I am told that sex education isn’t compulsory in English and Welsh schools. It would seem it is the same for members of our Cabinet too if Chris Grayling’s recent comments on rape are anything to go by.
- In the House of Commons on Tuesday, the justice secretary said that he took ‘very seriously’ the issue of cautions for serious offences in response to concerns that there had been a sharp increase in the use of caution, in particular for sexual offences and violent assault.
‘If we take, for example, a caution for rape, something we would all view as being completely unacceptable, but in some cases where the victim is absolutely unwilling to give evidence, it may be the only way of getting something on the record about the offender.’
At the criminal bar sex education is compulsory. At some time during your career a sex case will land in your pigeon hole. Despite that, sexual offences are something which are certainly avoided on university law courses and it is a similar experience during the vocational training to become a Barrister.
Why? Sex cases are a different breed of criminal case.
Barristers learn about sex cases whilst on the job. I was lucky enough to have two great teachers. The first was my pupil mistress Louise Sweet. Louise’s room in chambers was jammed with high profile sex briefs. My job was to read them, do the research and get the drafting started. Sexual offences have a whole different set of tactics associated to them, different areas of disclosure, different law with regard to cross-examination and an incredibly case sensitive sentencing regime. When I had my first sex case it was Louise’s door which I broke down.
The second was Jeannie Mackie. Jeannie is incredibly generous with her time with junior barristers. Listening to her and discussing cases with her was a learning experience in how to defend vulnerable clients and how to cross examine vulnerable witnesses. Jeannie too would demonstrate and teach the emotional security one requires to handle that type of case.
Despite two excellent teachers, my education in sex cases is far from complete. That’s why sexual offences are considered a specialist area.
Chris Grayling could do well to sit down with both of those lawyers.
To suggest that rape cases can be satisfactorily dealt with by way of cautions is crass. It shows that the Secretary of State for Justice has no grip on criminal justice.
In Parliament Grayling announced that cautions could be the only just way that criminals get a criminal record.
To say so is wrong. There was no justice in that announcement.
A caution is a police disposal for an offender who admits their guilt in interview. They are spared the ordeal of trial and are safe for criminal sanction. The very basic notion that someone, man or woman, can be the victim of serious sexual violence and have no redress whatsoever is astounding.
The victims lobby have fought hard to make the trial process more accessible. The defence have had to give up some notions of justice which they held dear. Hearsay evidence is admissible; victims do not have to face their accusers. Evidence can be video recorded, victims can be cross examined behind screens. Applications have to be made to cross examine on sexual history.
Those victims are supported by specialist police officers, trained victim workers and cases are prosecuted by prosecutors who have attended rape courses. It is wrong to ignore all those legal and practical steps that have been taken to enable victims to participate in the trial process.
Easy way out
The Secretary of State should not encourage victims not to participate and to entrench themselves in a position that they won’t give evidence because something will happen to the perpetrator in any event.
It’s wrong too for the defendant. Potentially a sexual predator can be set free into the community without any form of supervision to offend again. And, worse still, an innocent man may accept a caution to avoid the stigma of a trial.
Adopting this stance will allow false rape allegations to be used as a weapon. Make an allegation, refuse to give evidence, plant a flag on a person for revenge.
This announcement, this position, hurts proper justice in sexual offences. The ‘no means no’ campaign is where to focus, on educating young men about sex and consent. That should be the future focus, not this easy way out.
There must be a niggle for all of us involved in criminal justice. Police officers cut, probation over-stretched, the criminal bar fighting for survival and prisons becoming warehouses. Sexual offences are very expensive to investigate, prosecute, treat or rehabilitate and then supervise after conviction. Specialist police officers, experienced Counsel, intensive offender treatment programmes and then close supervision in the community. With statistics suggesting only one in every 100 rapists are brought to justice, one has to wonder whether there’s a cost element to this stance.
If that’s entered Grayling’s mind at all then he really justifies the hashtag #failinggrayling.
Author: Ian Brownhill
Ian is a junior barrister who specialises in criminal defence, extradition, prison law and public law and civil actions relating to the criminal justice system. Prior to coming to the bar, Ian was the first man to be employed as the women prisoners’ caseworker at the Prisoners’ Advice Service.