Anger as prosecutors ignore law on rape accused's past crimes

Published on Monday 22 October 2007 01:04

PROSECUTORS are ignoring laws requiring them to disclose in court details of previous sex crimes committed by men accused of rape, The Scotsman has learned.

Under legislation that came into force five years ago, the Crown must reveal an accused's "relevant" previous convictions when defence lawyers are granted permission to attack an alleged victim's character by raising questions about her previous sexual partners.

The judge is then expected to pass the information to the jury before they reach a verdict. This rule - unique to Scotland - was designed to make it less likely that an accused's lawyers would interrogate a witness about her sexual history during a trial.

But according to new research by Glasgow and Edinburgh universities, the Crown has failed to disclose relevant previous convictions to the court in the handful of cases where the legislation should have applied.

In two of the three cases, the jury was not told about an accused's previous rape conviction. In the other, the accused had a conviction for having sex with a child. In two cases, the accused was acquitted.

Campaigners described the situation as "incredible".

Last night, Sandy Brindley, the national co-ordinator for Rape Crisis Scotland, said: "We are bewildered as to why the Crown would not introduce previous relevant convictions in these circumstances.

"It seems incredible that evidence about, for example, how many sexual partners a woman has had is brought up in court, but the fact that an accused has a previous conviction for rape is not."

She went on: "The whole issue of sexual history and character evidence, including the provisions relating to the introduction of previous convictions, needs to be urgently reviewed."

Scotland has one of the world's lowest conviction rates for rape - about 5 per cent of reported attacks - and weaknesses in the prosecution of such cases have been blamed for contributing to this.

Professor Michele Burman, one of the report's authors, said the failures to disclose previous convictions might have been an "oversight". She said it "might be that prosecutors are not au fait with the legislation".

The Crown Office said: "While it is not possible to discuss individual cases, it is important that victims have confidence to report rape in the knowledge that they will receive all necessary support, and that prosecutors have a duty to act, at all times, in the public interest."

Campaigners have repeatedly condemned Scotland's poor record on prosecutions for serious sexual crimes such as rape.

Out of 975 serious sex crimes reported to the police last year, only 38 - or one in 25 - culminated in guilty verdicts; that is a conviction rate of 3.9 per cent.

That compares with a 5 per cent conviction rate in 2005.

The number of reported rape cases has soared by 300 per cent over the past three decades.

In 1997-98, there were 596 rapes reported, while in 2004-5 the number was 900.

Rape Crisis Scotland said the figures demonstrated "an urgent need to look at how we respond to rape". Earlier this year, the use of independent lawyers to support victims of rape was touted as a possible answer.

There have also been concerns about lenient sentences. Last month, Alan Mullen, from Ayrshire, admitted raping a 36-year-old woman while he was out of prison on licence after serving part of a four-year sentence for rape. Experts said the case raised serious concerns about predatory sex offenders being released on licence.

OTHER CONTROVERSIAL CASES

THE failure of prosecutors to inform courts about the previous convictions of men accused of rape is the latest in a series of Crown "non-disclosure" controversies.

The Crown Office failed to pass crucial evidence in the Lockerbie case to defence lawyers acting for Abdelbaset Ali Mohmed al-Megrahi, the Libyan convicted of the bombing.

A top secret document containing information about the bomb timer said to have been used to down Pan Am 103 was never shown to the defence.

Neither was material crucial to the credibility of the prosecution's main witness, Maltese shopkeeper Tony Gauci.

Non-disclosure is expected to form a central plank of a fresh appeal. The same issue will also feature heavily in the appeal of convicted murderer Nat Fraser, set to begin next month.

Stuart Gair, who spent 17 years protesting his innocence over a knife murder, was last year cleared by appeal judges who attacked a failure to disclose witness statements to his lawyers.

A decision by the prosecution not to lead DNA evidence against Angus Sinclair was blamed by many for the collapse of the World's End double murder trial last month. Gerry Considine, head of Scotland's biggest association of court lawyers, said a "significant number" of cases were collapsing because of non-disclosure.