RAPE victims who refuse to give evidence in court might be jailed "under exceptional circumstances", under new guidelines, it has emerged, after an MSP sought clarification over a new Crown Office policy.
Under the controversial measure, since March 12, reluctant complainers in cases of rape or other serious sexual offences can be compelled to testify, where prosecution is deemed to be in the public interest.
In response to a question from SNP MSP Christina McKelvie yesterday, Solicitor General Alison Di Rollo failed to guarantee that victims of rape would never be sent to prison for failing to give evidence against their alleged attacker.
Ms McKevie had sought assurances that complainers would not face jail for ignoring a witness warrant if one was sought by the Crown.
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Appearing before MSPs yesterday Ms Di Rollo said: "We can never exclude the possibility that there could be circumstances where a witness warrant might be sought if a complainer refused to attend at court when lawfully cited.
"Whilst we accept that, we expect this would and could only arise in the most exceptional circumstances."
Last month Rape Crisis Scotland wrote to the Crown Office saying the policy was causing "significant concern" and that the policy risked breaching the rights of rape survivors, and could further reduce confidence in the justice system, causing more rape complainers to retract their statements.
Ms Di Rollo told MSPs that she and the Lord Advocate had met with Rape Crisis Scotland last week in a bid to offer reassurance about how the policy will work in practice. "We confirmed that the focus of the Crown's revised policy is not compelling rape complainers to testify," she said. "The focus is to ensure that the burden of prosecutorial decision-making lies properly with the Crown and to ensure that decisions are made after the most careful consideration of all the relevant circumstances."
She said that the need to issue a witness warrant had not arisen in her decade of prosecuting rape cases in the High Court.
The new Crown Office policy addresses concerns that almost uniquely, decisions on whether to prosecute a rapist tend to be dependent largely on whether or not a victim – usually a woman – is willing to give evidence.
Prosecutors are concerned that there may be situations, for example with a particularly dangerous accused where it is not in the public interest of the interests of justice for this to be the case. The Crown Office says it want to re-shift the balance so that the burden of decision-making rests with the Crown, not the complainer.
However campaigners are concerned that once a witness warrant is issued the Crown Office has no control over any sanction imposed on a complainer who fails to comply with it, and fear that the ultimate sanction for failing to do so could be a custodial sentence.
Ms Di Rollo insisted "the complainer's views, her interests and her welfare are at the heart of the Crown's prosecution policy".
"The focus of the Crown's revised policy is not compelling rape complainers to testify."
But she declined to say reluctant complainers could never be jailed under the policy.
In response to Ms McKelvie's question, she added: ""Should that issue ever arise, before any decision was taken about the appropriateness of seeking a warrant in the first place, very careful consideration and assessment would be given by an experienced prosecutor to all the relevant factors in that case."
She added: "We will take careful account of the risks of not proceeding against a particularly dangerous accused, but the complainer's views, her interest and her welfare are at the heart of the Crown's prosecution policy in relation to reluctant complainers."
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Sandy Brindley, Rape Crisis Scotland Coordinator said the charity continued to have significant concerns.
"Alison Di Rollo said she had never seen a warrant issued but that is because until March the 12 the policy was not to compel witness to give evidence," she said. "They have reassured us that this would only be used in exceptional circumstances but for any rape complainer facing the possibility of this, it is difficult to see that as a reassurance.
"The crown were also unable to reassure us someone isn't potentially going to face jail in these circumstances.
"For someone to have the courage to report a rape and then face the possibility - even if remote - that they fact jail is very concerning. In 20 years working for Rape Crisis I have never spoken to anyone who has felt the "burden" of decision making. It doesn't feel like a choice.
"If they get to the point where they can't continue it is because the impact on their mental health is too great."
"We also think it is pointless to cause this distress to complainers as the crown will never get the evidence it needs to get a conviction under such cirumcstances."
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