Rape victims in Scotland will be protected when giving evidence, says lord advocate | Scotland

Scotland’s top legal official has moved to reassure victims of sexual abuse that they will be protected, following a high court ruling in which the Supreme Court warned that Scottish laws designed to limit intrusive cross-examination could infringe on men’s right to a fair trial.

Lords solicitor Dorothy Bain KC said in a strongly worded statement: “I want to make clear that I understand that the sexual abuse of women and children is the greatest challenge facing our justice system.

“This is unacceptable and victims should be able to speak openly without further fear,” he continued, emphasizing: “The Supreme Court decision does not change the legal protections for those who give evidence.”

Last Wednesday the Supreme Court ruled in the case of two men who appealed against their rape convictions in Scottish courts. Although both appeals were dismissed, the five judges ruled that Scottish courts needed to change their approach to the admission of evidence in such cases and warned that the current process “could lead to a breach of defendants’ rights to a fair trial under Article 6 of the Convention”.

The ruling focused on Scotland’s “rape shield” laws, which were introduced to protect complainants in sexual offense cases from derogatory questions about their sexual history or character.

But lawyers have expressed growing concern that the application of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, together with common law, has resulted in the narrowing of admissible evidence, leading to courtroom shenanigans and leaving defendants unable to defend themselves properly.

But on Monday Bain brought the focus back to victims, reassuring them: “These safeguards are firmly in place to protect the dignity, privacy and welfare of victims… The high court emphasized that any intrusion into a complainant’s privacy should be no more than necessary to ensure a fair trial of the accused.”

His intervention came amid warnings that the decision would cause chaos in active investigations and lead to a flood of appeals.

At a public debate organized by the Scottish Association for Criminal Investigation immediately following the decision, Thomas Ross KC, who has previously spoken about the operation of rape shield laws, suggested that Holyrood should appoint a human rights lawyer such as the recently retired Lady Hale to accept miscarriage of justice referrals.

“But what is more likely is that those whose appeals were previously rejected will be referred to the Scottish Criminal Cases Review Commission, the SCCRC will be flooded with new cases, the process will take five years and the Scottish government will hope everyone will forget about it. [it].”

Katrina Parkes, legal director at the Scottish royal office, insisted: The decision did not automatically make existing convictions unsafe. “Any objections will be considered on a case-by-case basis through established review processes.”

Sandy Brindley, chief executive of Rape Crisis Scotland, said last week the decision could be a “real step backwards”.

“The prospect of your sexual history coming up in court can really deter women from reporting. I think there’s a real concern about what this means for future cases and for women’s confidence in the justice process in Scotland.”

The decision comes after the Scottish parliament voted to scrap the “not proven” verdict, a legal anomaly thought to be a key factor in the country’s significantly low conviction rate for rape and sexual assault, as part of a series of reforms aimed at “placing victims and witnesses at the center of a modern and fair justice system”.