Crime & Punishment: Is Scotland's justice sector serving women?

“We want to ensure that anyone who has been a victim of a sexual crime has confidence in our justice system,” said First Minister John Swinney.

The SNP leader was responding to a question from Criminal Justice Committee convener Audrey Nicoll about improving access to justice for victims of sexual offences.

Nicoll wasn’t the only member to stand up at First Minister’s Questions and ask for answers on the subject during a week in which Scotland’s record on handling and reducing sexual offending came into sharp focus. 

The latest Police Scotland figures show 1400 rape allegations were recorded in the six months to September – a total which marks a 19.5 per cent increase on the same period in 2023.

Launching the latest phase of the That Guy campaign, which asks men to address their own behaviours and “stop sexual violence before it starts”, Assistant Chief Constable Steve Johnson acknowledged that the statistics are not “the full picture” and are “probably the tip of the iceberg”. 

We want people to trust and have confidence in us

“We know it takes a long time for women to come forward and have the confidence to come and tell their story to the police,” Johnson said and, sending out a message similar to that of the first minister, he added: “We want that to be almost instant. We want people to trust and have confidence in us.”

But confidence is hard-won when most rape allegations never reach the courtroom. When they do, conviction rates are far lower than for other types of offending. Scotland’s overall conviction rate in 2021-22 was 88 per cent. For rape and attempted rape, it was just 48 per cent. And in cases where there is one charge and one complainer against an accused, the rate is even lower, averaging at just 24 per cent from 2018-19 to 2022-23.

It is a record that can bring the Scottish justice system no pride and which offers the victims of sexual offences little remedy or reassurance. 

The Victims, Witnesses, and Justice Reform Bill was brought forward to change that and improve victims’ experiences of the justice system by embedding trauma-informed practice, providing lifelong anonymity rights for victims of sexual offences and abolishing the not-proven verdict. But a provision to pilot juryless trials for cases of rape and attempted rape brought outcry from defence solicitors and ministers have now abandoned that measure, along with the reduction of jury numbers from 15 to 12.

Justice secretary Angela Constance said there was “not enough parliamentary support” to push ahead with the single-judge pilot and, indeed, the deputy first minister – then a backbencher – was amongst six SNP MSPs to rebel against the government earlier this year by abstaining in a vote on the bill, which failed to win Conservative, Labour or Lib Dem support. Against that background, Constance said amendments would be laid to allow for detailed research into jury deliberations instead. “I remain concerned by the substantial evidence that juries may be influenced by rape myths,” she stated. “We will undertake further work with justice partners to agree how to challenge and reduce the impact of rape myths. This might include, for example, further interventions or educational resources for jurors and the wider public.”

The Scottish Solicitors Bar Association called the U-turn on juryless trials “humiliating”. Tony Lenehan KC, vice-dean of the Faculty of Advocates, applauded Constance’s “considered and pragmatic approach”. Both agreed that it was necessary. But not all are convinced and Sandy Brindley, chief executive of Rape Crisis Scotland (RCS), expressed “disappointment”.

“Conviction rates for rape in Scotland remain the lowest of any crime type,” she said. “In the absence of the judge-led pilot, the focus must be on ensuring that juries are able to make decisions based on the evidence before them and not on false assumptions about rape.”

you can only commit that crime as a man

The development has unfolded at a time when rape crisis services, and indeed Brindley’s leadership, have themselves been in the spotlight. Glasgow and Clyde Rape Crisis, the oldest centre of its kind in Scotland, withdrew from the RCS network late last month, saying that its determination that “single-sex services delivered by an all-female workforce are crucial to help them heal from sexual trauma” is “at odds with RCS”. The decision followed the publication of a report into Edinburgh Rape Crisis Centre (ERCC), which was found to have failed to “put survivors first” and protect women-only spaces under the leadership of former chief executive Mridul Wadhwa, a trans woman, and a board which has now undergone a change in membership. An employment tribunal found ERCC worker Roz Adams had been unfairly constructively dismissed over her stance that service users should be able to know the sex of the staff dealing with their case and, as the head of the body setting national standards, Brindley’s handling of policy around the issue has led to calls from some MSPs for her to quit.

Acknowledging the “significant failures” at ERCC, Brindley has said she aims to introduce a “robust framework of assessment” over adherence to national standards. And she has said she feels a responsibility to try “move to a place where Rape Crisis is not being weaponised in the way that it has” been. 

If there has been a politicisation of rape crisis provision, some of the policies and practices of Police Scotland have also been contentious. MSPs agreed to invite Chief Constable Jo Farrell to give evidence to the Citizen Participation and Petitions Committee over the recording of the sex of those charged or convicted of rape or attempted rape. 

Under Scots law, rape is defined in law as penetration by a penis without consent. But there have been years of confusion over the single force’s policy on how transgender people accused of such crimes are to be listed in official documents. A petition was lodged on the matter as long ago as 2021, when a Freedom of Information response by the force stated that a rapist who “self-identifies as a woman would be expected to be recorded as a female on relevant police systems”. 

The disclosure prompted concerns from some that the feelings of criminals were being prioritised over those of victims, and that the policy risked further traumatising women and girls who had been assaulted. While Farrell has now said “you can only commit that crime as a man” and rapists will not be allowed to self-identify as women, that statement followed prolonged incertitude, and Conservative MSP Tess White said that “questions remain about the application of the policy in the past, and the detail of how Police Scotland will implement this operational change in the future”. 

It has the potential to transform the way in which all offences, and in particular sexual offences, are prosecuted

If all of this has created elements of dubiety around the treatment of sex offenders and support for those they have harmed, a judgment from the Court of Appeal has brought some welcome clarity around corroboration rules and could result in more cases reaching court. 

In a move hailed by Lord Advocate Dorothy Bain KC as an “evolution” of the legal system, a panel of judges has ruled that comments made by the victim of a crime shortly after the offence can be used to corroborate that offending took place, as well as the identity of the perpetrator, even if the victim is not visibly distressed. The decision addresses what Bain described as a “wrong turn” in the law and means more cases could now be brought to trial, including those that do not involve a sexual element. 

“This decision continues the evolution we are seeing in Scotland towards development of a progressive and humane justice system that truly serves our society,” Bain said, and, at First Minister’s Questions, Swinney backed that comment. “It has the potential to transform the way in which all offences, and in particular sexual offences, are prosecuted,” he said.

But to secure prosecutions, there must be sufficient resource in the system to do so. And this year Scottish police numbers fell to their lowest level since 2007. The total of full-time equivalent officers recorded by the chief statistician on 30 June was 16,207, down 392 in just one year. And there is disquiet in the ranks over pay, with the Scottish Police Federation announcing that its members would withdraw their goodwill for want of an acceptable deal. 

The body is seeking a 5.7 per cent uplift for 2024-25, but no formal offer has been made by Police Scotland, the Scottish Police Authority and the Scottish Government, which has been accused by new Scottish Conservative leader Russell Findlay of “long-term neglect” of the force – something denied by Constance, who has said the drop in headcount is a “short-term reduction” due to “specific circumstances”. “Police pension changes, which are out of the control of the Scottish Government, have led to more leavers,” she said.

it’s a concern that there’s a lack of faith in the system

“Scotland continues to have more police officers per capita than England and Wales and they are the best paid at all levels.”

The Victims, Witnesses, and Justice Reform Bill allows for the creation of a victim’s commissioner, a role which would require further resourcing. Scotland already has seven commissioners, with the overall cost hitting £16.6m in 2023-24 and prompting questions over value for money.  

With a specialist sexual offences court also proposed under the bill, the idea of expanded provision has arisen at a time when another intervention aimed at improving justice for women victims of male violence and abuse has reached a 20-year milestone. Run by Glasgow City Council and open to people across an area running from Oban to Stranraer, the Assist programme provides advocacy workers to victims whose cases are going through Glasgow’s dedicated Domestic Abuse Court. Staff explain procedures and seek the views of victims on court-ordered protective measures as part of a network of measures aimed at reducing public harm and protecting those affected by coercive control, stalking, and other forms of abuse, most of whom are women. 

Fiona McMullen, operations manager at Assist, has described the work undertaken as “murder prevention”. And, in a new podcast by the University of Edinburgh’s Domestic Abuse Court Experience Project, she and other insiders have suggested that both resourcing issues and confidence in the system could now put that in jeopardy. With 1,200 victims being supported through multiple cases, McMullen said “the processes, the protocols, the laws that we’ve got are all incredible, but we need the resources within the Crown Prosecution Service to manage the volume of cases”. 

“We’re talking about this at a point where there’s less police officers than there’s been for a while, where the Crown are saying they don’t have enough resources, where we don’t have enough resources,” McMullen said, while Mhairi McGowan, an independent consultant on violence against women and girls and former Assist manager, linked the four per cent decrease in recorded domestic abuse incidents in 2022-23 to “the lack of resources that police have to investigate”.

“A decrease isn’t a positive for us,” said McMullen of the 62,000 incident total, “it’s a concern that there’s a lack of faith in the system.”