News Release 14 June 2006

Landmark Review of Investigation and Prosecution of Rape reported to Scottish Parliament (The full text of the statement follows this News Release)

The Solicitor General for Scotland, Elish Angiolini QC, today informed the Scottish Parliament of the findings of a landmark
review of the investigation and prosecution of rape and serious sexual offences. The review, instructed by the Solicitor General and published today, makes 50 recommendations, which have been accepted in full by the Lord Advocate, Lord Boyd Of Duncansby.

Mrs Angiolini said:

"Rape is one of the most vile crimes which can be committed in society and is accordingly treated with the same degree of seriousness in the Scottish criminal justice system as murder. The damage caused to individual victims, their families and to wider society is enormous, and there is a responsibility on us all to respond to offences of sexual violence with determination, and sensitivity to its victims.

"This report provides a comprehensive and frank study of the complex and difficult issues involved in prosecuting rape, and explains the realities of the type of rape cases which are dealt with in Scotland."

Lord Boyd of Duncansby said:

"This review is a significant landmark in Scotland's response to serious sexual crime, and I commend the work of the advisory group. We are indebted to those members who shared with us their considerable knowledge of the experience of victims in this area. The implementation of these recommendations will enable victims across Scotland to have increased confidence in the quality of investigation and prosecution of this serious category of crime."

Sandy Brindley, National Coordinator for Rape Crisis Scotland, said:

"We welcome the publication of the report from the Crown Office review. The report makes a number of significant and constructive recommendations, which we hope will make a real difference for those who have experienced sexual violence. We are particularly pleased to see within the report the emphasis placed on the Crown taking a case building approach to these offences: the conviction rate for rape in particular is extremely poor and there is a clear need for concerted action to improve confidence in the justice response to rape.

"Equally important is the recognition of the role played by societal attitudes towards rape. For legislative and procedural change to make a real difference, significant steps must also be taken to address attitudes within society which blame women for the violence inflicted upon us."

The recommendations include:

· The development of comprehensive training and guidance for prosecutors, and the introduction of a process of certification for legal staff working in this difficult area.

· Changes to prosecution practice and policy, including a presumption in favour of prosecution where there is sufficient credible and reliable evidence to prosecute. Only where there are insurmountable weaknesses in the case, which mean that there is no reasonable prospect of conviction, should a decision be made to take no proceedings.

· Strengthening communication with victims

· Communication between the police and prosecutors at the earliest stage is to be strengthened to allow the Procurator Fiscal to provide advice and direction and to influence evidence-gathering.

· It is recommended that until the law is reconsidered by this Parliament, the charge of sodomy involving male or transgender victims and children should always be prosecuted in the High Court.

Alison McInnes

Communications

0131 247 2674

Full text of Statement to Parliament

Parliamentary Statement by Solicitor General - 14 June 2006

Review of the Investigation & Prosecution of Sexual Offences in Scotland

Introduction

Members are aware that in October 2004 I instructed a comprehensive review of the investigation and prosecution of rape and serious sexual offences by the Crown Office and Procurator Fiscal Service. The Report of the Review was recently submitted to the Lord Advocate who has now considered the Report and its 50 recommendations, which he has accepted in full. The full report is published today.

Rape is one of the most vile crimes which can be committed in society and is accordingly treated with the same degree of seriousness in the Scottish criminal justice system as murder. The damage caused to individual victims, their families and to wider society is enormous, and there is a responsibility on us all to respond to offences of sexual violence with determination, and sensitivity to its victims.

The report of the Review explains the reality of allegations of rape in Scotland, and the almost unique difficulties attached to the proof of such cases. It sets out a clear way forward on how we can best address any weaknesses in the process which may arise from the investigation and prosecution of such cases.

I would exhort those with an interest in these issues to read the entire Report, which, I believe, provides the single most comprehensive and frank study ever in Scotland of the complex and difficult issues involved.

It is important to recognise that the policy and practices of the prosecution service cannot tackle all of the diverse issues affecting the conviction rate in isolation. While the recommendations of the report signal a profound change in our approach to these cases, the Report also explores the influence of such factors as the legal framework and evidential requirements which operate in Scotland, society's level of understanding about the true nature of rape; and misplaced perceptions about how victims of these crimes ought to present, and to react - all of which have a part to play in the attrition rate of these cases.

The Report and its recommendations contain no glossy gimmicks. On the contrary, this is a Report and series of recommendations which are practical, pragmatic and intended to effect real change and improvement in the Scottish context. It addresses the issues which we see as presenting barriers to effective, fair and sensitive investigation and prosecution.

The Review Process

The Review has also provided the prosecution service in Scotland with an unprecedented opportunity to appraise critically its approach to this difficult area of crime in consultation with victims, witnesses, those supporting the survivors of rape and other sexual offences, the COPFS staff who investigate these cases, those who prosecute them in Court, and key professional colleagues from across the criminal justice system.

The members of our Advisory group gave freely of their time and shared their experience and expertise, all of which has greatly informed the review and we are indebted to them.

Crucially, the Review has been outward looking and examined the challenges facing our prosecution colleagues in other jurisdictions in responding to this area of crime. It is evident that the same issues that prompted this review also pose considerable challenges to prosecutors elsewhere in the world.

While it is asserted extensively and repeatedly that in Scotland we have one of the worst conviction rates for rape - the reality is that we have the narrowest definition of rape of any of the jurisdictions we examined; so strictly defined as to exclude a vast raft of sexual offences which are included in definitions of rape elsewhere in the world. We noted in the Review that in jurisdictions where the ambit of the definition of rape was wide there was, unsurprisingly, often a higher conviction rate.

The Review also looked at the way in which different legal systems and cultures have responded to the difficulties we all face. We examined the key benefits they offer, and considered their application in the Scottish context.

I am very grateful to our prosecution colleagues across the world, to the International Association of Prosecutors, Eurojust and the American Prosecutors' Research Institute for their considerable assistance in our work.

Latterly, victim organizations represented on the Advisory Group assisted the Review Team in convening meetings with victims of rape and sexual offences who were prepared to discuss their first hand experiences. I cannot overstate how significant and informative the insight they provided has been to the review process, directly influencing the recommendations of the Review.

Findings and Recommendations

The Report makes 50 detailed recommendations, and these can be broadly grouped as follows:

• The development of comprehensive training and guidance for prosecutors, introducing a process of certification to be achieved before staff will be permitted to work in this difficult and sensitive area. I will say a little more about this later
• A range of revisals to prosecution practice and policy are recommended: including a presumption in favour of prosecution where there is sufficient credible and reliable evidence to prosecute. Only where there are insurmountable weaknesses in the case, which mean that there is no reasonable prospect of conviction, should a decision be made to take no proceedings.
• Accelerated precognition (working within the stringent time limits which apply in custody cases) should be undertaken where there exist from the outset substantial concerns about the quality, as opposed to sufficiency, of the evidence.
• Rape victims should have early and co-ordinated access to medical support and advice as well as counselling and practical support.
• It is recommended that there be a re-statement of the forensic, analytical approach which must underpin investigation of these cases by COPFS staff.

The interviewing process (known as precognition) has at times not been sufficiently robust in exploring with the victim any weaknesses and contradictions in the evidence, a climate which we believe has developed (with the best of intentions) to make the victim feel believed and comfortable with the process. But this may have in fact inhibited and undermined investigations with the result that opportunities to address evidential weaknesses are lost and the presentation of the case compromised. The precognition must be a frank but sensitive dialogue between the victim and the precognoscer.

• A range of recommendations are aimed at strengthening our communication with victims, with the aim of improving the level of preparation of the victim for trial.
• Communication between the police and prosecutors at the earliest stage is to be strengthened to allow the Procurator Fiscal to provide advice and direction and to influence evidence-gathering.

It is recommended that formal feedback to the reporting police officer is introduced where there is insufficient evidence, to improve common understanding of what constitutes sufficiency. Lord Advocate's Guidance to the Police will be issued to improve consistency of approach in the reporting and investigation of these crimes

• It is recommended that until the law is reconsidered by this Parliament, the charge of sodomy involving male or transgender victims and children should always be prosecuted in the High Court.

Some of the more significant findings of the Review recognized the difficulties in securing sufficient credible and reliable evidence upon which to found a prosecution;

• A third of all cases of rape reported fall at the first hurdle, when reported to the procurator fiscal by the police. Of those cases, the overwhelming majority (approximately 80%) were marked not to proceed by the procurator fiscal on the basis of insufficiency of evidence.

We may not always be able to change the ultimate outcome of the analysis of evidence, but we must ensure that the investigation is as thorough and fair as it can be.

• The restrictive definition of rape in Scotland compared to other jurisdictions, coupled with the near unique requirement for corroboration, presents a major challenge for the prosecution service.
• The limitations of the evidential relief provided by the so called Moorov Doctrine are significant for the prosecution in Scotland. This doctrine allows two or more victims, whose evidence is otherwise uncorroborated, to provide mutual corroboration where there is a close connection in the time, character and circumstances of the charges. It often precludes, however, mutual corroboration of the allegations of victims of successive generations abused by a parent or grandparent, albeit that the offending behavior is otherwise strikingly similar.

Likewise, where the accused is alleged to have abused several individuals of different gender or different vulnerabilities the quite distinct nature of the circumstances of the charge or of the nature of the sexual conduct mean that the Moorov doctrine cannot be deployed.

The Way Forward

The conviction rate for rape in Scotland is low, in line with most other adversarial jurisdictions, but Scotland is not a social backwater, and the Review confirms that other jurisdictions also struggle with these cases.

We have examined the approach taken by a range of prosecution services in other Commonwealth jurisdictions and have studied systems which have responded to the challenges of rape and sexual offending by introducing an element of specialism in their approach.

The Review has considered the benefits and the detail of systems of specialism and - with no element of pride or preciousness - considered their application in Scotland.

What is apparent is that what works in one jurisdiction - with its particular legal framework and culture - may not fit in another, distinct system. The review concluded that there exists a high degree of specialism within the structures and system of prosecution in Scotland - broadly equivalent to those jurisdictions which employ specialist models.

Crucially, it is concluded that in line with other systems of specialism, the pivotal factor is provision of detailed, comprehensive specialist training and guidance to prosecution staff. The outcome of the Review is a proposed approach which is tailored to meet the needs and circumstances of the prosecution in the small jurisdiction of Scotland. This will draw upon the benefits observed in other jurisdictions, rather than trying to bolt on to our system wholesale elements which have been developed in other jurisdictions, with their own, unique legal and social cultures.

A range of recommendations seeks to ensure staff are provided with enhanced guidance to ensure consistent, high quality investigations and we will introduce a competence-based training programme with Departmental certification procedure for staff undertaking this area of work. No new member of staff should undertake work in this area until they become so certified.

The Review recognizes that this is a substantial undertaking, and acknowledges the tremendous experience and skill which already exists amongst COPFS staff who have been engaged in dealing with these cases for many years. Indeed, in the course of the Review, many examples of excellent practice were found, demonstrating the care and professionalism which prosecution staff bring to their work in this area.

The Report recommends that all actions, including the delivery of introductory, intermediate and advanced training - suitably targeted - should be complete within 3 years.

Be assured that the outcome of this Review signals a major reform to the way in which COPFS approaches the investigation and prosecution of rape and sexual offences.

We look to our colleagues from victim organizations and other criminal justice professionals to assist us in implementing these changes and in measuring their impact, but I am confident that implementation of the recommendations in this Report will provide a sound basis to deliver an improved quality of investigation and prosecution.

Our aspiration is to build strong, more compelling cases, while treating victims with the courtesy, respect and sensitivity which they are due.