Investigation and prosecution of sexual crimes: review

Annex A – Criminal Law And Procedure

Criminal Procedure

There are two types of criminal procedure – “solemn” and “summary”. In summary procedure, a trial is held in the Sheriff or Justice of the Peace Court before a judge without a jury. In solemn procedure the trial, whether in the High Court or the Sheriff Court, is held before a judge sitting with a jury of 15 people.

Solemn Procedure

Solemn proceedings generally commence with the accused person appearing in court “on petition” or being “placed on petition”. The petition is the initiating warrant in such proceedings and sets out the nature of the criminal allegations. When the accused first appears at court, the most likely outcome is that s/he will be “committed for further examination” ( CFE). The accused will then either be released on bail or remanded in custody. If remanded, the accused must be brought back to court within eight days, ^[124] when the most likely outcome is that accused will be fully committed ( FC) for trial. Again the accused may either be released on bail at that point or remanded in custody, pending trial. ^[125]

High Court

Time limits apply to all solemn cases prosecuted in Scotland. Time limits regulate the maximum length of time that can elapse between the first time a person appears in court charged with an offence and the start of their trial on that charge. Failure to comply with time limits has serious consequences. Time limits for cases prosecuted in the High Court are different for accused persons on bail and those who are remanded, as follows:

Custody

If an accused person is remanded in custody, the prosecution must serve an indictment – the document narrating the charges, witnesses and productions for the case – on the accused or their legal representative within 80 days of FC. ^[126] The indictment provides the accused with notice of a Preliminary Hearing ( PH). The purpose of the PH ^[127] is to determine the state of preparation of the defence and the prosecution and ensure outstanding issues are resolved before trial. The PH must be held within 110 days of FC ^[128] and not less than 29 clear days after service of the indictment ^[129] . The trial is fixed by the court at the PH ^[130] and must commence within 140 days of FC. ^[131]

Failure to adhere to any of these custody time limits results in the accused being granted bail and released from custody. ^[132]

Bail

If an accused person is CFE’d on bail, the prosecution must serve an indictment on the accused or their legal representative no later than 10 months after the date of the accused’s first appearance at court ^[133] and not less than 29 days prior to the PH. ^[134]

The PH must be held within 11 months of CFE ^[135] and the trial must commence within 12 months. ^[136]

Time limits in solemn custody cases run from the date of the FC, whereas time limits in bail cases run from the date of the CFE.

In all cases, if the 11 and 12 month bail time limits are not complied with, the proceedings come to an end and the accused can never be prosecuted on those charges. ^[137]

Legal Considerations

Corroboration

A distinctive feature of Scots law is the requirement for corroboration of evidence in criminal cases.

Corroboration was described by Lord Carloway ^[138] as:

“There must first be at least one source of evidence (i.e. the testimony of one witness) that points to the guilt of the accused as the perpetrator of the crime. That evidence may be direct ^[139] or circumstantial ^[140] . Secondly, each “essential” or “crucial” fact, ^[141] requiring to be proved, must be corroborated by other direct or circumstantial evidence (i.e. the testimony of at least one other witness).”

Generally, there are two crucial facts requiring proof in every crime: (1) that the offence was committed; and (2) that the accused committed it.

Corroboration is particularly problematic where the crime occurs in a private setting, as is very often the case with sexual crimes, as it is unlikely there will be any other direct eye witness evidence to support the victim’s account of what happened. The prosecution will, of course, explore all possible avenues of evidence to provide corroboration, for instance: forensic/medical/scientific evidence; CCTV evidence; digital evidence from phones/devices/computers; any admissions made by the accused; any circumstantial evidence.

In many cases the prosecution will seek to rely on the application of mutual corroboration, known as the “Moorov” doctrine, and/or evidence of recent distress to establish a sufficiency of evidence.

Moorov Doctrine

The most complex aspect of the law of corroboration in modern times is mutual corroboration, or corroboration by similar facts, referred to as the Moorov doctrine, after the case of Moorov ^[142] in 1930. The case was concerned with the sufficiency of identification evidence where a number of women, who all worked in a shop with the accused, gave evidence that the accused had committed indecent assaults on them.

No act of indecency was witnessed by any other witness, yet it was held that each separate act, spoken to by one of the women, could be corroborated by the testimony of another women speaking to another such act; provided both incidents were sufficiently closely connected in time, character and circumstances. In such circumstances, the separate acts are treated as a single course of conduct. It is that course of conduct, if demonstrably perpetrated by the same person, that requires to be proved by corroborated evidence and not each separate incident. ^[143]

This area of the law has evolved and consideration of whether the Moorov doctrine is applicable is often the pivotal question in many trials involving charges of a sexual nature. What constitutes a course of conduct is the subject of a substantial body of Scots law, particularly where two or more incidents are separated by significant time gaps. ^[144]

Whilst there is no upper limit of time beyond which the Moorov doctrine cannot be applied, ^[145] there must be evidence capable of bearing the inference that the acts are not merely isolated incidents of similar offences but are component parts of one course of conduct persistently pursued by the accused. ^[146] Where there are a small number of complainers and significant time gaps exist between the incidents, there are significant challenges for the prosecution establishing to the criminal standard of proof ^[147] that this is a course of conduct persistently pursued. ^[148]

Distress

The extent to which a complainer’s distress, as seen by a third party after an alleged sexual crime, can corroborate the use of force, ^[149] or lack of consent, ^[150] has also evolved. Independent evidence of the reaction can lead to an inference that whatever happened did so against the will of the victim and was, therefore, something brought about by violence or, at least without the victim’s consent and can thus corroborate lack of consent. It cannot, however, corroborate specific acts narrated in the charge, such as intercourse or particular acts of violence or indecency. ^[151]

Prosecution Test

Once the prosecutor is satisfied that sufficient corroborated evidence exists to prove the charge, the prosecutor then requires to determine whether it is in the public interest to proceed. This involves consideration of the question of whether there is a realistic prospect of a conviction.

Law Relating to Sexual Offences

Scots law, on rape and sexual offences, was substantially reformed with the enactment of the Sexual Offences (Scotland) Act 2009 (the 2009 Act) which came into force on 1 December 2010. The 2009 Act essentially codified the substantive law of sexual offences in Scotland. In particular it:

• Repealed the common law offences of rape, sodomy and clandestine injury to women and a number of statutory sexual offences.

• Created new statutory offences of: rape, sexual assault by penetration, sexual assault, sexual coercion, coercing a person to be present during sexual activity, coercing a person to look at an image of sexual activity, communicating indecently, sexual exposure, voyeurism and administering a substance for a sexual purpose. These offences are committed when a person engages in any such conduct without the other person's consent, and without any reasonable belief that the other person consented.

• Broadened the definition of rape to include not only penile penetration of a victim’s vagina without consent, but also penile penetration of the anus or mouth.

• Provided a general definition of consent as “free agreement” and supplemented this with a non-exhaustive list of factual circumstances in which free agreement, and therefore consent, is not present.

• Created new “protective offences” which criminalise sexual activity with a person whose capacity to consent to sexual activity is either entirely absent or not fully formed either because of their age or because of a mental disorder. Separate 'protective' offences were provided in respect of sexual activity with young children (under the age of 13) and older children (from age 13 to age 15).

• Made it an offence of “abuse of position of trust” for a person in a position of trust (over a child or person with a mental disorder) to engage in sexual activity with that child or person.

For sexual offences occurring after 1 December 2010, the Act provides that a sexual offence is committed when a person engages in sexual activity with another person without consent and where there is no reasonable belief that there is consent. There is no requirement that the offender must use physical force to overcome their victim, or that the victim must attempt to physically resist their assailant for an offence to be committed.

For sexual offences occurring before 1 December 2010, the pre-existing statutory and common law continues to apply. The application of two different legal regimes, for offences that occur both before and after 1 December 2010, requires prosecutors to consider and apply a complex landscape of charges and associated law.

Further legislative changes have taken place more recently with the enactment of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (the 2016 Act). The Act introduces:

• A new offence of non-consensual sharing of intimate images ^[152]
• A requirement for specific directions to be given to juries in sexual offences about how to consider the evidence where certain conditions apply ^[153]
• Amendments to sections 54 and 55 of the 2009 Act to extend the extra‑territorial of Scottish courts to allow child sexual offences committed elsewhere in the United Kingdom to be prosecuted in Scotland ^[154]

The 2016 Act creates three statutory jury directions. ^[155] It requires judges in sexual offence trials to provide juries with directions where evidence is led or elicited that: an alleged sexual offence may not have been reported until sometime after it was alleged to have been committed, of the fact that it is not alleged that the accused used physical force to overcome the victim, or that the alleged victim did not physically resist their assailant. The judge’s directions must set out that there may be good reasons why that happened and that it may not necessarily indicate that an allegation is false.

The policy objective behind the introduction of the directions is to address concerns that certain ill-founded preconceptions held by members of the public, who make up juries, may exist about the nature of sexual offending and victims’ responses to it.