Meeting of the Parliament 01 May 2018
I rise to my feet with a considerable amount of trepidation. I am mindful, as I speak, that I do not have experience in two critical ways. I have not been a victim of rape; I have not endured that most horrific of crimes. I can only imagine what it must be like not only to suffer the disempowerment that Rhoda Grant described very well, but then to have to go through that again in a court of law. I can only imagine how traumatising that must be; how difficult it must be to face and what a person must do to in order bring themselves to go through that—to relive those experiences just to ensure that justice is served. Nor am I a lawyer, so I have not had to prosecute such cases. I am mindful of the difficulties that the authorities face, as they seek to prosecute.
With that in mind, I am supportive of and fully aligned with my colleague Kezia Dugdale’s earlier comments. I have huge concerns about the policy both in terms of how it has been framed and in principle, so I support Kezia Dugdale’s calls for the policy to be paused and for implementation of her five-step plan.
Before I set out why, I will say clearly where I am in absolute lockstep with what both the law officers are trying to achieve and what everyone in the chamber is trying to achieve.
There have to be three clear priorities when it comes to dealing with cases of rape. First, we have to ensure that more victims come forward. That seems to be happening anyway, but we need to go much further; we need to give victims—the survivors—confidence about coming forward, so that we can ensure that people get access to justice and that the people who perpetrate these vile acts are brought to justice.
We must also ensure that giving evidence becomes a better experience for victims of rape. I think that Lord Carloway’s intervention today is hugely useful, and that the steps in Kezia Dugdale’s plan are hugely important.
Above all else, when victims come forward—when survivors come forward—in addition to improvements that we make to their experience, we need ultimately to make sure that we improve the conviction rate. It must be a priority that when cases are brought, we see successful convictions.
I will turn to why I have issues with the policy as it has been articulated so far. First, I have huge concerns about when reluctance turns to refusal. We have heard the issues that have been set out by the law officers; actions must be given up when witnesses are reluctant to give evidence. We have heard that there would never be circumstances in which a victim would be brought to court in the back of police car.
However, what I have yet to hear is how that is framed—an articulation of when a person goes from simply being reluctant to refusing. The policy has to set out clearly how that would be understood, how it would be assessed, and whether individuals who are reluctant are genuinely giving consent, because they have to consent to giving evidence in court. That has to be a fundamental principle if we are not going to simply disempower individuals further—but where is it set out in the policy?
Secondly, there is the classic utilitarian argument about the public interest versus the individual interest. I understand the overarching desire to ensure that we protect the wider public while balancing the interests of the individual against that, but we have to do so with huge sensitivity and caution. It is a fundamental principle, not just of the courts of justice, but of democracy, that wider interests cannot simply trump the rights of the individual. There is a balance to be struck, but there needs to be articulation of how that balance is understood and how it is to be struck.
Fundamentally, the issue is about trust versus policy. It is vital that any policy has trust and that individuals who come forward trust the system and the process. I do not understand how we can expect individuals to trust the system if they feel that they will be compelled to give evidence when they no longer wish to do so. Ultimately, the issue is about witnesses coming forward. If they perceive that they will be compelled to give evidence when they no longer wish to do so, I cannot see how that will be anything other than a detriment to the principles that I set out at the beginning of my speech about ensuring that more people come forward and that they have a better experience of the justice system.