not being listened to. I am concerned that we have reached a disconnect, because Rape Crisis Scotland, which wanted to engage and be part of a consultation, considers that that has not happened.

I am the last member to speak in the open debate and I will not go over time. However, before closing, I have to say that we must press “pause”. Rape Crisis Scotland and Kezia Dugdale have developed a five-point plan. The confidence of rape survivors is at an all-time low, and we must press “pause” in order to get the policy right.

The Deputy Presiding Officer

I call the Solicitor General to close the debate. You have up to seven minutes, or thereabouts.


The Solicitor General for Scotland (Alison Di Rollo)

I, too, thank Kezia Dugdale for bringing the matter to the chamber and for giving me an opportunity, which I consider to be very important, to clarify what the policy is and what it is not. I say again—I said this in the question that I answered last week; I also said it in the briefing—that it is not a policy to compel rape victims to come to court.

I add that it is also not a policy of the Scottish Government, but a policy of the Lord Advocate, as head of the independent system of prosecution in Scotland, and at whose side I stand four-square. For as long as I have breath in my body, and as a law officer, I will continue to do all that I can to uphold the rights of victims of rape and to pursue justice against those who perpetrate that crime.

The change in prosecution policy is not about compelling victims of rape to give evidence; it is about being clear and honest with complainers, and those who support them, that the decision on whether a case is to be prosecuted is for the Crown Office and Procurator Fiscal Service. That is and has to be the case—not because I want it or I think that it is a good idea, but because law and ethics tell me that it is necessary.

It is then about making sure and making clear that the views, interests, welfare and wellbeing of the victim are at the heart of decision making by the Crown, whether the person is being supported by Rape Crisis or not, because, of course, not all the victims and witnesses with whom we deal have advocacy workers.

We deal with a wide range of victims, who have a wide range of issues that might lead to reluctance. If a witness or victim becomes reluctant because they cannot cope, because they have mental health issues, or because giving evidence will harm their wellbeing, that is of course massively important.

As, I think, Maurice Corry said, there is a balancing exercise that we have to undertake in the public interest. It involves, on one hand, bringing perpetrators to justice and protecting women—me, the women in the chamber, our daughters, our sisters, our mothers—from future victimisation and, on the other, considering the impact of giving evidence on the victim. That balancing exercise is one that we need to undertake independently in the public interest. It is the right thing to do, and the policy is all about doing the right thing.

Before the policy change, complainers of all kinds, whether or not they were supported by advocacy workers, in effect had a veto on the prosecution of serious sexual offenders. If they stated that they were reluctant, that was an end of the matter, and it was treated as decisive. Often, given that understanding, the reasons for the complainer’s reluctance were not explored. In that context, we had a situation in which very, very difficult decisions had to be made.

Kezia Dugdale

I am listening very carefully to what the Solicitor General has to say. I invite her to respond to the reality of the testimony that I have put forward, which is that for women who have been raped, knowing in advance that they could be compelled might mean that they do not report at all, so she will have no such cases to prosecute.

The Solicitor General

We have discussed that with Rape Crisis and will work with it and Police Scotland, because in dealing with victims and encouraging them to come forward and supporting them in the process, it is absolutely essential that they do not feel threatened by a risk of compulsion or imprisonment. It would be wholly inappropriate if victims felt threatened in that way, and we do not want there to be any chilling effect on the willingness of victims to come forward.

The fact of the matter is that responsibility for decisions on prosecution lies with the Crown and for all other cases—murder, serious organised crime, child cases—the end option involves the power, in appropriate cases, to compel a witness and to seek a warrant and enforce it. I repeat that that will happen in the most exceptional and rare circumstances.

Daniel Johnson rose—

The Solicitor General

The work that we are doing with Rape Crisis is about saying to victims, “Although it is our decision to prosecute, nevertheless we will engage with you. We want to hear from you and know why you are reluctant.” We are saying that we want to take steps to re-engage with and support victims—or to take the decision not to carry on with the prosecution, which is a decision that I have taken in the past few weeks since 12 March. That approach will continue.

Does Daniel Johnson want to intervene?

The Deputy Presiding Officer

He does. He has been on his feet for a wee while. Will you take the intervention, Solicitor General?

The Solicitor General


Daniel Johnson

Although the Solicitor General says that the policy is not about compelling witnesses, she also says that the court reserves the right to do so. Those are exactly the words that have a chilling effect on victims who are considering coming forward. Will she consider giving witnesses and victims the right to refuse to give evidence? I understand that she wants to explore the possibility of continuing a case when a person expresses reluctance, but surely she agrees that a victim of rape must ultimately have the right to refuse to give evidence.

The Solicitor General

No, I cannot agree with that. The difficulty with it is legal and ethical, and comes down to positive obligations and convention rights to which we are subject. We have a responsibility to take positive action to protect the rights of those who are subjected to rape and serious sexual violence.

John Finnie

Will the Solicitor General take an intervention on that point?

The Solicitor General

I am running out of time.

The Deputy Presiding Officer

I can give you a little extra time. We must conclude by 6.20, but I think that it is important to let the debate run. However, I appreciate that response from the Solicitor General.

John Finnie

I am grateful to the Solicitor General for taking my intervention. How would she view the quality of evidence that would be obtained in such circumstances, with that level of compulsion?

The Solicitor General

I cannot envisage a situation in which we would compel a witness whose evidence would be of such quality that there would be no prospect of a conviction and, indeed, no public interest in requiring her to come to court.

Mr Finnie is right to identify the quality of evidence as an issue that we will take into account in looking at all the factors. However, if we have a serious serial sexual offender who is a risk to others, has previous convictions and might get out on parole if we do not prosecute, we have to balance the risk of not proceeding against that of doing so.

Johann Lamont (Glasgow) (Lab)

All my adult life, I have worked with organisations such as Rape Crisis, and the strongest message from them has been that the system makes things worse. To assist people who are not so expert in the law, can the Solicitor General explain to me how the message that we have low conviction rates because of the victim, and not the system, will help?

The Solicitor General

That is not the message that we have given or that we intend, and it is not the message that our friends and supporters at Rape Crisis and the police will give.

I entirely agree that part of the solution is to improve the system. We are working very hard with our colleagues to address the parts of the process that lead to reluctance and cause pressures for victims. I, too, welcome Lord Carloway’s ambitious statement this morning on pre-recording of evidence, which would be a worthy and very useful goal.

However, in the meantime, we have to work with the system that we have. As prosecutors, we have to protect women and children in our society, and we have to take the right decisions—for the right reasons—on whether to require complainers to give evidence. It is not a policy of compelling complainers but of re-taking the decision-making power in relation to rape and serious sexual offences. As far as the European convention on human rights and our positive obligations are concerned, it should not—and cannot—be a decision for the complainer. That is all.

Jackie Baillie

I wonder whether the Solicitor General would take a brief intervention.

The Deputy Presiding Officer

It is up to you, Solicitor General.

The Solicitor General


Jackie Baillie

I have no experience in the law, so it would be helpful if she could clarify what has changed between the period before 12 March—when she could not compel witnesses—and now. Have previous Solicitors General or Lords Advocate been operating the law inappropriately?

The Deputy Presiding Officer

Although that is a very important question, I am afraid that we must conclude at 6.20 on the button, so may we have your concluding remarks on that, please, Solicitor General?

The Solicitor General

The date of 12 March was when we got the policy together, having consulted widely with Rape Crisis, other agencies, senior prosecutors and so on. What had happened, and what we took into account, were developments in the European Court of Human Rights, which clearly found that where a state and its prosecutors did not take action in relation to offenders who were at risk of causing further harm, and lack of engagement by the complainer was the reason, the state had failed in its positive obligations. The man in that case later went on to kill the complainer’s mother and to rape the complainer. That is the legal context, from a European dimension.

I will say that this is a policy and a practice of our colleagues south of the border and of many other European jurisdictions. It is about doing the right thing and about supporting complainers. It is about supporting victims. The last thing we want is for a message to go out that chills their willingness to come forward.

I would be very happy to continue this conversation. I am sorry that some members were not able to come to the briefing, although that in itself was too short for MSPs.

Thank you.

The Deputy Presiding Officer

I thank all members and the Solicitor General. It is such an important matter, and members might consider speaking to their business managers about another debate.

Meeting closed at 18:20.