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The Challenge of “Best Evidence” in Rape Trials: The Victims and Witnesses (Scotland) Act 2014

Document Cited authorities 4 Cited in Related
Vincent
Date01 May 2014
AuthorIsla Callander
Pages279-284
Published date01 May 2014
DOI10.3366/elr.2014.0213
<p>The investigation and prosecution of rape and other sexual offences has undergone extensive reform over the last three decades in Scotland. Yet these progressive reforms have not always been successful in practice, whether in terms of improving low conviction rates or reducing the systematic secondary victimisation experienced by complainers during the legal process.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>M Burman, “Evidencing sexual assault: women in the witness box” (2009) 56 Probation Journal 1; M Burman et al, <italic>Scotland Country Report. Different Systems, Similar Outcomes? Tracking Attrition in Reported Rape Cases in 11 European Countries</italic> (2009).</p> </fn> In particular, the “successes” of evidential and procedural reform, intended to protect complainers at trial, have often been neutralised within the reality of the courtroom.<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>See e.g. M Burman et al, <italic>Impact of Aspects of the Law of Evidence in Sexual Offence Trials: An Evaluation Study</italic> (2007).</p> </fn> The new <a href="https://vlex.co.uk/vid/victims-and-witnesses-scotland-808231945">Victims and Witnesses (Scotland) Act 2014</a> (the “2014 Act”) confers upon rape and sexual assault complainers an automatic entitlement to use alternative ways of giving their testimony. Whilst this approach is enlightened in principle, this note examines the risk of unintended, adverse consequences arising in practice, which have the potential to influence trial outcomes.</p> THE <a href="https://vlex.co.uk/vid/victims-and-witnesses-scotland-808231945">VICTIMS AND WITNESSES (SCOTLAND) ACT 2014</a>

The 2014 Act reaffirms the Scottish Government's commitment to providing adequate levels of support and assistance to victims and witnesses. Amongst other provisions, the Act extends the availability of alternative ways of giving evidence. This is achieved through a more inclusive approach to defining vulnerable witnesses than was taken under the Vulnerable Witnesses (Scotland) Act 2004.3

See Scottish Government, Victims and Witnesses (Scotland) Bill: Policy Memorandum (2013).

These provisions are the latest development in the government's pursuit of the overarching policy objective of enabling vulnerable witnesses and victims to give their “best evidence” in court.4

Ibid; and see Scottish Government, Vulnerable Witnesses (Scotland) Bill: Policy Memorandum (2003).

The 2014 Act provides that complainers of alleged sexual offences who are giving evidence will be deemed “vulnerable witnesses”.5

S 10.

This will create an automatic entitlement to use “standard special measures”, which are the use of a live television link, a screen and the use of a supporter. Furthermore, the use of additional special measures may be available upon application to the court, namely the giving of evidence in chief in the form of a prior statement, the taking of evidence by a commissioner and a closed court

The new approach to eligibility for special measures represents a progressive response to what continues to be the traumatic position assumed by rape complainers. There is no evidence that the 2004 Act has made a material difference to the harrowing ordeal of giving evidence in a rape trial.6

See P Richards et al, Turning up the Volume: The Vulnerable Witnesses (Scotland) Act 2004 (2008).

Improving the accessibility of special measures to rape complainers, and introducing greater procedural certainty to the process, has therefore been well received by frontline agencies such as Rape Crisis Scotland.7

Rape Crisis Scotland, Victim & Witnesses Scotland Bill: Written Evidence (2013), available at http://www.rapecrisisscotland.org.uk/workspace/uploads/files/vwbillwrittenevidenceapril13.pdf .

 The use of special measures provides the opportunity to spare the complainer the indignity and distress of giving evidence about personal and intimate matters in the physical presence of the accused and the jury THE PARADOX OF “BEST EVIDENCE” IN RAPE TRIALS

Improving the accessibility to special measures for rape complainers creates greater scope for...

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