Bid to set up sex crime courts to cut backlog and raise convictions

Victims in rape cases have described their experience of going through the justice process as traumatic and it is feared that as a result some are put off reporting the offences to the police.

The move to consider setting up a national sexual offences court follows a review by senior judge Lady Dorrian,pictured below, on ways to improve the management of sexual offence cases which she published last year.

In her report the Lord Justice Clerk recommended the new courts should have sentencing powers of up to 10 years imprisonment and that all staff and lawyers would have received specialist training to help victims dealing with trauma.

Other recommendations included that a pre-recording of the complainer’s evidence would be the standard way of presenting the evidence to the court to avoid the need to present evidence in person - which victims have found particularly distressing.

She said in the event of complainers requiring to attend court measures should be put in place to support them including the provision of a separate entrance to the building from where the accused may enter, a separate waiting room and arrangements designed to prevent chance encounters between the two people.

Lady Dorrian stopped short of recommending that cases should be heard by a single judge rather than a jury.

Instead, she suggested that a pilot could be conducted of single judges presiding over rape trials to establish their effectiveness and how they are perceived by complainers, accused and lawyers, and "to enable the issues to be assessed in a

practical rather than a theoretical way".

She added: "How such a pilot would be implemented, the cases and circumstances to which it would apply and such other important matters should form part of that further consideration."

There is currently a backlog of some 38,399 criminal cases across the country's justice system following the closure of the courts during the pandemic.

It is not know how many of these are sexual offences though in her report Lady Dorrian said such cases now constitute the vast majority of High Court cases with the trend likely to grow further.

Figures published last week revealed sexual crimes increased by 15 per cent last year to the highest level in over five decades despite a fall in overall crimes recorded by the police in Scotland in 2021-22.

Statistics found the number of these offences rose to 15,049, the highest total since 1971 and accounted for 5 per cent of all crimes reported in Scotland last year - with the report noting this continued a "long-term, upward trend".

According to the data, cases of rape and attempted rape rose by 9 per cent to 2,498 last year - accounting for almost one in five (17 per cent) of all reported sexual crimes.

Figures released by the Scottish Government last month reveal that rape and attempted rape had the lowest conviction rate of all crimes each year for the last decade.

In 2021-22, just 51 per cent of rape and attempted rape trials resulted in a conviction, compared to a 91 per cent overall conviction rate. The number of prosecutions for these crimes fell by 49 per cent from 299 in 2019-20 to just 152 in 2020-21.

Sandy Brindley, chief executive of Rape Crisis Scotland, backed the introduction of the new specialist courts saying radical reforms were needed.

“Figures released this week show that sexual crime is at its highest rate in five decades, but very few of these reports result in a conviction. Rape has the lowest conviction rate of any crime type in Scotland, and many rape survivors tell us that the process of seeking justice can be just as traumatic as the rape itself. We need radical change to how our legal system responds to rape," she said.

"The proposal to introduce specialist courts for sexual offences could transform the current situation....It would also provide an opportunity to fundamentally change how these cases are organised.

"Under the current system, rape trials are routinely allocated to floating trial diets, which means survivors don’t know when they will be called to give evidence. The uncertainty this causes leads to huge amount of unnecessary distress."

She added: "There are huge delays in cases getting to court, this was an issue even before Covid but now due to the backlog rape survivors are sometimes waiting two or three years or longer to give their evidence.

"What women say to us is that this means they cannot get on with their lives, with the prospect of giving such traumatic evidence hanging over them for long periods of time.

"At Rape Crisis Scotland we are seeing increasing numbers of rape complainers wanting to withdraw from the process, as they just cannot cope with the delays and uncertainty any longer.

"Another element of the court will be a presumption that the complainer’s evidence will be pre recorded, meaning they don’t need to attend court at all. Scotland has the opportunity to lead the way internationally in improving responses to rape and we urge the Scottish Government to act.”

The Faculty of Advocates said it is strongly opposed to cases being tried before a judge and not a jury and insisted jurors play an essential role in the delivery of justice.

Tony Lenehan, President of the Faculty of Advocates' Criminal Bar Association (FACBA) , said: "Excluding the public from the decision making in these cases deprives the justice system of diversity of age, ethnicity, plurality of life experience.

"It renders this most important aspect of our justice system vulnerable to extreme viewpoints, narrow life experience, outdated views and singular character deficiencies. It is not just undemocratic, but anti-democratic."

He added: “Using a panel of 15 people rounds down any extreme views to deliver a representative verdict on the facts.

"The senior lawyers proposed are, necessarily, at least middle-aged, middle income or better, and highly unlikely to have the broadest spectrum of experience that 15 citizens will have.

"A single person, lawyer or otherwise, could hold or be seen to hold latent outlying views or defects of character, and there would be no moderating influence brought to bear to deliver an open and reliable verdict, of the sort delivered by the plurality of a jury.

“The public have confidence in juries because juries are the public. Tearing the public out of these cases – and these cases are the most factually nuanced and sensitive of all – and enforcing the perception that justice is subject only to the views of the older, wealthier and university-educated lawyers is a backward step in any nation’s embrace of democracy."

On the plan to set up specialist courts, he said the Faculty understood "that reducing the status of serious sexual offence trials below High Court prosecution is certainly hoped by the special interest groups to deliver increased conviction rates".

However, he said there was a fear that it could prioritise cost over accuracy and fairness of outcome.

"Having special interest groups dictate what the acceptable level of convictions should be is an imperfectly informed and illegitimate yardstick in any advanced democracy....Cases which end without conviction must be seen as having involved some incomplete or unsatisfactory evidential matrix. Just listening to one side in the post-trial analysis isn’t likely to provide the best perception of the fairness of the process. "

Specialist sexual offences courts were established in New Zealand after the evaluation of a pilot scheme three years ago.

It found they resulted in fewer cases going to trial with more guilty pleas submitted by the accused. It also found that cases progressed faster and that complainants were better prepared for attending trial and less anxious. Cases are still heard by juries.

Specialist domestic violence courts were introduced in parts of Scotland following a successful trial which found they had higher conviction rates than traditional courts.

An evaluation specific of domestic abuse pilot courts at Glasgow Sheriff Court was commissioned by the then Scottish Executive and took place from October 2004-October 2006.

It found the court had many benefits compared to traditional courts, including a higher proportion of cases in which there was a guilty plea at some stage (81% compared to 73%) and a higher conviction rate (86% compared to 77%).

A Scottish Government spokesman said: "The Scottish Government is committed to improving victims’ experiences of the justice system by putting them at its centre.

"The consultation invites views on possible reforms to improve the experiences and strengthen the rights of victims of crime, including through the establishment of a specialist sexual offences court with trauma-informed procedures, as recommended by Lady Dorrian’s Review.

He added: “Some of the key features of a specialist court recommended by Lady Dorrian are now being progressed, including work towards the expansion of pre-recorded evidence and the development of trauma-informed training.

“We encourage victims and survivors, members of the legal profession, stakeholders across the justice sector and the wider public to respond to our consultation and share their views.”