Kenny MacAskill: Sturgeon delayed legal move to boost rape convictions

Latest published statistics on rape and attempted rape are truly shameful and the numbers are stark. The percentage of guilty verdicts in cases making it to court declined from 49 to 39 per cent, the lowest conviction rate in eight years.

There were only 98 convictions for rape and attempted rape out of 1,878 reports

It isn’t just in the crime of rape where there’s been a fall but in sexual offences more generally, where the conviction rate is down by 11 per cent to the lowest for five years.

The real horror though was pointed out by Rape Crisis Scotland which pointed out there had been 1,878 reports of rape or attempted rape, yet only 98 convictions. That figure’s truly staggering. It’s also no doubt why the organisation stated the law of corroboration needs to be looked at once again.

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All this at a time when consciousness of sexual abuse has never been higher because of the Harvey Weinstein affair or, sadly, allegation about foreign aid workers. To be going backwards therefore when so much effort has gone into tackling it over recent years is truly awful.

In the last few weeks, measures ranging from new laws tackling psychological abuse to adverts targeted at young men have all been taken. The Scottish Parliament even rather smugly gave itself a standing ovation on the new legislation. However, mental torment is even harder to spot than physical torture. If the current laws aren’t working as well as they should, the new ones will face an even harder challenge.

That’s why the routine requirement for corroboration in Scots law has to go. It’s a deeply divisive issue in the Scottish legal and political world but long overdue for removal. I know better than most as I brought in legislation for its removal. It was hugely politically controversial and I must take responsibility for failing to build a consensus. But, the main issue that remained of safeguards following its removal has been addressed by a respected High Court Judge, working with a committee of the great and the good.

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Call for legal change amid falling rape convictions in Scotland

Sadly, though it’s been kicked into the political long grass and is to await research into juries in Scotland. Now, I’ve no doubt that will be worthy and interesting. Top legal brains are involved and I’d have expected no less. But, my experience of juries is that they can be weird and wonderful but they are a separate issue from corroboration.

As the Rape Crisis stats showed, it’s not so much the decisions that juries are reaching that’s the problem, but getting access to a jury at all. For the routine requirement for corroboration is denying access to justice for tens of thousands and that was made clear many years ago by research carried out by the man who’s now our most senior Judge.

Cases that should have and would have gone to trial elsewhere weren’t brought in Scotland. That doesn’t mean that a conviction would automatically follow. That would be for the court or jury and they may not be satisfied that there’s guilt at all or just that it’s not been proven beyond reasonable doubt.

But, at the moment as the Rape Crisis stats show, cases are just not getting to court. Justice is being denied. Convictions would still be difficult and attitudes would still need to be challenged but it would be the removal of a massive hurdle.

It’s not just to the victims of rape or sexual offences who are denied access to justice. Other vulnerable groups suffer equally when a crime is committed behind closed doors or in the absence of witnesses.

Children suffer and that’s been shown by the inability to pursue some prosecutions in Scotland that are routinely taken south of the border. Moreover, as our society ages and crime changes, the elderly have been suffering through scams, online or off. Whether through dementia or just old age, they’ve been victims but have little chance of justice due to corroboration requirements. It was for that reason that some charities spoke out when the debate was last ongoing.

So just what is corroboration? It’s largely mythological. I recall asking two of Scotland’s foremost law professors to give me a one or two-page definition of what it was. They answered that they couldn’t agree upon it! It’s evolved and is no longer two sources for every aspect, as so many exceptions have been created to try and allow justice to be done. It’s a mess.

Apparently it stems from canonical law, yet it’s badly hurting the citizens of a modern nation. No other western legal system uses it and despite all these years of it being available, no other country has sought to replicate it. Yet some people view it as totemic to Scotland’s distinctive legal system and important for the protection of the innocent from wrongful conviction. But that’s utter tosh.

I recall a senior judge expressing surprise that as an SNP Minister I should be supporting such a change to something that’s Scottish. My response was that just because it was Scottish didn’t mean I had to support it and certainly not when it was manifestly leading to injustice. Likewise it is absurd for commentators to suggest it’s saved the innocent from conviction. Miscarriages of justice can occur in every jurisdiction, it’s why there have to be safeguards but in Scotland it’s denying access to justice.

So it has to go and it needn’t wait on jury research. Scotland’s most senior judge, Lord Carloway, was the architect of its removal and the political difficulties over safeguards were resolved by Lord Bonomy, a former Scottish Supreme Court judge.

Ironically, the delay has been caused by the First Minister, who has otherwise improved the rights of women, but cast aside the proposed legislation to remove corroboration.

So both she and Parliament owe it to victims of rape and indeed all crimes to allow access to justice. Many brave women forsook anonymity to support previous efforts only to be badly let down. MSPs applauding themselves for new laws bring little cheer to those who have already suffered and won’t drown out the anguished cries of those routinely denied access to justice because of archaic rules.