Why women in Scotland are still facing obstacles accessing justice

From removing the not-proven verdict and a looming judge-only rape trial pilot, a plan that has been met with fierce opposition, to incoming legislation trying to tackle misogyny, there are lots of pieces of policy slowly slotting together to create change.

Scotland’s justice system has always been distinct within the four nations, and is devolved to the Scottish Parliament, and campaigners say that the recent approach by Holyrood has been the “boldest in the UK”.

But it comes at a time where justice for women feels few and far between, with the failings of the system coming to light around the killing of Emma Caldwell, whose murderer was sentenced last week after a 20-year fight.

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Ian Packer, 51, is appealing the ruling, after it took years of campaigning by Emma’s family and other women he had targeted to get the police and courts to listen. Emma’s mum Margaret, who campaigned fiercely for justice for her daughter, blamed “misogyny and corruption” for the failings. An inquiry was confirmed on Thursday afternoon.

Down south, we heard of the horrors of the review following the murder of Sarah Everard at the hands of serving police officer Wayne Couzens.

Rape convictions, of those cases that do manage to make it to court, are devastatingly low, and backlogs caused by the pandemic are still having an impact, with women waiting years for their case to be heard.

The latest figures from Police Scotland showed a 2% increase in sexual crimes, from 14,640 to 14,894, an 8% increase from 2019. In those figures, rape and attempted rape increased by 1%, from 2530 to 2545 crimes, up 3% from 2019. 

In a bleak picture, Scotland is trying to lead the way, but wading through muddied waters.

“There's a real momentum to do something about misogyny and about the experiences of women in their daily round and about how this has to be addressed,” Baroness Helena Kennedy told The National.

Her review two years ago calling for new offences to be created in Scotland to tackle misogyny was taken on board by ministers, with legislation slated to appear before Holyrood by the end of 2024.

“If we're going to deal with the crimes that women face, and I think there's a commitment to that and it goes across the political parties. I do think things will be done,” she added.

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“The question is, how far will they go, will they be cautious and all of that.

“The interesting thing is that Scotland has always actually been ahead of the curve on stuff to do with women.”

Kennedy (below) cited fierce female campaigners such as sex workers who raised the alarm about trafficking in their industry, disability campaigners and women from across Scotland who have pushed for reforms and access to justice in regards to zero tolerance on domestic abuse.

The KC said this had much more traction in Scotland than elsewhere in the UK.

“I think it's because of a highly informed and political population,” she added.

“A population that knows that by protests, by getting together to collectively argue for change, and women have been good at that in Scotland and very vocal.

“Given this sort of direction, I think Scotland will end up being much more radical in the changes it will be prepared to make than England and Wales.”

Sandy Brindley, chief executive of Rape Crisis Scotland, agreed that Scotland is going “in the right direction” with reforming its justice system and credited Lady Dorrian’s review of sexual offences, published in 2021.

Dorrian, Scotland’s second most senior judge, put forward a wide number of recommendations that were encompassed into the Victims, Witnesses and Justice Reform (Scotland) Bill, currently making its way through Holyrood. Dorrian called for a new specialist court to be established to deal with serious sexual offence cases among other sweeping reforms.

“I think this was the best review and the boldest in the UK,” Brindley told The National.

“I mean, every part of the UK has done a similar review. I think the one in Scotland was the most comprehensive and it had the most transformative approach.

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“I do welcome that and I welcome the legislation. I think some of the misogyny legislation, we haven't seen it yet, but from what I understand I think that could be quite radical.

“What's radical is that it actually names women and offences based on women's reality so I think that’s really positive.”

Kennedy agrees that this is one of the issues, that what misogyny is and the impact it has has to be brought into the light.

She explained: “Misogyny is not about hating women – it’s about believing that women have a place which is secondary, it’s about the primacy of men and a sense of entitlement that has come with that, and it's very hard for men to surrender it.”

While the draft bill has not yet been published, the Scottish Government has previously committed to introducing five new offences to tackle this issue.

This includes an offence of misogynist harassment, an offence of misogynistic behaviour, a statutory aggravator of misogyny as an addition to existing crimes, an offence of threatening or abusive communications and an offence of stirring up hatred against women and girls – online or offline.

Despite the low number of rape convictions in Scotland, Kennedy disagrees with the looming judge-only rape trials, that have been supported by victims organisations and campaigners.

“It will not solve the problem,” she argued.

“A lot of women will end up not getting justice that they think they’re going to get from that very narrow group of people who end up being senior judges, who’s experience of life is not the experience of life of an awful lot of people who live in other classes within society.”

Brindley (above) meanwhile, does support the pilot, and argues that a new approach has to be taken somewhere.

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“We have been tinkering around the edges for decades to try and improve the survivors' experience of the justice process with very little success,” she adds.

During a recent evidence session to Holyrood’s justice committee, Lord Advocate Dorothy Bain revealed damning figures for single complainers in rape cases as opposed to multi-complainer cases. While 51% of multi-complainer cases that make it to court result in a convictions, compared to a 91% overall conviction rate, this drops significantly to between 20% and 25% for single complainers.

“I think when you look at that you're in the context of these are the cases that get to court, the vast majority don't get to court, what you can see from that is that people in Scotland who have been raped have a very slim chance of justice,” Brindley added.

The Scottish Government has been contacted for comment.