Reluctant complainers in cases of rape and serious sexual offending policy

The COPFS policy on dealing with reluctant complainers in cases of rape or other serious sexual offending was revised, with effect from 12th March 2018.

The focus of the Crown’s revised policy is not on compelling rape complainers to testify. The focus of the Crown’s policy is to ensure that the burden of prosecutorial decision making properly lies with COPFS, and to ensure that decisions are made after the most careful consideration of all the relevant circumstances.

The complainer’s views, welfare and interests are at the heart of the Crown’s decision-making in these cases and the Crown is committed to doing all that we can to support complainers through the process.

The revised policy makes clear that:

1. the decision as to whether or not a case will be prosecuted, where there is legally sufficient evidence, is one to be taken by the Crown in the public interest
2. the attitude and views of the complainer will always be a very significant factor in the decision
3. prosecutors must weigh up carefully all relevant factors bearing on the decision, including factors relating to the complainer, the nature of the offending behaviour, and the risk posed by the accused
4. the policy emphasises the importance of exploring reasons for reluctance and working, along with other agencies, where appropriate, to address these and to re-engage and support complainers

The revised policy does not represent a fundamental shift in approach by COPFS. Each case will continue to be carefully assessed and considered on its own merits and circumstances, having regard to all the relevant factors, and there will continue to be cases which are not prosecuted due to the reluctance of the complainer.

The revised policy recognises explicitly the challenges which the criminal justice system can present for complainers in these cases, and the need to take that fully into account.

There are a number of reasons why the Crown cannot adopt a rigid policy which would treat the reluctance of a complainer to testify as decisive regardless of the particular circumstances.

The Crown has a responsibility to take action, where it can, to protect women from sexual violence and to bring perpetrators of serious crime to account. That means that it must address the nature of the offence and also the risks posed by the accused both to the complainer and, potentially, to other women.

Complainers may be reluctant to give evidence, in some cases, through fear of the accused. If the Crown were not prepared to contemplate proceeding in such cases, this would play into the hands of accused persons who may seek to intimidate complainers into withdrawing their evidence.

The most serious domestic abuse cases may involve sexual violence, including rape. Our understanding of the dynamics of coercive control calls for a policy on reluctant complainers which, while attaching significant weight to the attitudes and views of the complainer, allows all the circumstances of the individual case to be taken into account.

The case law of the European Court of Human Rights indicates that a legal system which does not, where the complainer is unwilling to testify, allow prosecutors to take into account other relevant circumstances – in particular the risk posed by the accused person, including the risk to the complainer – may, depending on the circumstances, be held to breach Convention rights if the accused is not prosecuted and perpetrates further serious offences.

In reviewing the policy and approach, account was taken of information and views from a variety of sources, including:

1. research into practices in other jurisdictions, e.g. the approach of the Crown Prosecution Service (CPS) in England and Wales, which similarly requires each case to be considered on its own circumstances
2. relevant ECHR case law dealing with reluctant complainers and affirming the obligations of the State to protect its citizens who may be at risk of future serious harm
3. consultation with a range of key internal and external stakeholders, both in relation to our related domestic abuse policy but also specifically in relation to our approach to dealing with reluctant complainers in cases of rape and other serious sexual offending
4. consideration of the findings of the 2017 Inspectorate of Prosecution Review of Sexual Crime
5. review of a number of cases reported to Law Officers for consideration of no action on the basis of reluctance of the complainer

The views and concerns of stakeholders from organisations supporting victims were given careful consideration and it was noted that, while there was agreement on certain aspects, the views of stakeholders differed in relation to the proposed revised policy, with some opposed to the change and some supportive of it. All the views expressed were taken into account in revising the policy.

Although the reluctance of a complainer to testify does not automatically mean that proceedings will be discontinued, that does not mean that a warrant will be taken for the complainer. The policy emphasises the need to explore the reasons for the complainer’s reluctance, and to take steps, with other agencies where appropriate, to seek to address those reasons and to seek to re-engage the complainer. While the Crown cannot exclude the possibility of circumstances arising in which a witness warrant might be granted if a complainer refused to attend at court when lawfully cited, the Crown expects this to be exceptionally rare in these types of case. Should the issue arise, very careful consideration would be given by an experienced prosecutor to all relevant factors, including the vulnerability of the complainer and the nature and circumstances of the offending. This is in addition to the careful consideration which would have been given to these matters at every stage of the process.

The Law Officers had a useful and informative meeting with Rape Crisis Scotland on 19 April 2018 following concerns which Rape Crisis Scotland had raised about the policy in an open letter on their website.

COPFS agreed to work with Rape Crisis Scotland to provide reassurance in relation to the policy and approach and to make sure that victims can be given accurate information in that regard.

The Crown is committed to taking steps, where it can, with a view to preventing violence against women and girls and to protect the public from serious sexual violence. As prosecutors, the Crown is very conscious of the challenges which the criminal justice system can present for complainers in rape cases. That is why the Crown continues to seek, where it can, to address features of the system which contribute to witness attrition and to work with others to that end. The Crown will continue to work closely with Rape Crisis Scotland, and with other agencies, in this regard to improve the experience of complainers.