New law review will examine alleged bias against rape accused

MINISTERS are to launch a third review of Scotland's rape laws amid concerns that those accused of serious sexual assaults are being denied a fair trial.

The Scottish Executive will in the next few months announce an evaluation of legislation, introduced in 2002, which was designed to prevent rapists cross-examining their victims and protect victims from being improperly questioned about their sexual history.

The law followed high-profile cases in which rape complainers were allowed to be questioned personally by the accused.

Under the 2002 legislation - the Sexual Offences (Procedure and Evidence) (Scotland) Act - the lawyer representing someone accused of rape has to make a written application to the trial judge in advance of the case if they want to question the victim about her character or sexual history. If such permission is granted, however, it also becomes permissible for the prosecution to reveal to the jury any prior sex crimes of the accused.

Lawyers who have acted for the defence in rape cases say they are being forced to represent their clients with one hand tied behind their back.

John Scott, a lawyer and the chairman of the Scottish Human Rights Centre, said there was a widespread view in the legal profession that the legislation was unbalanced and "a minefield".

He said: "At times, because of the wording of the legislation, everyone including the judge, the defence and even the prosecution to an extent are aware that lines of legitimate inquiry and relevant questioning are being closed off to protect the victim. The balance is wrong."

His comments are likely to infuriate women's rights groups and rape charities, who fought for the Act because, they believed, it gave rape victims more protection. They say the legislation is necessary to prevent a repeat of cases such as that of 17-year-old Lindsay Armstrong, from New Cumnock, who killed herself in 2002 after being forced to hold up in court the thong she wore on the night of the rape. In June 2000, John Anderson cross-examined his 13- year-old alleged victim for two days in a case subsequent to that for which he had been acquitted.

Under pressure over poor conviction rates and uncertainty about the definition of rape, the Scottish Executive has already announced two separate reviews of the rape laws by the Scottish Law Commission and the Crown Office.

The reviews will examine the definition and level of proof for all sexual offences and will look at rape prosecutions.

The third and latest review, however, will be the first to establish how the 2002 Act is working and assess its impact on the outcome of rape cases.

Scott said the evaluation, which is expected to take up to 18 months, may find the law is such a mess that the legislation will need to be redrawn.

He was involved in a rape trial last month in which, out of three applications made to the judge, only one was granted. "I felt that I was conducting the trial with one hand tied behind my back. It may be that there has to be an appeal."

He said a number of appeals against rape convictions were expected from lawyers who believed the law had not allowed their client a fair trial.

"When you make an application, there is a presumption in favour of previous convictions going to the jury, " he said.

"That is basically telling the jury about your previous convictions but asking them to convict only on the evidence, but it's like throwing a skunk into the jury room and telling them to ignore the smell.

"At the moment, there is a situation where a complainer may have a conviction for a false allegation of rape and you may consider it is too risky to make an application to question her about her character. It may be that if the jury heard that she had committed perjury in the past they wouldn't convict, but if they hear about my client's conviction they won't acquit. It is an absolute minefield."

Fiona Raitt, a senior law lecturer at the University of Dundee, said: "The feedback I've had is that people see the law as very cumbersome. That's the perception of the defence.

"It does not seem to take into account that certain lines of questioning may arise in the course of someone giving evidence. It doesn't account for the spontaneity of the evidence."

In another indication that there may be serious problems with the law, there is evidence that victims may not be being protected. In one previously unreported case, a lawyer was granted the right to question a woman about how she had previously suggested that she wanted to have a sexual relationship with his client's son.

News of the forthcoming review comes amid mounting concern at Scotland's very low rate of convictions in rape cases. Although convictions rose from 4.9per cent to 6.8per cent in 20012002, the rate fell to just 4.1per cent the following year.

Sandy Brindley, of Rape Crisis Scotland, welcomed the Executive's review. But she added: "Most women don't report rapes, and they still feel that they are being raped again by the court process. Anecdotally, there is still a real concern that the law isn't working."

Margaret McGregor, chair of the Zero Tolerance charitable trust, said women were being subjected to "degrading and aggressive" questioning by the defence".

A Scottish Executive spokeswoman said: "As with all major pieces of legislation, we are constantly monitoring our progress to ensure that the changes we have made are meeting their objectives. Evaluation is a crucial part of the process - to make sure we are getting it right and to identify any possible opportunities for further improvements."

liam. mcdougall@sundayherald. com

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