#198 Speak Out Survivors

Suzy: I will start and say I'm Suzy, Suzy Angus, and I'm one of the co-founders of Speak Out Survivors. 

Emma: I'm Emma Bryson and I'm also one of the co-founders of Speak Out Survivors. 

Oona: And I'm Oona Brooks-Hay. I'm a Reader in Criminology at the Scottish Centre for Crime and Justice Research based at the University of Glasgow.

Harriet: And I'm Harriet Wistrich and I am the Director of the Centre for Women's Justice, and I'm also a lawyer who has advised lots of survivors over the years. 

Suzy: I think that what Emma and I had wanted to do initially was just to tell everybody who we are and why we've been campaigning for the last five years. And also just to highlight the issue of what corroboration means, the law of corroboration in Scotland. Because certainly speaking to a number of people from FiLiA and elsewhere, they had no idea what it actually is and how it seems to be a real barrier to justice for people who have suffered rape and sexual assault. Emma, do you want to pick up on that? 

Emma: Yeah, sure. I mean, I think what I would say about Speak Out Survivors is that there are three co-founders, myself, Suzy, and Shirley, who isn't able to be with us today. And the reason we founded Speak Out Survivors is because we are all survivors of sexual violence. 

We all sought justice in Scotland. And we were all told it was not possible for prosecution to go ahead because although there was evidence available in each of our cases, the evidence did not meet the very stringent requirements of corroboration. And from our point of view, obviously we felt that as a massive injustice, and we know that there are an awful lot of women out there who've had exactly the same experience as us. So we really just wanted to use our experience to try to sort of effect some positive change to benefit others in the future. 

Suzy: Yeah, we've been campaigning together since 2018 and we've done an awful lot of lobbying of MSPs, those in the legal community as well in Scotland, plus all sorts of other interested parties.

Actually, I think a lot of those MSPs would agree that we've really made quite an impact in terms of bringing the issue of corroboration to light again, because it has been talked about for a number of years. And we've got a lot of consent cross party in agreeing that actually the issue has to be addressed again.

I mean, not everybody agrees with us, and we've changed our stands quite a lot as well. But I think that, Emma, the three of us have made quite an impact and people know who we are and we are actually asked to comment on quite a lot of issues to do with women and sexual violence, you know, from a number of areas.

Emma: Yeah, I would certainly agree with all of that. And I think that one of the reasons we've been quite successful is because our approach has always been as inclusive as possible. So we haven't just engaged with and listened to the people we think will agree with us. We've also made a huge effort to engage with those who we know perfectly well will disagree with us.

So that's a significant, or it was previously, a significant. portion of the legal community in Scotland and feel very strongly that corroboration is a cornerstone of the Scottish criminal justice system, and we've come across this again and again and again. This is what we get all the time.

If you remove it, it's basically going to cause the collapse of civilisation. And there'll be hordes of women making all these allegations, and innocent men being convicted all over the place. And obviously that's not the case. What we're arguing for is something much more moderate than that.

We understand that corroboration sets a very high bar of the evidence that's permissible under Scots law. And really what we've been arguing for is that that needs to be reformed. So we wholeheartedly agree with the fact that of course there has to be evidence; it has to be good quality evidence; it has to be robust evidence that will stand up in court. 

However, it doesn't need to be this box ticking exercise that corroboration essentially represents, where what you need are two independent sources of evidence that penetration took place for a rape case. You need two independent sources of evidence to show that the victim did not consent to penetration. You need a further two independent sources of evidence to show that the defendant knew that consent wasn't given. And then obviously you need the two, two independent sources of evidence to demonstrate that the person you're accusing was in fact, the person who committed the offense. 

So it relies very heavily either on there being an eyewitness to the events to speak to that, or forensic evidence. And we also know historically that many rape victims don't report these offences to the police immediately.

Forensic evidence is not available as a matter of course. Many victims will take time to process what's happened to them before they report to the police. And all of these factors combine to make it extremely difficult for the vast majority of rape victims in Scotland to get anywhere near a court.

Suzy: And just to add to that briefly, certainly the three of us have discovered that when we reported to the police, we all had very, very different experiences. And actually, it's been widely recognised even by the senators of the College of Justice in in Scotland that not all judges even, or police officers, actually understand and can implement this law. 

So if people don't quite understand what it's meant to do, and these are people who are within the legal system, what hope is there? And that's why we're calling for reform. In my case, it didn't even get to the procurator fiscal because a sergeant decided that some of the information in my case didn't merit it.

You learn these things as you go along as a complainant, but a lot of people will not know this when they start the process within the legal system, if they need to. 

Emma: Can we maybe bring Harriet in at this point, just to sort of give us a bit of perspective from the view from the other side of the border, so from England and Wales. 

Harriet: Yeah, I think one of your strongest arguments probably is that the sky won't fall in because we don't have a corroboration requirement in England and Wales. And in fact, we have an incredibly low rape charge rate for other reasons but not because of corroboration.

There are a whole range of other problems we have in the system. What I would say is although we don't have a corroboration requirement. I mean I can't see how… the very vast majority of rape or sexual offenses will never have an independent witness or CCTV or something.

I mean, forensic evidence you may have, but you may not have, if it's a late report, and obviously you may not have evidence, even if it's an immediate report that penetration was non-consensual. It might be that it took place, but you might not even be able to prove that.

I mean, how on earth you're going to prosecute a whole load of rape cases if you haven't got… if you're not allowing a prosecution at all without corroboration. I don't know. But in fact, what we have found at the Centre for Women's Justice ‒ we did a piece of research on it, which I think I shared with you, Emma, didn't I?

We found that the fact that corroboration evidence has been… is not a prerequisite for charging, in fact, the same problem really, lots of police officers and prosecutors don't necessarily understand it. And we see a lot of decisions, particularly by police… So the way it works, I'm not quite sure it's the same because we don't have procurator fiscal. 

What we have in England and Wales is that the police will investigate and then they may seek advice from the Crown Prosecution Service. If they're not sure it reaches the evidential threshold, they may get advice to follow further lines of inquiry. And then they'll either refer it to the CPS for charging, or they may conclude that there's not enough evidence to refer it for charging. And then we have what we call a victim's right to review process. I don't know if you have that or not. 

Emma: Yes, it’s similar in Scotland. The Procurator Fiscal Service works the same way as the CPS. It's basically the Scottish equivalent of the CPS. 

Harriet: What we find is that, in loads of examples that we looked at amongst the cases we've advised on, often the police are saying ‘Well, we're not going to, we're not going to refer this to charge because it's one person's word against another, and that doesn't meet the evidential threshold.’ So they are making those corroboration decisions, but they shouldn't be, and it's a wrong application of it.

Oona: Yeah, I think what Harriet points out there is really quite interesting about the difficulties of securing corroboration because of course most sexual offences happen in private. They are very particular forms of crime. And therefore, I think there is also an argument for distinctive rules and reform in relation to sexual offences that is different perhaps to other offences.

They are not just distinct in terms of the evidence, but also in terms of the impacts as well, and the traumatic nature of those offences. So I think there's a really strong case for really radically rethinking the way that you treat sexual offences within our criminal justice system. And of course, that's always challenging because I think, as Emma rightly pointed out, that any aspect almost of the existing criminal justice system will be put up as a pillar or a cornerstone of that justice system. 

We see a similar discussion in relation to the role of the jury, for example. And that is something that's being revisited in Scotland in relation to sexual offence cases at the moment. So yes, I think there's a real argument there for distinctive approaches. And I think the fact that it is so challenging to address or reform the criminal justice system, I think is a testament to the work of Speak Out Survivors. Because corroboration is absolutely one of those things that's held up as a cornerstone that’s seen as very fundamental.

So I think the fact that your work has gathered the traction that it has really speaks to the strength of that work. 

Harriet: Can I just ask… So the way a decision is made about whether a case is going to be prosecuted by the Crown Prosecution Service is whether, on the evidence available, there's a reasonable prospect of conviction.

Is that the same test? There's a code for Crown prosecutors. There's a two-stage test, the evidential test, which I've just described, and then there's a public interest test: is it still in the public interest to bring a prosecution? But that, in rape and serious sexual offenses, it will almost always be in the public interest. So it's really the evidential test. 

And the issue that we have come up against is the interpretation of is there a reasonable prospect of conviction? And in fact, we at the Centre for Women's Justice brought a judicial review of the DPP, the Director of Public Prosecutions, because we had identified that they were moving away from what is described as a merits-based approach.

So it's a slightly similar discussion for what you've been talking about. So essentially, if you're thinking, is there a reasonable prospect that a jury will convict, are you thinking about how likely are a jury going to convict in this case? Because frankly, she's not a very appealing witness; he's a young man; we don't want to ruin… whatever those sorts of myths and stereotypes that we know juries follow. 

And it's really important that any kind of assessment of the prospects of conviction is made on the evidence, not on what we call a bookmaker's choice. Which is what are the odds that a jury are going to convict. That is legally wrong. It's been ruled legally wrong in our jurisdiction. 

So what the CPS did bring in, but then they started abandoning with rather appalling results, was what was called the merits based approach. Which is you've got to look just at the objective evidence divorced from any kind of consideration of what jurors might not like or dislike about a particular case or defendant or victim. Even though we know that if you're trying to judge a footballer who plays for Man City, then they're more likely to acquit. But that's clearly not a relevant consideration. 

So anyway, that's an issue. And what we did find from around 2017, 2018, was the charge rate suddenly collapsed, because the CPS were moving away from the merits-based approach. We said that that was… we brought a whole judicial review, which unfortunately we didn't ultimately succeed in. But the publicity around the judicial review we brought, which was a huge case did put a lot of public pressure on the CPS and the government and so on.

So I think that it kind of did work in a way, to sort of try and pull that from that kind of approach and really focus on what can we do to improve the prosecution experience. 

Suzy: Oona, could I ask when you and your team submitted your Justice Journeys research project to the government in 2019, what kind of response did you get from them regarding survivors going through the criminal justice system? I'd just be interested to know what they thought and what you got back because I know that you're doing further research as well.

Oona: So the research that Suzy's referring to there was called Justice Journeys, and this was a research project commissioned by the Scottish Government's Justice Analytical Services. And myself and colleagues, Michelle Berman and Lisa Bradley, at the University of Glasgow conducted the research. And the main aim of the research really was to try and understand survivors’ experiences of going through the criminal justice process in Scotland, right from the point of reporting, right through to the conclusion of the case. Whether that was a case that resulted in no further proceedings or whether it actually went to trial or perhaps conviction.

And, I think for me, it was a hugely interesting piece of research to do because prior to that, I think we had different pieces of research that provided really valuable insights into what happens at different stages of the criminal justice process. But this was really about looking right across the piece at what happens, because ultimately the survivor is the person who goes through that whole process.

It is a whole process and they are a whole person. So rather than just looking at particular punctuation marks in the process, it's all about what actually happens in between those points, particularly given that we know the process can go on for two, three, sometimes four years. The research really pointed to a number of concerns across the process, some of which will be kind of very well worn and I think also reflected in other jurisdictions.

But it also pointed to the real cumulative and compounding impact of going through the process. It's the way that it builds, in terms of survivors and the impact on their dignity, the impact on their wellbeing and issues around trust, communication and so on.

And the findings of that research ‒ we were invited firstly to present the findings to the victim's task force, which at the time was headed up by the Justice Minister in Scotland. And the findings were well received. We also went on to contribute to Lady Dorian's review of sexual offenses. So there was a good reception I would say to the research.

But I think still much needs to be done and we know that change is very slow and incremental. Lady Dorian's recommendations, again, were very well received, but more needs to be done. And we see that start to come forward in the current Victims and Witnesses Reform bill, which was just introduced in April with some really quite radical proposals, some of which draw upon or really complement, I think, some of the findings from Justice Journeys.

So we are, I think, at a point where we're starting to look at much more radical reform in Scotland. So things like, for example, having single judge trials without a jury; having independent legal representation in cases where evidence about a survivor's history or character are to be led; introducing specialist sexual offence courts; and also embedding a trauma-informed approach through the justice system.

So, quite radical reforms on the table; they're controversial. We don't know if everything in the bill will go through, but I guess there's some optimism, I think, for change or at least the radical nature of those proposals. 

Emma: I was just going to come in there about the Victims and Witnesses Reform Bill. There'd been a sort of long term public consultation that took place ahead of that legislation being introduced in April this year. And so a number of reforms were being considered. We were always told… So, Speak Out Survivors ‒ obviously we've been campaigning specifically on corroboration for quite a long time.

But we've also engaged with survivors on a number of other issues, all related. So that's the general experience of survivors going through criminal justice, whether they get a prosecution or not, whether they get a conviction or not. You know, we've had lots of engagement and we've learned an awful lot along the way.

And obviously, we contributed to the public consultation, but what we were always told was that this package of reforms was going to improve victims’ experiences of criminal justice across the board. So corroboration for us ‒ we've always characterised corroboration as the gateway. Access to justice is only. gained by achieving corroboration. If your case doesn't have corroboration, you don't have access to justice. 

The broad figures, and this is an average looking back at the statistics over the last few years, you have a split that roughly 10% of reported rapes will go forward to prosecution, 90% of reported rapes do not go forward.

Now, corroboration isn't the only reason that those 90% don't achieve access to justice. There are other reasons like victim withdrawal. It's quite a complex picture, but certainly that figure of 90% not being taken forward, broadly interpreted, suggests that 90% of sex offenders are not facing any consequences for their actions. 

So, our argument for reform of corroboration has always been it's really important to improve access to justice to enable more victims of rape to see their cases reach court. Partly because, there's a public interest in these serious offenses being prosecuted. 

If you don't prosecute them, the message that sends out to society, first of all, is that it doesn't really matter if we're only taking a tiny proportion through. But it also sends a message out to sex offenders that actually the chances of any consequences coming from their actions are minimal.

And so we were told by the government repeatedly through the process of this legislation being drafted that corroboration was included. So it was, corroboration was a key part of the reforms that were put out for public consultation. And we considered it to be an absolutely key element. If you don't have access to justice, then you are continuing to fail the vast majority of victims.

And right up until… well, November last year, Suzy and I last had a meeting with the justice secretary at that stage, who was Keith Brown. We were told that corroboration was to be included, that the government at that stage were actively engaged in looking at how they were going to implement it.

So from that meeting, we had good reason to be confident that it was going to go ahead. And one of the things… we put forward our own proposal for reform of corroboration. Keith Brown had said to us that this is something they were specifically looking at, some of the suggestions that we have made, which have more recently been echoed. 

The Lord Advocate recently made a statement about the fact that they're looking to allow corroboration of distress to corroborate the act of rape. Now, this is something that we put forward in our proposal back in 2021. Some of the comments made in the senators of the college of justice submission again, echoes exactly what we've been saying as long as we've been campaigning. So we're not saying anything that doesn't have the backing of members of the legal community, certainly with regards to access to justice. It is widely recognised how important this is.

And to be then told in April that, all of a sudden, corroboration was dropped. It didn't even get a mention. The government, having done all the legwork right up until the end of… I think of Nicola Sturgeon's administration, there seems to have been a reconsideration under the new first minister and corroboration has been dropped.

So what we now have is a Victims and Witnesses and Criminal Justice Reform Bill that is only going to benefit this minority of rape victims. And we object to that. We have really deep concerns about that. I'd agree with some of what you said, Oona, about… There are some radical suggestions in there, but some of them, we don't think are necessarily radical in a good way.

The idea of specialist courts that the government's proposing, that the general consensus seems to be that they will sit at a lower level than the high court, which means they won't have the same sentencing powers, and rapes will be effectively downgraded in terms of how serious an offense they are.

And there are elements of the reform bill that we do welcome. The removal of the not proven verdict, another archaic centuries-old piece of law that has no place in a criminal justice system, likewise corroboration, a centuries-old archaic piece of law has no place. We always viewed those as kind of two key elements of this proposed legislation and they've dropped the key part, obviously the corroboration.

I apologise because I'm starting to waffle slightly now. 

Oona: Can I ask Emma ‒ it's hugely disappointing that the corroboration element has been dropped from the bill, after a huge amount of work and, I think, encouragement or encouraging signs around the work that have been done on that. Did you receive any explanation or follow up around that happening? 

Emma: It's sort of in progress in that we have been… we initially received an email from Angela Constance, who was the new justice secretary, and she sent us an email. Basically, this is on the day that the bill was published, so we had no prior warning of this. We were waiting for the government to update us.

And the only update we got was on the day that they published it ‒ and it clearly didn't include corroboration ‒ so we got an email from Angela Constance to say ‘Oh, it's not in there.’ And then some very vague statements about how they were possibly going to scope out further areas of research.

Now, over 13 years now, so if we go back to the Carloway Review in 2010, which is when corroboration was first put under the spotlight, there's been any number of really significant, important pieces of research done by respected… It's been looked at from every angle already, so it really doesn't need any further research. Not in our view anyway. 

Harriet: You need to really push them and do some political work on that, I would have thought. I just think there's one really interesting thing you said earlier, which is that only 10% of reported rapes will be prosecuted. The figure in England and Wales is about 3%. Much lower, even if you don't have the corroboration requirement.

So it will be interesting to understand why it's better in Scotland than it is in England and Wales. It may be that there's a lot less rapes reported generally. But from our point of view, as well as the fact that we think that the prosecutors were applying the wrong test ‒ that was part of the basis of our challenge ‒ we have a pretty appalling attrition rate. Which is the rate by which women drop out at various stages during the process, which I expect you looked at, Oona, in your report. 

And one of the reasons ‒ and this is another area we've done a lot of work around, and I'd be interested to hear what you have in Scotland ‒ is because of the way in which the victim feels as though, they are the ones being investigated, not the defendant. And that means, for example, there's a huge issue around requests for data, personal data and third-party materials, which could be anything to do with your personal history. And feels like a huge invasion of privacy even before you've got a case off the ground.

And then obviously there's issues about past previous sexual behaviour, which we do have theoretically lots of safeguards in relation to questioning around that, which clever defence lawyers are sometimes able to get around in different ways. But the prospect of that is obviously something that's problematic but it's also just the really deep seated ways in which rape myths and stereotypes sort of pervade the whole system. 

Well, anyway, we’re actually just in the process… we've got a very big consultation at the moment with the Law Commission of England and Wales around sexual evidence, which is looking at a lot of these issues.

We're looking at issues around the way these cases are prosecuted. Another really interesting issue that we're doing some work around is bad character evidence and in what circumstances you can reference the fact that a defendant has either previous convictions or propensity to behave in a way which is suggestive of the fact that he may have raped this particular woman in a particular way. And looking at the very strong limitations in bringing that evidence forward and so on, and whether there are different ways of interpreting that. 

We are also trying to argue for independent legal representation and advice. Not across the board. We're not saying that complaints should be represented in court, but we are saying that there should be, in relation to certain types of issues, which would include requests for disclosure and previous sexual behaviour evidence, that survivors should have entitlement to representation around that area. So, there's all sorts of different things that we're looking at as well in our jurisdiction. 

But I do think it's interesting and I'd be interested to hear why you think you've got better rate of prosecution than we have, even though you've got corroboration.

Oona: I think all of that is really interesting. And some of the issues that you mentioned there are very similar in Scotland, albeit that we might be at a slightly different point in relation to them. I think our rates now of prosecution, I think of all rapes and attempted rapes reported to the police, I believe that the number being prosecuted is now down to around 7%.

And of those cases that are prosecuted and go to court, only around 50% result in a conviction. So really, we're looking at less than 4% of rapes and attempted rapes being reported to the police resulting in conviction. So that may be slightly higher than England and Wales, but I don't think that's a success story.

Harriet: Yes, a higher conviction rate, that's one of our arguments. It is actually because they really cherry pick the cases they're taking forward, they are the ones that are more likely to end with a conviction. What we're saying is you should be putting more forward. It shouldn't be… anything above 50%, you should be putting forward at least. 

Emma: I mean, arguably, corroboration works as that cherry picking exercise, because if you're only taking forward the cases that meet these very stringent requirements for corroboration, that means only the very, the strongest cases are getting through. So I think there is a similarity there. 

And I'm interested in the conviction rates though. I think that disparity of the prostitution rates is interesting, certainly it appears that Scotland has a better a better record on that. But I think, broadly speaking, there are significant issues on both sides of the border.

One of the things we wanted to talk about as well was Operation Soteria, because that seems to be delivering demonstrable results in terms of the number of prosecutions and the number of convictions. And I know that both of you, Harriet and Oona, been involved in this, so I think it might be interesting to… Maybe, Oona, could you tell us a little bit about what you what you've been doing then, Harriet, if you can give us your expertise on that as well. I'll be really really good to hear.

Oona: Yeah, sure. To explain a little bit about Operation Soteria, it's a Home Office government funded project that brings together academics and police forces to try and transform the police response to rape and sexual assault in England and Wales.

So it's a very large project, the first of its kind, real potential for change. It's now just about to go into its third year, but the first year was really spent by the academics doing quite intensive work in a select number of police forces in England and Wales, really drilling down on the detail of exactly how the police do their work around sexual offences.

And then working with the police and also the third sector to develop various tools that would form part of a new national operating model for the police in terms of how they handle sexual offences. And the first part of that was just launched back in June, July there. So, it's very early days for the project, I would say, in terms of being able to measure results, but it really is about transforming that police approach. 

So to give you some ideas about the principles behind it, one key thing would be about being suspect focused rather than victim focused. Now this seems obvious, but what we found is that there so often is a focus on the victim in terms of her credibility, in terms of her behaviour, in terms of what she did or didn't do, rather than the police investigating what the suspect did and what their behaviours were and starting to really proactively and more robustly investigate that behaviour.

And on the victim-survivor side of it ‒ the particular aspect of the project that I've been involved in ‒ is as part of the team looking at how the police engage with victims. So through that work, we've been developing tools like a victim communication toolkit that's gone into the national operating model to try and improve the way that the police communicate with victims. 

But also looking at developing a memorandum of understanding between the police and ISVAs, or Independent Sexual Violence Advisors, usually based within the third sector. So it's about trying to improve the way that the police work with those agencies who are so crucial to providing support to survivors and improving the response that they receive. So that's a kind of broad overview of the project and of course Harriet might want to share her particular experience with it.

Harriet: Yes, this is another colleague who's been doing a lot of work on it, that you may have come across. But as I understand, the stuff that's really interesting from our point of view relates to the investigation process. And, as you say, it's not rocket science, as they say, that you investigate the suspect, not the victim, but that is the underlying principle of everything in Operation Soteria.

And it is really trying to look at, let's find out who this suspect is. What else has he done? You know, is there intelligence on him? We see so many cases of men who have been reported numerous times and they're not joining the dots, those sorts of things.

Or has he got other bad character in relation to, or other form in relation to his treatment of women in other ways? Those sorts of things. So, I think it's really about just concentrating resourcing on digging around about the suspect and actually building a case against him. Rather than trying to think about any possible thing that might undermine the prosecution, which seems to be the kind of practice that together with all sorts of myths that creep in with police officers when women come forward to report. 

It all really depends on how much this is rolled out and taken forward across the board and having the specialism there and the commitment from, obviously, police investigators and then working in partnership with prosecutors with those objectives in mind. And actually, I think from the point of view of policing, if you actually want to go into the police, because you actually want to bring criminals to justice, then it's actually quite rewarding to actually be investigating perpetrators. 

Suzy: Could I just come in there, please? I was going to ask Oona more about potential training within the police in Scotland, because a few years back, I actually I took part, as part of police training, being a survivor and it was led by Rape Crisis.

But the officers that were filming me and listening to me afterwards ‒ they were seasoned officers and they were completely surprised at some of the points that I had made about how difficult it was to report. But also just simple things like getting no caller ID coming up on your phone, wherever you are, how triggering it is, and sort of simple, small things that really further training should help negate. Because I couldn't believe the officers, who were well into their fifties, had no clue about that kind of thing where a survivor is talking about her case. 

So it was a bit of an eye opener and I'm just wondering ‒ I know resourcing is always very difficult ‒ but I'm just wondering and hoping that the police are getting more targeted training in this kind of area across the board, England, Wales and Scotland. But, Oona, you might even have more knowledge of that in Scotland. 

Oona: I think that point about training, it's hugely important and ultimately when I think about training, I'm also thinking about organisational culture which I think is hugely important as well.

We've spoken a lot so far about system reform or procedural form and legal reform in process, but we know from previous experience of legal reform, it doesn't always deliver the intended outcome. We've seen that in Scotland, certainly in relation to sexual history and character evidence, and Harriet mentioned that earlier on, it’s also an issue in England and Wales. But legal reform is only going to be as good as the people that actually implement it.

And we can think about reform at the more kind of radical system level, but I think we also have to pay really careful attention to practice ‒ day-to-day practices ‒ and processes. And I think that the example that you give there about an unknown number coming up on your phone and the distress that can cause ‒ I've also spoken with survivors who have been in the middle of the supermarket with a child and they get a call to say the case is no longer proceeding or so on. And these things, which are perhaps, to borrow Harriet's phrase, not rocket science makes such a difference to how that the survivor experiences the criminal justice process.

And within Operation Soteria that we mentioned earlier, one of the principles that underpins the victim engagement aspect of our work is the idea of procedural justice, which essentially is about fairness of process. So it's about looking not just at the outcomes of the criminal justice system, important though they are, but it's about the actual process and the actual experience of survivors going through that process. Because we know that sometimes you may even have a conviction, but a survivor might still not feel that they really accessed justice because the whole trauma of going through the system and the length of time that that took completely overshadows the end result.

I think it's a really important point and training has got to be kind of fundamental to that. It's just so important. And I think to hear experiences of what that is like from a survivor's perspective is just crucial because ultimately officers, although they might be taking a victim-centred approach, are ultimately focused on prosecutions and convictions and so forth.

And I think when you're embedded in a system, it’s very difficult to see what it might be like on the outside of that system and how intimidating, how confusing or how alien that might be. 

Suzy: I think we've maybe got about another five minutes left, that would allow Harriet to get to her next meeting. I don't know how people want to…

Harriet: I was going to say, just picking up on what Oona was saying, the reason we exist really as a legal charity is because often the laws are there and they're fine. It's the implementation of this problem. And so what we seek to do is, where we see that, for example in relation to corroboration is a good example. We don't have the corroboration requirement, but we see it still being applied all the time. So we are bringing legal challenges around that when it's being used, for example. Or with unreasonable, disproportionate requests for personal data, we might bring a challenge around that and so on.

And I think also the other point is about police culture, which has been under the spotlight somewhat lately, kind of very high levels of misogyny and police perpetrated abuse. And if you've got that culture that's been enabled to thrive. You know, it doesn't give you a great deal of confidence that the people who are going to be investigating sexual violence and rape are necessarily free of that culture, even if they're not directly the purveyors of it.

Challenging policing culture and transforming policing culture has to be part of the exercise as well. And training has to be really meaningful, and you need specialist investigators. Another issue that we, we've that, that we come across quite a bit is that rape and sexual offenses often happen within relationships where other forms of domestic abuse, coercive and controlling behaviour etc., is taking place.

And because we have specialist rape investigators and prosecutors, what tends to happen, because the rape bit is tended to be seen as the most serious, they separate these things off. And so the rape gets investigated and then often dropped because it's so difficult to prove and doesn't pass the evidential threshold they leave out all the other stuff. And you've got to have a holistic approach where you look at the whole pattern of behaviour and sexual violence as being one part of that pattern of behaviour when you're looking at prosecuting and you don't drop that pattern because that's critical really.

Emma: I think what we would all agree on actually is that there are so many inconsistencies across the board, in many cases there's the theory of what is supposed to happen and victims’ experiences on the ground often bear very little relation to that, and again, victims’ and survivors’ experiences of the process can be really confusing. They don't understand what's happening; information isn't given in a timely fashion; and they end up feeling sort of surplus to requirements. 

It's like once you've given statement to the police, it's as if the process just carries on and you're left in that same place, just waiting and waiting and waiting to be updated or to find out what's happening or for something to happen.

And it is a really difficult and retraumatising and in many ways dehumanising process for victims and I think there's a long way to go, a long way to go. 

Oona: It's interesting actually and some of the research that I'm doing currently is around survivor views and experiences of sentencing in sexual offence cases. And there's relatively little research around this specific aspect of the system. 

And what's really quite interesting is that even at that stage in the process ‒ so survivors have been in the system for years ‒ even at that stage in the process, what we're hearing is that survivors often don't know much about what the sentencing options are; what the outcomes will be; what rights they have or not to attend the sentencing hearing; and if he does receive a prison sentence ‒ which he almost always will in a rape case ‒ what actually happens in prison. Will there be any education? Will there be any rehabilitation? What happens? And it just seems remarkable that someone can get to that point in the process and still not be given adequate information about what happens.

So I think I absolutely agree about how much there is still to do, but I guess if we can take any heart it’s the fact that the Scottish Courts and Tribunal Service have commissioned that research. So that suggests that there is an open door, and that ears are open to hear the kind of perspectives of survivors.

Suzy: That seems like a positive note to end on, maybe. Was there anything else that anybody else wanted to bring to the discussion that we haven't covered yet? 

Oona: I think the only other thing I would add ‒ I think there's like so much I could say in response to some of what Harriet said about sensitive materials and all the rest, but I think you've already covered that.

The only other thing I think we've perhaps not mentioned is the issue of delays. And the length of time that the process takes, and I'm really, really concerned about that. There were delays before the pandemic; they grew during the pandemic, and that backlog does not seem to be going down, if anything, recent figures suggest that it's increased.

And that's just so worrying, because I think no matter how good a process is. If it's going on for two, three, four years, that's not justice. I don't know how that can ever be justice for the accused or for the victim-survivor going through that process and the way that their life is on hold for that. I mean, it's just a dreadful situation, I think. 

Harriet: It is, it’s a big problem here, and we know cases as long as seven years that someone's been waiting for various reasons, things have fallen through. There's one thing that I just wanted to ask you about, which is around the juryless trials proposal, which I mean, that's the one in England and Wales where everyone would go bonkers and say the sky will fall in. We did that. What are your views on that proposal? 

Emma: I think I would say, Suzy, you might have your own view on this, but I think my view has always been that in theory having juryless trials is a good thing, because we know that juries buy into rape myths and stereotyping and often don't understand the process of the trial and their decision-making process can be problematic. The idea of having single judge led trials, however, I think Suzy would agree with me, that we have really deep, deep concerns about this. 

Suzy: There have been a number of cases recently as well, where the law has only permitted the judge to give, for instance, community service and that kind of thing, depending on the age of the accused.

I think I'm torn, actually, in terms of juryless trials, because I know that even higher-up legal people in Scotland have agreed that there are such things where, as Emma's just pointed out, depending on who the complainant is, people will have different views about what type of victim you are.

You know, there's always a layer of ‘Oh, are you somebody who deserves justice more than somebody else?’ It's like the deserving poor. So you know, you never know who you're going to get in the jury. However, there's also a breadth of expertise in life experience within juries that could come into play in a positive way. So, I'm kind of torn with that, but I would rather see three judges, as part of that kind of system. Although having spoken to some MSPs recently, they think that would never happen anyway because they're just aren't the resources or the time for that. So we'll see how the pilot goes. But I'm a bit queasy about it, I have to say. 

Emma: I think it's worth pointing out as well that the legal community in Scotland are up in arms about it and prepared to boycott it. So, it'll be interesting to see how that unfolds. What do you think, Oona? Have you got a view on that. 

Oona: I would really like to see the pilot go ahead. I'd be really interested to see the outcome of that. Whether it will go ahead, in what form, is not entirely clear because, as you say there's been a great deal of resistance to it, but I think I'm really interested to see what that would look like. I think juries are hugely problematic in these cases, so yes, I'm really open to seeing that pilot go ahead. 

Suzy: Hasn't there been quite a lot of research into juries in England and Wales surrounding this? I know that there was research carried out fairly recently about juries, but they weren't real cases as it were, the jury research in Scotland. 

Emma:  So just for context, the jury research in Scotland set up, I think something like 96 mock trials. So they were set up and treated as if they were real trials by the participants. And I think that that was published 2019, I believe, possibly 2020, but that was quite an interesting piece of research as well. But that very much highlighted the fact that juries do buy into rape myths and stereotypes and have difficulty following trial instructions and this sort of thing. 

Harriet: Yes, it's one of the questions on this law commission consultation as well. I think people are kind of anxious about it, but I think there are alternatives to judge only which aren't juries, you know, expert assessors sitting beside judges or some sort of combination and obviously in Europe, some European jurisdictions, they have different system. And so I certainly think it's worth exploring as a pilot. But I think the legal establishment will be completely at arms about it. 

Oona: Yes, absolutely. Judge led panels would be, I think, my ideal preference. Because I think we've all got to think, if it's a single judge trial, we have to think how representative our judiciary are of the communities they serve. So I think that is an issue.

Emma: There was a really high profile case in Scotland not that long ago where a young lad ‒ well I say young lad, he was in his early twenties ‒ was convicted of rape and the judge ‒ and this was based on sentencing guidelines ‒ but the judge sentenced him to 270 hours community service, despite the fact that he raped a 13-year-old girl. And I think that single case, whenever I hear the phrase single judge led trial, that is the one that comes to mind because we can't exclude the reality that judges come with their own prejudices and assumptions. And how can we have faith that every single Judge will treat every single case in the same way? And again, that comes back to the inconsistencies.

I think any process that can be made to be more survivor and victim friendly, so that the victims have a better chance of understanding the process and understanding maybe what the guidelines are, so sentencing, for example, what to expect along the way, and that all the professionals involved in that process also abide by these guidelines or expectations, that it would be an improved process. But I think what we have at the moment, like I say, still has a long way to go. 

Oona: Well, there's a new victims commissioner coming in. You know, so we'll see how that pans out. 

Emma: Is there anything else that you wanted to cover, Oona or Suzy? Anything else we can add to that? 

Oona: Not for my part, I don't think. 

Emma: Do we need to wrap up Suzy with anything in particular? 

Suzy: I think I would just like to leave with my favourite quote from the Senators of the College of Justice after the review into the consultation. And you know, we've been talking about getting access to justice and they are saying that corroboration is actually acting as a barrier to justice and is, and I quote ‘of a sort not found in any other comparable legal system’. And I think, well, there you go. 

Emma: And that's exactly why we need reform, and it's also exactly why, despite the fact that we didn't get corroboration over the line this time, we're not going anywhere, we'll carry on.

And, eventually, I do think it's inevitable, I think the reform is inevitable, how long it takes is another matter altogether. But, you know, we're in this for the long haul, we always have been. We're best part of six years in; we're not going anywhere.