CAMPAIGNERS for women’s rights fear that a landmark case going through the Scottish courts could lead to a reduction in the number of successful prosecutions for rape and other sex attacks.
In the case to be heard by Appeal Court judges later this year, advocates will argue that a jury should be told if a rape complainer has made a previous accusation which they later admitted was false. If they are successful it could set a precedent for all rape cases in Scotland.
At present, previous false complaints are only raised in court if they are part of a pattern of behaviour – if there have been more than one – and point to an underlying condition. However, an appeal in the case of “CJM”, as he is referred to in the case, against Her Majesty’s Advocate argues that even one false complaint is “relevant to an issue at the trial, namely credibility [of the witness]” and should be admissible as evidence.
CJM was convicted last year in Inverness of four charges relating to sexual acts with children aged between five and 13. The crimes took place between 1990 and 1998.
However, one of the victims, who was referred to as “ALW”, had made a separate allegation against him in 2006. She said that she and a friend had been abducted and driven to a wooded area, where he demanded they perform sex acts on him and each other.
However, she later admitted fabricating that story and was charged with wasting police time.
Defence lawyers for CJM wanted to use this evidence in the trial, but the judge ruled against them. The case has been referred to the Appeal Court and will be heard by five judges on 6 and 7 November.
Campaign group Rape Crisis Scotland warned that any move that allows juries to know if women have made a previous, false complaint, would skew the odds of a successful prosecution against victims.
It argues that some women change their mind about whether they want to make a complaint and believe the only way then of stopping the case is to say the allegation is not true, even if it is.
A ruling in favour of CJM could also be potentially very damaging for women who are vulnerable – because of drugs, alcohol or mental health issues – or those who are in abusive relationships who change their mind about a complaint against their partner.
Sandy Brindley, of Rape Crisis Scotland, said: “This is highly prejudicial evidence. I don’t think it’s necessarily straightforward how you define a false allegation.
“Some might withdraw [their allegation] because the police have not followed it through. Some women feel the only way to withdraw is to say it did not happen, but that does not mean it did not.”
Brindley added that if the Appeal Court found in favour of CJM, it could limit access to justice for many women.
“Women will face an extremely limited chance of justice because this would be so prejudicial to juries,” Brindley said. “This would be a very significant judgment.
“What we know is that juries are already very reluctant to convict. We do think this would make juries even more reluctant to convict.”
Scotland did have very low conviction rates – at one time the lowest in Europe at 3 per cent. That changed, particularly after the Sexual Offences (Scotland) Act came into force at the end of 2010, widening the definition, and also including attacks on men.
But in the same year, a Supreme Court ruling found that Scottish prosecutors could no longer rely on statements made to police by a suspect without a lawyer present, making securing rape convictions harder again.
However, the law on disclosing previous complaints is not designed to make securing convictions easier.
Some defence advocates argue that disclosure of a single false accusation should be allowed. John Scott, QC, said: “The decision in each case should always be [about] has the jury been presented with all relevant information, especially when the credibility of the complainer is usually what it is all about.
“The fact that, on a previous occasion, the complainer has admitted to police that she fabricated an extremely serious allegation, even if it involves someone other than the accused, my guess is a jury or a member of the public would think that’s something that should be disclosed.”
Scott added: “People will see the relevance of this and wonder why is the law working to keep it out.
“Should it not be up to the jury to decide if that impacts on the credibility in the current case?”
Another advocate added: “The law, in my opinion, is too restrictive. Right now it should be more open to the defence leading that evidence without showing a course of conduct. Even if [the false allegation] is ten years ago, I still think it’s relevant.”