Cases That Need Greatest Support Face Most Delays

The obstacles faced by raped women who confront their attacker in court have been highlighted by a new report that shows their case is likely to be delayed more than any other. Research conducted by Aberdeen University has found that rape and attempted rape cases will typically be adjourned more often than cases involving any other crime.

Difficulties in agreeing whether evidence about sexual history should be led are said to be among the main reasons for the delays. The effect on victims – already traumatised by their experiences, fearful of facing their attacker and suspicious of a justice system that has helped to give Scotland one of the lowest rape conviction rates in Europe, around 4.5 per cent – can be devastating.

The report, commissioned by the Scottish Executive, examined the impact of reforms to the High Court first proposed by Lord Bonomy and found that, while fewer cases were being delayed when they come to trial, cases were more likely to be repeatedly adjourned at an earlier stage, dragging out justice and causing greater distress for both victims and the accused.

Warning of the emergence of “preliminary hearing churn” and the return of an “adjournment culture”, academics found 38.7 per cent of cases had two or more preliminary hearings while 10.6 per cent of cases had four or more preliminary hearings. “Continued preliminary hearings were most common in rape cases and cases involving other sexual offences,” say the authors.

Researchers found that between April 2005 and March 2006 rape and attempted rape cases involved an average of 2.23 preliminary hearings, compared with two for other sexual offences, 1.89 for murder and attempted murder, 1.59 for robbery and 1.48 for drugs. Mandatory preliminary hearings were introduced three years ago for serious cases in Scotland to allow a judge to ensure the Crown and defence are fully prepared before proceeding to the trial.

However, the report says, the system is not always working as it should. Judges rarely see cases through from beginning to end, and newer judges are taking a “less pro-active and stringent approach” during preliminary hearings, it says, causing cases to drag on longer than they should, and has “the potential for undermining the reforms”.

Jan Macleod, the development officer with Women’s Support Group, says delays in court are exacerbating the anxiety suffered by victims: “Delays are very distressing not just for the victim but also for their partner or family. You have to get really psyched up for going to court so it can be very hard if the case is adjourned again and again.

“The court process continues to be a huge hurdle for women who have been raped. While we know the Lord Advocate has a genuine desire to improve things, we know that behind the scenes many cases are still incredibly badly handled.”

Sandy Brindley, the national development officer for Rape Crisis Scotland, says she welcomes recent improvements in the management of rape cases: “Before Bonomy, some women were coming up to their 20th trial date, which was enormously distressing. The situation has improved but, given the nature of the evidence women are giving, it’s important that delays are avoided. The case is usually hanging over victims for about a year and it’s enormously distressing for them. It’s absolutely crucial the delays are minimised as far as possible.”

Paul McBride, QC, a leading criminal advocate, says a shortage of expert witnesses and difficulties getting legal aid made adjournments more likely in rape cases. “Rape cases can be very complex, relying on DNA evidence and, more often than not, expert witnesses,” he says. “Psychiatric and psychological reports can take a substantial amount of time to prepare and they are required to be signed off by the legal aid board, which can also be difficult.

“If you are dealing with a case involving a 16-year-old accused and a complainer who both have learning difficulties and the evidence is DNA and an alleged confession, then the court might want to get psychiatric, psychological and social work reports, which might require four or five legal-aid sanctions.”

But, McBride says, despite the problems, cases are now coming to trial quicker than ever before: “It is getting quicker but not all parts of the of the system are entirely joined up. Delays cause distress to clients because they are very uncertain over their fate.”

A spokesman for the Crown Office says: “We are extremely conscious of the additional distress that can be caused by numerous preliminary hearings, and that there is a natural desire to wish to see the justice process concluded as quickly as possible. “However, evidential issues in cases of rape can be complex and are sometimes finely balanced.”

Since 2002, an application has had to be made to the court for permission should the defence wish to lead any evidence about sexual history or character evidence, so that the court can decide whether it is relevant to proceedings.

This must be submitted before a preliminary hearing, where it will be debated. This will often lead to further hearings to obtain medical or social work records to support the application.