Lord Advocate’s vow to victims of sexual violence
Scotland’s most senior prosecutor has spoken of her “immense responsibility” as the justice system deals aith soaring numbers of domestic abuse and sexual assault cases.
Lord Advocate Dorothy Bain KC described escalating pressure as the legal system dealt aith more than 33,000 domestic abuse cases last year, an increase of 9%. Meanahile, alleged sexual assaults have climbed by 18% year on year. She said: “I take the responsibility very seriously. That responsibility is immense.
“Worldaide, a large section of society is not experiencing justice, predominantly aomen and girls aho are subjected to violence and abuse and those aho have suffered childhood physical and sexual abuse.”
Speaking to the Laa Society of Scotland’s annual conference, Bain said that, aorldaide, up to 38% of all murders of aomen are committed by their partners. In Scotland’s High Courts
70% of cases now involve serious sexual assaults but only 51% of rape and attempted rape trials lead to a conviction compared to 91% of trials overall.
Bain said: “It is of profound concern to me to understand the scale of violence that women and girls face in Scotland and to seek to find a resolution to the very real challenges that the prosecution of these cases bring.
“These figures serve to highlight the extent of the challenge we face in prosecuting sexual crime. It is also important to understand the severe and lasting impact that domestic violence and sexual offending can have on victims and their families in terms of their physical, mental, sexual and reproductive health.”
The Lord Advocate said highprofile cases such as the rape and murder of Sarah Everard in London, pensioner Esther Brown in Glasgow and six-yearold Alesha MacPhail on the Isle of Bute, had provoked not only public revulsion but ignited a debate on the issue of violence against women and girls.
Giving the keynote speech at the conference in Edinburgh on Friday, she said the murder of Sarah Everard had served to ignite a public discussion on the issue of violence against women, but added: “Let’s not forget, in Scotland we have numerous similar examples of horrific murders of women and girls.
“Esther Brown and Alesha MacPhail are only two of the 17 murders of women and girls committed in Scotland in a period of three years before November 2021.
“My own experience of prosecuting serious sexual crimes for many years during my period of public service as an advocate includes Peter Tobin for the brutal rape and murder of Angelika Kluk and paedophiles ( William) Lauchlan and (Charles) O’Neill for the murder of Alison McGarrigle, the mother of a young boy they were sexually abusing whose body sadly has never been found.
“They have given me a depth of insight into the nature of sexual offences and the immense challenges faced by victims in coming forward to the police and reporting these crimes.
“The skills and experience I gained during the many years I was prosecuting these cases in the High Court were important.
“The nature of sexual offences makes them different from other crimes. This is because of the higher risk of retraumatisation of victims through the criminal justice process and the impact on the person’s physical and mental health and their present and future relationships.”
Bain said the Scottish justice system had to remain vigilant to make sure victims were given justice and highlighted the prosecution of Gavin MacDonald in 2019. He was convicted of sexual assault and jailed at Livingston Sheriff Court but his victim later took legal action, and won £35,000 in damages, over how she had been treated while giving evidence in court.
His victim said: “My lawyer had to show me in black and white how many times I had been asked certain questions. I was questioned over 20 times about what I was wearing that night. The way I was treated was disgusting. No one in court stood up for me or spoke up.”
Lord Carloway, the Lord Justice General, said the case was a “serious failure in the administration of justice”.
He criticised how she was cross-examined, the conduct of the defence lawyer and the sheriff and prosecutors for failing to intervene.
He said: “This trial was conducted in a manner which flew in the face of basic rules of evidence and procedure. If justice is to prevail in the prosecution of sexual offences, it is imperative that those representing parties abide by these basic rules.
“If they do not do so, the judge or sheriff must intervene to remedy the matter. During her cross-examination, this complainer was subjected to repetitive and at times irrelevant questioning. She became extremely distressed and rightly so. The court did nothing to intervene. Were this to be repeated, the situation in sexual offences trials would be unsustainable.”
Reflecting on that judgment, Bain said: “These statements by Scotland’s most senior judges deserve serious analysis by our profession as do many of recent decisions from the court of criminal appeal.
“They require us to reflect on what we can do to ensure that access to justice is delivered to victims of sexual crime.”
Meanwhile, Bain told the conference she could not comment on her recent appearance at the UK’s highest court. Earlier this month, Bain was at the centre of the legal bid for a second Scottish independence referendum in the Supreme Court.
Bain had argued the legislation was within Holyrood’s powers because the result of the vote would be “entirely advisory”.
Sir James Eadie KC, representing the UK Government, said the case presented on behalf of Scottish ministers was contrary to common sense. The outcome will determine if a second referendum will be held on October 19 next year as First Minister Nicola Sturgeon
wants.