Thomas Ross QC

The proposal is among a number of recommendations made in a report published today by the Scottish Centre for Crime and Justice Research (SCCJR), entitled Justice Journeys: Informing policy and practice through lived experience of victim‐survivors of rape and serious sexual assault.

Researchers made their recommendations on the basis of interviews with 17 complainers.

Of independent legal representation, the report states that it “should be considered as a means of allowing victim-survivors to be more adequately represented, and less marginal to, the criminal justice process”.

Elsewhere it calls for a “review of the (adversarial) nature and manner of defence questioning” as well as “the role of the court and prosecutor in objecting to questioning that infringes on the complainer’s right to dignity and privacy”.

Furthermore, the report recommends a review of the use of sexual history and character evidence in trials.

Researchers also addressed practical aspects of the criminal justice process: how police, prosecutors and others should conduct themselves in a manner sensitive to complainers’ needs. For example, they note that delays in scheduling cases caused much frustration and anxiety for complainers, who expressed concern over inadvertently encountering the accused within the court building.

Thomas Ross QC, told Scottish Legal News that the report “contains a pool of information that will be of tremendous use to those preparing witnesses for the practical aspects of giving evidence at court” and that “advocates depute in particular should never meet a rape complainer pre-trial in ignorance of the relevant parts of this informative piece of research”.

He added, however, that he was “absolutely against it being used as a basis for any reform of the criminal justice system, other than as a small piece of a large jigsaw of resources”.

Commenting on the number of people interviewed for the report, he said: “The sample size was 17. Two of the cases did not proceed for reasons that are not given. Three did not proceed because of insufficient evidence. Twelve cases did proceed to trial, but in only two were juries of 15 citizens chosen at random satisfied that the allegation had been proved beyond reasonable doubt.

“From this it is clear, that not only is the sample size so small as to be less than scientific, the opinions expressed are likely to be influenced by the outcome rather than the process.”

The QC added that the sexual character rule is preventing the admission of key evidence.

He said: “There are two sides to every rape trial, and those involved in defending serious sexual crime in the High Court daily voice concerns that material is being kept from juries, as a result of the sexual character rule, that would have a material effect upon the credibility and reliability of the complainer.”

“Equally, as the identity of rape complainers is protected by rules of confidentiality, many believe that those accused of rape should have the same protection,” he added.