Inside Justice

Only legal reform will tackle low rape conviction rates, writes Chris Marshall

For years, Scotland’s rape conviction rate has remained stubbornly low. Figures published yesterday show fewer than four in ten of those taken to court for rape or attempted rape in 2016-17 were found guilty.

Official statistics show the proportion of those convicted fell to 39 per cent in 2016-17, down from 49 per cent in the previous year.

The conviction rate is now at its lowest level since the 37 per cent recorded in 2008-9. That’s despite a 16 per cent rise in court proceedings for rape and attempted rape over the same period in 2016-17.

Such is the level of frustration with the criminal courts, it is believed more women could now turn to the civil system for justice.

In a case thought to be the first of its kind in nearly 100 years, a woman is currently using Scotland’s civil courts to sue a man previously cleared of raping her.

The former St Andrews University student, known only as Miss M, is seeking damages of nearly £100,000 in the personal injury claim against Stephen Coxen.

Mr Coxen was charged with raping the woman at her flat while she was drunk during freshers’ week in 2013, but the case against him was found not proven following a High Court trial in 2015.

Thought to be the first civil action in a rape case after a failed criminal prosecution since 1926, it follows the high-profile civil action brought against footballers David Robertson and David Goodwillie last year.

Denise Clair won £100,000 in damages at the Court of Session after judge Lord Armstrong ruled the two men had raped her.

Ms Clair, who waived her right to anonymity, took the action after the Crown Office decided against a criminal prosecution.

Last week Sandy Brindley, chief executive of Rape Crisis Scotland, said she had “no doubt” increasing numbers of women would turn to the civil system amid frustration at the historically low conviction rate in the criminal justice system.

Indeed, the latest figures suggest only significant legal reform will affect substantial improvements in the conviction rate.

Under previous justice secretary Kenny Macaskill, most of the discussion centred around the controversial proposal to get rid of corroboration, the centuries-old legal principle which requires two pieces of evidence for a case to come to trial.

After dominating the justice agenda for a number of years, discussion of corroboration all but ceased after Michael Matheson removed a provision which would have led to its scrapping from the Criminal Justice (Scotland) Bill in 2015.

Much of what has been discussed since then has amounted to tweaking at the edges, such as the decision to allow judges to direct juries about why there can be “good reason” for a person not to offer physical resistance during a sexual assault or to delay reporting it.

Potentially more significant is jury research currently being carried out by the Scottish Government into the use of not proven, effectively the same verdict in the eyes of the law as not guilty. Dropping not proven could have important implications for rape trials, although such a move is likely to be highly controversial.

However, after years of low conviction rates and a potential rise in the number of complainants turning to the civil courts, it may be time for some difficult decisions.