Scots rape laws face European challenge

Published on Friday 18 March 2011 16:14

RAPE victims whose cases are not taken on by prosecutors could appeal under European rules and radically change Scots law, according to Scotland's top lawyer.

Lord Advocate Elish Angiolini warned that the Scottish legal system may once again be found to be incompatible with the European Convention on Human Rights, following the successful Peter Cadder appeal last year.

The Cadder ruling at the Supreme Court in London over the rights of suspects to legal representation jeopardised almost 3,500 cases, with nearly 900 collapsing.

But a senior QC predicted those figures would seem "piffling" compared with the upheaval that would follow a successful appeal by a wronged rape victim.

Just 92 out of 882 reported rapes were proceeded against in 2009/10. However, a successful appeal could see an end to the need for corroboration - two pieces of evidence proving the guilt of the defendant - a key pillar of the Scottish legal system.

Angiolini, who steps down in May, said: "I think corroboration is an important protection and desirable. But our rights are such that we exist in a situation where we are in an ecology of different rights which balance each other.

"If you remove one aspect that's been relied upon, and you can no longer effectively proceed because of the obstacle of corroboration - which no other jurisdiction has - it would not surprise me to find a victim of such a crime might challenge the system and that requirement of corroboration.

"If you have a case that is not proceeding because of the requirement of corroboration, where in England and Wales it might proceed to a trial, or even elsewhere in Europe, the court may look at the whole system.

"The state has an obligation to have a standard in place. Given the changes that have taken place to that ecology of rights, there could well be a challenge from victims."

However, Angiolini stopped short of saying whether or not she wanted corroboration laws changed.

"I think corroboration prevents miscarriage of justice and is an important protection," she said.

The Cadder judgment, in October, meant suspects must be offered legal representation after being arrested, before they are interviewed by police.

Because it came from the Supreme Court, which judges whether Scots law is compliant with European law, it set a precedent for all future cases.The same court could hear an appeal on rape cases.

The impact on Scots law is currently being assessed by Lord Carloway, who will report to the Scottish Government on changes needed in the wake of the Cadder ruling.

The judgment has meant prosecutors are less likely to have admissions made by suspects in police interviews as one of the two pieces of evidence needed for corroboration - something which has been particularly damaging in rape cases, which are rarely witnessed.

An appeal by rape victims would be one way of readjusting the balance.

John Scott QC, a member of the Lord Carloway review group, said: "It would be such a radical move, it would make Cadder look piffling by comparison. The number of prosecutions would go through the roof. There needs to be a system in place to make sure you don't proceed in every case."

He added: "I think this Lord Advocate will forever be strongly associated with the prosecution of sex crimes. She has made some radical and welcome changes in the way the Crown Office deals with cases.

"Whether she would want to see the end of corroboration, I don't know. Whether she would want to see the end of corroboration in sex cases - it would not surprise me.

"She has shown a great empathy and support for people who have been victims of sex crimes. If she's thinking of a legacy, then an increase in the conviction rate for sex offences would no doubt be welcomed."

The Lord Advocate, who is the first woman, solicitor and career prosecutor fiscal to hold the top job, may feel she has already paved the way for such a legacy.

New legislation passed in the Scottish Parliament puts greater responsibility on the perpetrator when it comes to ensuring sex is consensual. It is hoped the laws will lead to successful prosecutions of offenders which would not have been possible before.

Angiolini said: "The definition now is free agreement. So if you've been battered by your partner and that's a constant feature, say every Friday night, and if you refuse intercourse then the likely thing is you are going to be kicked again, is that consent to intercourse?

"This new law gives the perpertrator responsibility to understand that there is free agreement. The new definition will give us the ability to look at whether that consent is real. Then it will be for the courts to determine."