5 th North East Conference on Sexual Violence November 2011 Independent Legal Representation delivering justice or just raising expectations? Fiona Raitt Dundee Law School

Delivering justice ILR 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  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 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  and search “Disclosure Manual”  Full guidance on medical records [2011]  0on%20Sensitive%20Personal%20Records%20Policy %20%20Web%20Version%20- %20Final%204%205%2011.pdf 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