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The Scottish Government's consultation paper covers a range of issues, including the not proven verdict and jury numbers, but for the purposes of this response our focus is on corroboration (although for the record, we fully support removing the not proven verdict because it is disproportionately used by juries to acquit those on trial for sexual offences). 

The goal of our campaign is to improve access to justice for everyone affected by sexual offences in Scotland, where the centuries-old requirement for corroboration sets the standard of evidence so high that only a minority of cases ever reach prosecution. Of all the rapes reported to the police in Scotland each year, on average, around 90% are dropped without a charge ever being made. 

The most common reason for cases being dropped without charge is a lack of corroboration. It’s important to recognise that lack of corroboration doesn’t necessarily mean a lack of evidence, it just means that the evidence available doesn’t tick some very specific boxes. Corroboration applies to all types of crime in Scotland and its job is to ensure that the essential facts of each offence are corroborated. 

In most cases that simply requires two independent sources of evidence to prove a) that an offence was committed, and b) that the person accused is the person who committed the offence, but it’s a bit more complicated for a charge of rape. While we welcome the Scottish Government’s consultation on this matter (found at Section 5), we think it’s important to highlight some of the key points in the argument for reforming or abolishing corroboration to help others to draw their own conclusions. 

Firstly - and it bears repeating - a lack of corroboration does not mean a lack of evidence. In every other country in the world, evidence of a crime is assessed on the basis of quality. Good quality evidence is the key to securing a safe conviction. In Scotland, however, good quality evidence of a sexual offence does not count unless it ticks the right boxes. 

We do not believe that reforming or abolishing corroboration would open the floodgates to a wave of unsafe convictions or miscarriages of justice. Nor would it mean that innocent people could be prosecuted without any evidence of wrongdoing. Reforming or abolishing corroboration would simply mean that the limiting requirement of ticking certain boxes would be replaced with a qualitative assessment of all the evidence available. We believe that good quality evidence is the key to ensuring that prosecutions are successful and that convictions are safe. 

Secondly, we put forward our proposal for reform of corroboration in 2020 because the Government’s previous effort to abolish it had proved so controversial that it created divisions through parliament and beyond. It’s an emotive issue and we recognise that, which is why our proposal for reform was intended as a means to find a workable compromise, to build bridges and to bring all the parties back to the table.  We’ve worked extremely hard to engage with MSPs from every party, and with the wider legal community. We’ve listened to all their views on corroboration and gained much from their willingness to share their knowledge and experience. We’ve learnt an awful lot along the way, both from those who broadly agree with our campaign and those who do not. 

Achieving the necessary level of political consensus on the need to consider corroboration afresh was a significant step towards where we are today; the question is no longer a hypothetical can we address the problems presented by corroboration, but a much more practical how do we address them? 

Thirdly, our 2020 proposal for reform included some of the ‘recent developments’ referred to in the consultation document, including allowing distress to corroborate lack of consent and the question raised by the Jamal case around the necessity of corroborating penetration, and we recognise the importance of these developments.  

However, developments in recent case law do not immediately translate into meaningful precedents for every sexual offence case that follows. There hasn’t yet been a universal recognition in law that a victim’s distress is proof of lack of consent, or that penetration can be proven by any means other than forensic evidence or the testimony an eye witness, and this is a good illustration of the problems presented by relying on corroboration. Interpretation of the essential facts is often inconsistent, and what constitutes corroboration in one person’s mind might not be recognised by another.  

Finally, it’s important to remember that the people who are truly failed by corroboration are the victims of sexual offences. Maintaining an evidential bar set so high that only 10% of cases can reach it offers a very effective level of protection to 90% of sex offenders. That is indefensible. No one in their right mind would consider it acceptable if only 10% of murders or burglaries or frauds were ever prosecuted, but corroboration does not present the same barriers to justice for those crimes.    

When it comes to the question of abolishing or reforming corroboration, our position would be to support whichever option has the sufficient backing to ensure its success. We are not, and make no claims to be, the legal experts here. Our proposal for reform was a means of generating discussion by offering a compromise to the for-or-against arguments that had held sway since abolishing corroboration last topped the political agenda, and it has certainly achieved its purpose.  

We still believe that the idea of reform does have merit, and we recognise that abolishing corroboration purely for sexual offences raises some other difficult questions, but if the Government has the backing to abolish corroboration altogether then we would absolutely support that. This formed part of the discussion we had with the Lord Advocate, Dorothy Bain QC, when we met with her last December. She recently gave a statement on her own views about the levels of sexual violence in society and highlighted the World Health Organisation’s recognition that violence against women is a major public health problem and a violation of human rights. 

Lord Bonomy’s Post Corroboration Safeguards Review was published in 2014, and more recently we’ve also seen the Jury Research published in 2019, which provides the basis for the current consultation paper by identifying other aspects of the Scottish criminal justice system which need to be considered alongside corroboration. These two key documents are the reason why corroboration, the not proven verdict, jury numbers and jury majorities have all been parcelled together. Lord Bonomy’s task was to consider all the potential consequences of abolishing corroboration, and in doing so he addressed many of the concerns arising at the time. We believe that this, coupled with the findings of the Jury Research and the current political consensus, provides a much firmer foundation for the argument for either abolition or reform to be taken forward now than was previously the case. 

Ultimately, all we’re asking for is a safe and fair method of assessing all the evidence available in every case so that more victims of sexual offences might actually see their offenders charged. 10% simply isn’t good enough. And no matter whether the end result is reform or abolition, it must be implemented with clear policy guidelines for both prosecutors and the police to ensure consistent application. At present the responses to victims reporting sexual offences vary wildly from one area to another and from one police officer to another, and corroboration in its current form is almost universally recognised to be overly complex and inconsistently implemented.  

It is without doubt a challenging area of law, and for victims who make the difficult decision to report an offence to the police it feels like walking blindly into a foreign land for which no map is provided. Whatever conclusions are drawn from the consultation, we hope that better guidance and information for victims at all stages of the criminal justice process will be one of the outcomes. 

When we started our campaign back in 2018, corroboration was a political football which had been kicked into the long grass and abandoned; at long last the ball is finally back in play and this time we want to see it reach the goal – not just for ourselves but for the 90% of victims who go through the agony of reporting only to be find they have no chance of justice, because the law itself was the obstacle. 

We’re asking anyone with an interest in improving access to justice take the time to respond to the consultation (link below). You don’t need to answer all the questions in all the different sections unless you want to, and if you only want to respond to the issue of corroboration you can do so. We're happy to share our own responses to the document (just drop us a message to ask) but we encourage everyone to consider all of the issues raised in the consultation paper and answer according to your own view.  

https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation/  

If you are a victim or survivor of a sexual offence then you might be interested to know that the Lord Advocate also told us during our meeting in December that it was crucial for survivors to speak out and to keep telling their stories. If you want to do so then you can send us your message to us at info@speakoutsurvivors.co.uk and we will then pass on your email to the Lord Advocate and the Justice Secretary, Keith Brown MSP. Or you may wish to write directly to the Lord Advocate, Dorothy Bain QC at Crown Office 25 Chambers Street Edinburgh EH1 1LA  

We began our campaign with two key aims: Firstly, to raise awareness of how the law in Scotland fails the majority of survivors of serious sexual offences by making it extremely difficult to prosecute sex offenders; and secondly, to try to speak on behalf of those survivors who are unable to speak for themselves. 

Since we launched our campaign in 2018 we’ve been contacted by many other survivors who want to share their experiences with us, and to offer their support. As a result we’ve heard stories from all over Scotland and from people of all ages and backgrounds, and it has really brought home to us how common the experiences of rape, sexual assault and childhood sexual abuse truly are.

When we talk about the numbers of victims of sexual offences we tend to forget that those who report their experiences are just a small proportion of those affected. It’s estimated that only 16.8% of victims make the decision to go to the police following a rape or sexual assault, and this means that the scale of the problem is vastly under reported. 2,255 reports of rape were made to Police Scotland in 2017/2018. If that represents just 16.8% of all the people who experienced rape last year then the true number of victims is closer to 13,500. 

(*Sources shown below)

We know from our own experiences, and from others who have shared their experiences with us, that these crimes often have a lifelong impact upon survivors. It’s also a difficult subject to talk about and surviviors can feel responsible for what happened or fear that they will be blamed, which means that they are more likely to keep it a secret or to disclose only to a trusted friend or family member. This makes it even easier for offenders to escape consequence or prosecution for their actions.

At Speak Out Survivors we stand in solidarity with all survivors, regardless of whether their experiences are recent or historic, whether they are young or old or male or female, whether the offender was a stranger or someone known to them or someone responsible for their care, and whether the offence was reported or not. 

#HearMyVoice 2020:

The #HearMyVoice project went live on 30th November 2020, as part of the international campaign 16 Days of Activism Against Gender Based Violence.  It’s an audio project created by one of our co-founders, Suzy Angus, and you can find out more about her experience of working with the voices of survivors in the blog section of the website.

Listen to #HearMyVoice: https://www.youtube.com/watch?v=L6V7TfhZKl8&fbclid=IwAR0DtZfJsNPqUDsCz3hzPTyb7AF8ubMmWMgp9bTeF1XKLJAGEygeoq0sizA

Sources:

https://www.zerotolerance.org.uk/vaw-facts/

https://www.gov.scot/publications/scottish-crime-justice-survey-2014-15-sexual-victimisation-stalking/pages/5/