5th North East Conference on Sexual Violence

November 2011

Independent Legal Representationdelivering justice or just raising expectations?

Fiona RaittDundee Law School

Delivering justiceILR and raised expectations

Independent Legal Representation - its purpose, intention, merits and effect

The promise v the reality Over-reaching in ambition in order to move

one step forwards? The conditions for productive change -

preparing the ground

A changing climate and emerging debates

30 years of law reform Impact of European Convention on HR Seismic political shifts in civic society Devolution, the feminising of parliament

government + the Crown Office Empowered third sector Rise of the victims movement

Barriers to delivery

Law and policy reforms trapped by path dependency

Apparent commitment to adversarial proceedings

Establishment complacency Arrival of ILR as “agent provocateur” Jolt to conventional thinking

Political commitments Ministerial support at Rape Crisis Scotland

conferences 2008 + 2010 MSP PQs and interventions on responses to rape Dedicated funding and consultancy status for third

sector Endorsement of gendered definition of sexual

violence and domestic abuse Stakeholders meetings initiated by Scottish

government

Law reform and new dynamics

Sexual Offences (Sc) Act 2009 – more expansive definition of rape

Criminal Justice & Licensing (Sc) Act 2010 - new disclosure regime: Bill team meeting responsive

Positive critical media reaction to ILR debates and to publication of high attrition rates in rape cases

Challenging public attitudes

Public attitudes: Amnesty Scottish survey affirms attachment to rape myths

Rape Crisis Scotland high profile campaigns: This is not an invitation to rape me Not Ever Ten top tips to end rape

Challenging juries

Paul McBryde QC breaks rank: October 2011

“We have got 15 people deciding whether a person is guilty and we know nothing about them.....A lot of trials are conducted by police statements. If a member of the jury can’t read or speak English that’s a bit of a disadvantage....It is supposed to be a jury of peers but you tend to find that most are unemployed or retired because employed people often get out of jury duty. ...”

Challenging the rules of evidence

Sexual history evidence reforms: Burman & Jamieson research: reforms blunted in practical effect

Disclosure of personal records : greater focus on credibility of rape complainants

The Carloway Review 2011 recommends abolishing corroboration: impact on rape cases uncertain

If no corroboration might there be even more focus on complainant?

COPFS positive response to disclosure concerns

Disclosure Manual available online from 2008 http://www.copfs.gov.uk/ and search “Disclosure

Manual” Full guidance on medical records [2011] http://www.copfs.gov.uk/sites/default/files/Policy%2

0on%20Sensitive%20Personal%20Records%20Policy%20%20Web%20Version%20-%20Final%204%205%2011.pdf

Tentative optimism

Renewed ministerial concern for better outcomes for those damaged by the criminal justice system

Shadows of ILR begin to enter the debates Increased references to advocacy services, dignity

and respect for victims and witnesses Scottish Government manifesto commitment to

forthcoming Victims Rights Bill The potential of further devolution