Lord Advocate orders fresh inquiry into how sexual crimes are prosecuted

Lord Advocate Dorothy Bain QC has commissioned a study of how sexual offences cases are handled by the prosecution service, updating an earlier review she carried out over a decade ago.

In a wide-ranging interview published in Holyrood magazine earlier this month, Bain, who was appointed lord advocate in the summer, noted that much had been learned about sexual offences since she published the results of her own review in 2008.

In a session of the Scottish Parliament’s Criminal Justice Committee held this morning Bain said she had appointed Susanne Tanner QC to the role of Assistant Principal Crown Counsel and asked her to lead the new investigation. The Crown Office and Procurator Fiscal Service (COPFS) will also carry out a separate review of its victim information and advice service, led by Deputy Crown Agent Lindsey Miller.

“I have commissioned Susanne Tanner QC to become Assistant Principal Crown Counsel and to conduct a full review of how prosecutors deal with reports of sexual offences,” Bain said.

“The remit of the review will be approved by me in due course and will take into account the views of victims and agencies from across the criminal justice system.”

She added that, in light of the significant impact the pandemic has had on the ability for cases to be heard quickly, the purpose of Miller’s review is to “ensure COPFS can continue to deliver the high levels of support and advice to all victims and witnesses that they do currently”.

Following the publication of Bain’s own review, which was commissioned by then lord advocate Elish Angiolini, the National Sexual Crimes Unit was set up. Speaking to Holyrood earlier this month, Bain said the drastic rise in the number of alleged sexual offences being reported meant the recommendations she made at the time now needed to be updated.

“The time has come for another review in the Crown Office of that area of work,” she said. “It now accounts for 70 per cent of High Court crime. That’s increased massively – there are a lot of reasons why and we need to understand that.

“People are being encouraged to report sexual crime and people are being told that they will be believed – in the past children simply weren’t believed.

“There’s a greater appreciation that exists across the whole of society but the fact there’s more crime of that nature reveals we still have a lot to learn as prosecutors about the way we deal with these cases. The justice system has a lot to learn about these cases.”

The reviews come at the same time as the Scottish Government has begun consulting on whether the controversial not proven verdict should be scrapped – something organisations such as Rape Crisis have been campaigning for because they believe it is used disproportionately in rape cases where a guilty verdict may otherwise have been returned.

That consultation is also looking at whether the existing rules on corroboration, jury size and the majority required for conviction are fit for purpose.

In her interview with Holyrood, Bain said she is in favour of even further-reaching changes being made, noting that government ministers are “morally obliged” to consider whether sexual offences cases should be tried in front of a single judge as opposed to a jury. Making the case for juryless trials, she said that research has shown juries hold prejudicial and false beliefs about rape that affect their evaluation of the evidence presented at trial.

That suggestion has proved unpopular among criminal defence lawyers, with Tony Lenehan, president of the Scottish Criminal Bar Association, telling The Times that those accused of rape should be tried by a jury of their peers because such matters are “ill suited to judgment by a single mind drawn from an entirely middle aged, affluent, university educated pool of people”. Defence advocate Thomas Ross QC told Scottish Legal News that juryless trials would be an “authoritarian nightmare” for the justice system.

Former SNP justice secretary Kenny MacAskill, who is now an Alba MP, has written to justice secretary Keith Brown saying that juryless trials would “strike at the heart of the justice system” and would represent “a step too far”.