An interesting edition of BBC Newsnicht last night, talking about rape, the requirement in Scots Law that charges are corroborated, and a potential challenge in the European Court of Human Rights. This followed on from a Scotland on Sunday exclusive with Elish Angiolini, the outgoing Lord Advocate, this weekend. She has "warned that alleged rape victims, whose cases are not taken to court because the demanding requirement of Scots law for corroboration has not been met, could appeal under the European Convention on Human Rights." Unfortunately, neither the Scotland on Sunday nor the BBC really substantiated the basis for these dark hints about the compatibility of Scots Law with fundamental rights. That said, the relative obscurity of what Scotland has to do under European human rights law has one very positive aspect. Instead of glumly and resentfully legislating by rule, and thinking about the bare minimum, it allows us to ask ourselves the more fundamental question: does Scotland's criminal law effectively protect people within its jurisdiction from all forms of rape and sexual abuse?
To recap, in England, there is no requirement for corroboration, but juries can only convict an accused person of rape on a vote of 10-2. In Scotland, sufficiency of evidence rules mean that the essential elements of Scottish rape charges must be proved by corroborated evidence, but the jury can return a majority guilty verdict on a vote of 8-7. As a result, we know that a large number of cases are marked no proceedings by Scottish prosecutors - insufficient corroboration - and are never examined in court. Of those rape and attempted rape cases which are tried, Scottish Government statistics estimate that 46% result in a conviction, with 32% in verdicts of not guilty and 19% acquitted on a finding of not proven. According to the 2009 Stern Review into how rape complaints are handled by public authorities in England and Wales, it was clear that:
"... the figure for convictions of people of all ages charged with rape (as the term is normally used in relation to crime) is 58 per cent. The confusion arises from mixing up the conviction rate with the process of attrition. "Attrition" is the process by which a number of the cases of rape initially reported do not proceed, perhaps because the complainant decides not to take the case any further, there is not enough evidence to prosecute, or the case is taken to court and the suspect is acquitted. The attrition rate figure has been the cause of considerable concern, and attempts to reduce it are behind many of the reforms that have been introduced in recent years."
There is a great deal which might be said on this topic. I'll delimit today's contribution to the narrower issue of the relevant jurisprudence of the European Court of Human Rights and its potential implications for Scots law.
Corroboration, Scotland & European human rights law...
The BBC report darkly alluded to the possibility that Scots Law might be challenged in the European Court of Human Rights, but didn't really substantiate the point. I assume the Lord Advocate has the case of M.C. v. Bulgaria in mind. Decided in 2003, the judgment concerned the "predominant practice" of Bulgarian authorities to prosecute "rape perpetrators only in the presence of evidence of significant physical resistance". In evidential terms, the case involved "two conflicting versions of the events and little “direct” evidence". At that time, the applicant was 14 years and 10 months old. She said she had been raped, while the man she accused, aged 21, said that the sex had been consensual. There was a second incident a day later. The applicant alleged that a second young man, and friend to the first accused, had also raped her. He too claimed that the sex had been consensual. The investigation by the Bulgarian authorities took complex turns which needn't particularly detain us here. It sufficieth to say that prosecutors decided not to take forward criminal proceedings against the two young men. The young woman made an application to the European Court in Strasbourg, arguing that Bulgaria had failed to protect her rights under the Convention. The judgment is a complex combination of the particular circumstances in Bulgaria and the erga omnes human rights standards, to be observed by all Member States, including Scotland. Outlining its general approach, the European Court held that:
"States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution."
Article 3 provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, while Article 8 § 1 reads that “Everyone has the right to respect for his private ... life”. Describing the positive obligations arising from these Articles, the Court noted that:
"Positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State's margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection" [Para 150]
The vital section for Scots Law, it seems to me, is set out in paragraph  of the MC v. Bulgaria judgment:
"... the Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy. In accordance with contemporary standards and trends in that area, the member States' positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim."
Ask yourself this then. Does the "rigid" Scottish approach to corroboration risk "leaving certain types of rape unpunished"? As the English experience shows, simply dispensing with the corroboration requirements will not necessarily mean that overall conviction rates, from complaint to court, significantly increase. Indeed, dispensing with the requirement may well decrease the rate (if not the absolute number) of convictions actually achieved. In so doing, it is likely to increase the number of victims put through the exceedingly difficult experience of giving evidence, being cross-examined, and then experiencing adverse verdicts. I cannot see, however, why it should be generally regarded as preferable to anyone except malefactors, for potential cases never to be heard at all. A jury verdict which does not convict one's assailant may be painful, but the rebuff of a prosecutor's letter must surely be regarded as even more unsatisfactory. Reasonable doubt puts its high evidential hurdle before prosecuting authorities, as it ought to. Allegations of rape where persons are known to one another, where the sex is admitted, where only consent is in issue, are always going to be appallingly difficult to resolve.
However, where corroboration is not mandatory, such difficult cases can still be put before a jury, the credibility of witnesses can be scrutinised and the admitted facts of the case can be assessed. The effective consequence of Scottish corroboration rules is to exclude a great number of cases from any chance of a criminal remedy, without examination. Does the difference matter? For example, English qualified jury majorities mean that individuals will be acquitted, if an insufficient number of them can be convinced of the defendant's guilt. Corroboration has a similar limiting effect, albeit employing a different - and arguably starker - evidential mechanism. Our question, therefore, is whether the gatewarden of corroboration, preventing cases from being heard at all, renders ineffective the protection of the rights of Scots who experience sexual violations and precisely "risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy". I would be cautious about suggesting that this would be the legal view taken by the European Court. However, I increasingly share Paul McBride QC's opinion that, as a matter of political concern, the corroboration sufficiency hurdle in cases of rape and other sexual offences is manifestly unsatisfactory. Others disagree, and disagree for laudable reasons, on the basis of important values I wouldn't dissent from recognising. However, I would ask those who are sure that corroboration should be maintained, who are satisfied that so many cases which can be examined in court in England never cross the portals of Scottish public justice, how much longer can we close our eyes to the real nature and character of so many of these sexual offences?