Victims need protection – but we also need make sure justice is done

By the time Cummings came to trial, he was an old man. And in testing Ann Robertson’s evidence against him, Cummings’s QC did what defence lawyers have been doing since year dot in sexual offence cases. He trained tremendous fire on the credibility and reliability of the witness, catching them in inconsistencies, painting their evidence blacker than black.

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It is difficult to conceive just how mortifying it must be to speak about such hard, intimate things in public, having taken the oath, required to answer on pain of a finding of contempt. Even if the judge calls for a closed court, even if she clears out all the unnecessary members of the public from the gallery, the witness still faces a wall of at least 20 eyes, all trained on them, and hanging on each word which falls from their lips.

In the formal confines of the court – with its airless, unfamiliar, watchful atmosphere – witnesses must verbalise explicit physical details about what happened to them, how and when. There can be no euphemisms in the witness box, no evasions there. The process of law is unsentimental. It needs to get the detail right. Increasingly, witnesses are beamed in via video link.

But that day in Edinburgh, the detail proved too much for Ann Robertson. She broke down, and made to flee the court room. When she was returned to temporary judge Roger Craik’s court, he decided to remand her in custody. “Maybe a night in the cells will calm you down,” Judge Craik allegedly told her, as he discharged her into the custody of Lothian and Borders Police, with instructions that she should be medically examined and returned to court the next morning.

Robertson completed her evidence the next day, the charges based on her testimony were dropped, and the treatment the justice system meted out to her prompted instant political outrage in Edinburgh – now entirely forgotten in the constant churn of dirty washing which political coverage so often becomes.

When Cummings’s trial concluded, he was convicted and jailed for a string of offences against two other girls. And as for Ann Robertson? The Lord President of the day upheld her complaint against the trial judge. Lord Hamilton concluded that jailing Robertson “must have been traumatic” and “was, in the circumstances, disproportionate”. There’s a sadder conclusion to this story. Ann Robertson was found dead in her Yorkshire home later in the summer of 2009. She died of natural causes.

But Robertson’s story has been one of these cases which has stuck with me. I must have read hundreds of criminal case reports since I first cracked open the leather-bound volumes as an undergraduate lawyer, keeping an interested eye on the appeals roll and the court reports. Sometimes it is a human detail which snags a case in your mind. Sometimes – as in this case – it is the manifest brutality of the justice system which etches the case in hot red letters in your memory.

So you will understand why I thought about Ann Robertson this week, when Rape Crisis Scotland published an open letter to the Crown Office. The working relationship between Scottish prosecutors and Scotland’s women and sexual violence charities has thawed considerably in recent years, as successive Lords Advocate have been responsive to demands for better training, better communication, and better decision-making in sexual offence and domestic abuse cases.

But that détente seems to have suffered a setback, with news the Crown have embraced a new policy, which in the words of the Rape Crisis national co-ordinator, “will compel rape complainers to give evidence or risk a warrant being issued” for their arrest, dragging them to the court, to speak to their allegations. If you accept what happened to Ann Robertson in 2009 was traumatic and disproportionate, it is difficult to disagree with this assessment.

Contrary to some public perceptions, there is no concept of “pressing charges” in Scotland. In principle, it is the Crown’s case, not the complainer’s. The public interest and the personal interest might not always coincide. But the notion of issuing warrants and dragging complainers to courts makes me decidedly uneasy.

Fifty-nine per cent. According to the latest Scottish Government figures, this was the acquittal rate for rape charges prosecuted in Scottish courts last year. Some 251 people were indicted for the most serious sexual offences during 2016-17, and 149 of these men were acquitted. Around 70 per cent of accused people were acquitted on “not guilty” verdicts. Just under a third of cases were found “not proven” by juries.

More and more, Scotland’s criminal courts are preoccupied by sexual offences. Reports to the police are on the rise. Police referrals to the Procurator Fiscal are increasing. Scottish prosecutors are indicting more and more cases for trial. Ten years ago, just 119 rape allegations reached Scottish courtrooms. Today? That figure has more than doubled. But against this backdrop, conviction rates continue to lurch between the 40-60 per cent range they have wobbled between throughout most of the last decade. Due to the uptick in the number of prosecutions, the numbers of convicted people finding themselves behind bars for sexual offences has increased, even as conviction rates have been on the slide.

This unhappy development follows a week in which Emma Bryson waived her right to anonymity in The Scotsman to criticise the Crown Office for failing to take her case to law. Bryson told them she had been a victim of historical sexual offences during the 1980s. But when the Crown Office weighed the case file, they found it wanting in one particular detail – corroboration. The problem? However credible or reliable prosecutors may have found Ms Bryson – there was no second source of evidence which could back up her testimony. And where there is no corroboration in Scotland? There is no criminal case.

In a toughly worded article, Bryson criticises defenders of corroboration who maintain “it protects people against false accusation and prevents miscarriages of justice”. Her argument is stark. “Is that really what the criminal justice system is intended for?” she demands. “Shouldn’t its priority be to protect the victims of crime, to prosecute those responsible and to actively deliver justice?”

Well, yes and no. On a personal basis, you can only understand the anguished frustration Bryson expresses – but her argument takes us into disturbing places which should be unapologetically resisted. Take the requirement for proof beyond reasonable doubt. What does proof beyond reasonable doubt do for victims? Doesn’t this high threshold for criminal liability essentially protect the guilty? Doesn’t it let folk who are probably guilty of terrible crimes off the hook? Undeniably.

I don’t point out these problems with her arguments to be mean or to be unduly critical of Ms Bryson. I agree with her – there are important questions which defenders of corroboration must answer about its implications for crimes which take place in private. But this kind of for-me-or-against-me logic has no place in our thinking about criminal justice.

Morally, ethically, our system cannot afford to brutalise complainers like Ann Robertson but nor can it afford to reconceive itself only as the victim’s shield and sword. Criminal trials must be about the complainer, but they’re also about the accused’s most basic liberties, and the social stigma which attends conviction for the most serious crimes. These aren’t interests we can legitimately dispense with. The justice system can’t be categorically for the victims, and against offenders, when its basic function is to establish whether either of these contested tags attach to complainers who testify and people they accuse of wronging them. Zero-sum thinking helps us nothing here. We need humanity, and we need justice.