Leader: Principle at stake in change to rape case procedure
The initiative is the first step towards realising Lord Carloway’s vision of a system where victims of rape and sexual violence would not have to appear in court.
There is little doubt that more must be done to improve the conviction rate for rape in Scotland. In 2016-17, 1,878 cases of rape or attempted rape were reported to police. Just 98 of those cases, about 5 per cent of the total, resulted in a conviction. This is woefully low. Often cases never make it to court.
Gathering key evidence quickly and ensuring the victims statements are captured is important. And the new process will be helpful.
But more controversially, Lord Carloway suggests that defence cross-examination should take place outside of court and then, at a later date, shown to the jury. This would spare complainants from having to attend court at all.
Ensuring justice for victims is a cornerstone of all legal frameworks, but so too is justice for the accused. A defendant must be presumed innocent and must have the right to robustly test the evidence against them. If that does not happen in the court room can if be said to be fair? What if all the evidence is not yet available at the time of the first cross-examination? Does that mean the questioning must happen again? Would this not cause more trauma for a victim?
It is important that Scotland looks to increase the rate of convictions for rape. If we don’t succeed we risk more serial offenders walking free looking for their next victim.
But as we chase an increase in the conviction rate we must be careful what we are potentially losing. Changing the principle of cross-examination in court undermines the balance of the system in Scotland – the right of victims must be balanced against the rights of the defendant, no matter what the evidence.