22 March 2011

Does Scotland "effectively protect its citizens from all forms of rape & sexual abuse"?

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 [166] 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?


  1. I think you posit a sneaky false dichotomy at the end there, LPW. Some points:-

    1. Why is this issue discussed in the context of rape? Murder is a worse crime. Only in Victorian melodrama does the victim prefer "death to dishonour". Put brutally, that is how the crime often works: the victim, when actually given those appalling alternatives, accepts rape in preference to the actual or constructive violence the perpetrator offers. And while I can see the particular evidential difficulties a rape case presents, so does murder. At least in a rape case the victim may often speak for herself. So why change the rules for rape but not for murder?

    2. You argue that the victim may prefer her day in court. She may equally prefer, if prosecutors don't think the evidence is overwhelming, to avoid the whole circus. By making this argument, moreover, you are sailing close to suggesting that the decision about prosecutions should be taken out of the hands of the prosecuting authorities and put into those of the victim, a position we have rejected in Scotland for a long time now. Well, fair enough, but why make this argument only in the context of rape?

    3. The accused, on the other hand, would certainly wish to avoid the court experience if at all possible. Why should he not be offered this courtesy in a rape trial, as opposed to one for all other offences? Until there is a verdict against him, he is innocent in the eyes of the law and as entitled to the law's protections as anyone else. Sometimes he really will be innocent, of course. If one permits more evidentially-challenged cases to go to court the inevitable consequence of that change is not that the number of rapes will decrease, but that the number of people hauled before the courts for an appalling crime, of which they are in fact innocent, will increase. These are victims too.

    4. I suspect more of us don't commit rape than do. The possibility of being the victim of a charge of which one is innocent is therefore at least one which in theory affects more people than the possibility that those who are victims of rape may see their attacker brought to justice through a change in the law. The presumption that the generality of us are not a very criminal bunch lies behind the law's protections for all accused, of which I suppose you and I are both proud.

    5. I recall a particularly offensive display set up in the university library by some feminists in about 1980, quoting Susan Brownmiller to the effect that "rape is a nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear". I was astonished that some of those defending that view were people I thought I knew well, and with whom I existed in a state of mutual liking; yet essentially they were accusing me of rape. It is possible that some people do actually believe this calumny. I am unable to shake off the suspicion that among those who promote the idea that evidential changes should be made to the law of rape in particular are people who hold this view. You will never be able to satisfy them, and you shouldn't try.

    6. The Scots law of corroboration is often set up as some kind of daft anomaly. In fact the principle "unus testis nullus testis" is one widespread in countries with a normal legal system. The widespread nature of the principle has two consequences. The first is, that if our Lord Advocate (!) publicly suggests that the requirement for corroboration might undermine the human rights of rape victims, and someone tries it on as a result at the ECtHR, it is not just Scotland which will be inconvenienced. This is the Iain Gray approach to the comity of nations. The other is that, given that the principle of corroboration is a widespread one, is it not at least as likely that taking it away might attract the unfavourable attention of that court?

    7. Do you really want Scottish courts to offer those caught in its toils less protection (in this respect, anyway) than the Inquisition?

  2. Am Firinn,

    Apologies. Blogger seems to have innovated to include an overzealous spam filter, that seems to find suspicious any fulsome comment. It is an automated process, so you can be reassured that I didn't consign your questions to the ether!

  3. The sin of fulsomeness is, alas, one I find difficult to resist...

  4. It is strange, but for some reason I've never been able to think of the negative connotations which are sometimes suggested by the word "fulsome". Needless to say, as a fulsome fellow myself, no criticism was intended!

    I'll have to return to your substantial points later. However, it is probably worth emphasising at the outset that I wouldn't be opposed to thinking about other mechanisms of legal caution, if we did away with corroboration here.

  5. In the complexities of human interactions, how do you corroborate an abusive act, acted out between two persons?

  6. Crinkly,

    The short answer is, in many cases, you simply can't.

    It has been some time since I looked into my books of criminal evidence. However, there are a few important points here. Firstly, the corroborative evidence does not have to be directly incriminating of itself, merely consisted with the guilt of the accused (I think the case may be Fox v. HMA but that is very much off the top of my head). We might think up various examples of the sort of evidence which might do - subsequently damaged garments, overheard racket, the subsequent witnessed distress of the complainer. The Scottish Law Commission discussed a number of scenarios and their corroboration implications in the course of their paper on rape and sexual offences of 2006. I probably should have given it a more thorough thumb through before composing for foregoing - but it contains a nice summary of the contentions on either side of the argument on whether corroboration should be maintained.

  7. Lalland - I commented with a lengthy submission on the similarities of the determinism v free will debates that have plagued philosophers since the concept of abstract thought was first considered and related it to the problems the law has in dispensing justice in rape cases.

    And having casually clicked on the 'publish' button have subsequently found its become sacrificed to cyberspace?

    Not that it particularly matters and I've neither the will nor wit to try and reproduce it - but isn't it a bugger that blogspot doesn't allow the capability to cut and paste.

  8. I apologise for the loss of your comment, Crinkly. It is a lamentable and occasional problem with blogger which is rather beyond my wit to solve. A remark of mine got guzzled down by the digital gremlins only yesterday. Such is my luck, it always seems to be the long and committed comments that get spirited away. I regret the loss all the more so, since your subject sounds one of significant interest.

    In future, I suggest you adopt my strategy of copying proposed text before hitting the submission key, thereby hopefully saving your prose if anything goes awry in its transmission.

  9. No apology warranted - the fault probably all mine as a proponent of the mechanics of haste and honest instance.

    Anyway enough; it was pure theory having never been victim or perpetrated rape in the manner under discussion; having only experienced the(per)versions adopted by career jobs-worths.