The UK Supreme Court has made a very confused ruling about whether or not Scottish courts are breaching the right to a fair trial in rape cases. Some believe this is a ‘landmark ruling’ that could, ‘trigger multiple appeals by men convicted of sexual offences in Scotland’. In my opinion the court is having its cake and eating it.
The ruling states that two rape cases they assessed in October last year were fair and there was no breach of the European Convention on Human Rights’ Article 6, the right to a fair trial. But also:
‘The Scottish courts should modify their current approach to the admission of evidence in trials for sexual offences because it is liable to infringe defendants’ rights under Article 6 of the Convention’.
How can the cases they were looking at be fair trials, but at the same time the approach being taken in Scotland breach Article 6? It makes no sense. The court appears to be trying to protect the reputation of the Scottish courts while also sending them a warning.
One of the convicted, Andrew Keir, appears to have been thrown under the bus by this compromise. His case is one of the most egregious examples of a miscarriage of justice I have ever seen.
Keir was sentenced to five years in prison for raping a drunk and sleeping woman at his home. However, in Scotland, ‘rape shield’ legislation means that evidence relating to the character or past sexual history of an accuser cannot normally be heard in court. This ‘progressive’ legislation meant in Keir’s case that a mass of evidence about what happened earlier in the night was not heard by the jury.
Any ordinary person looking at the Andrew Keir case would conclude that the evidence that was excluded was outrageous. There was evidence showing the woman holding hands and kissing Keir and beckoning him into a disabled toilet. The couple were thrown out of the pub as it was assumed they were having sex. This was all caught on CCTV.
Witness statements were blocked. CCTV footage was shown selectively. Keir’s statements were redacted to block any discussion about what happened earlier in the evening. The pub workers’ report about throwing Keir and the woman out of the pub for seemingly having sex was blocked. Essentially, there was mass evidence tampering by the authorities. Keir was convicted and his life destroyed.
None of this means that later in the evening Keir did not rape the woman. But the jury should have had the right to hear this evidence and make up their mind accordingly. The court case and now this Supreme Court ruling is a clear case of a miscarriage of justice. It is a travesty.
The reason this evidence was excluded is because over the past 20 years in Scotland there has been a systematic attempt to protect woman in rape trials. This understandable concern about rape victims being humiliated in court has unfortunately turned into a progressive dogma that treats women (before any verdict) as victims who need to be protected. Over time, judges have been trained to understand their new role and they have devised new mechanisms for withholding evidence.
The most effective argument in favour of the ‘rape shield’ legislation is that what happens beforehand does not prove what happens afterwards. As Lady Simler said in the Supreme Court: ‘If consent can be withdrawn at any time… why is it relevant what happens six hours earlier in a completely different setting?’ Lord Rees, the chair of the Supreme Court backed up Lady Simler, noting that ‘this does sound as if it is a classic appeal to a rape myth’. But is hearing about a woman beckoning a man into a disabled toilet, presumably to have sex, not relevant at all to understanding the evening in question?
Many judges seem to believe that today’s juries are a basket of deplorables who are so bigoted that they cannot be trusted to hear all of the evidence.
At present many men no longer have the ability to make their case. One result is that leading defence lawyers like Thomas Ross KC now refuse to take rape cases – Ross understands that there is little chance of a fair trial.
Recently a group called Justice for Innocent Men Scotland has emerged. The group is made up mainly of women whose loved ones are in prison for rape. They spoke to my criminology students a few weeks ago. As a result, I have been condemned as a rape apologist. There was even graffiti painted on the school outside my office saying I was a ‘rapist sympathiser’. My university is under pressure to either stop my research or sack me.
What happens now is not clear. The new progressive establishment has spent decades building these mechanisms to block evidence. Miscarriages of justice have become the norm not an anomaly. God knows how many men have suffered because of this.
Stuart Waiton is a senior lecturer in sociology and criminology at Abertay University. His paper on the fallacy of ‘rape myths’ can be found here.
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