There is a public interest in prosecuting rape. There is also a public interest in not prosecuting people for rape when it is inappropriate to do so.
It is a difficult balancing exercise.
Guilt or innocence cannot be assumed. We have a process for trying cases that needs to be effective. News of a joint action plan by the CPS and ACPO – and reported here – to tackle falling rape conviction rates is nothing new.
Judges already direct juries to ignore old-fashioned myths and stereotypes and to focus on the evidence. The law already requires an analysis of the steps taken by an alleged offender to establish there was consent. Consent is already defined as the freedom and capacity to choose to engage in sexual activity. It seems that there are still dinosaurs out there and the report encourages a discourse on the issue. Professionals in the system need to be properly trained. Police officers and lawyers have to focus on collection of evidence but sweeping statements about witness reliability could have the opposite effect from that which the action plan is trying to achieve.
The press release from ACPO highlighted six commitments which mostly related to protocols, training as well as a conference later in the year. The report clearly makes some sensible and practical suggestions which are geared towards a national approach to policing and prosecuting the most sensitive of cases. However, what was remarkable was the admission in television interviews that some police officers do not understand consent. I’m not sure if that is what the representative intended to say but the report says the following:
“A key finding we identified from our work on the rape scrutiny panel is the need for proper understanding of the legislation on consent. Police and prosecutors must focus their cases on the behaviour of the accused, not the complainant and, significantly, the Panel uncovered some pervasive myths that remain to this day among not only some police and prosecutors but perhaps society as a whole, and which may be a barrier to justice for some vulnerable victims”.
In my experience, police officers in specialist units know exactly what the legal issues are in cases involving sexual offending. Frontline police officers are usually trained to pass a rape complaint on to a specially trained officer. Clearly, if they don’t understand the law, are ignoring serious complaints or conversely arresting the innocent these are serious issues which need to be addressed.
However, asking police officers not to focus on the credibility of the complainant but on the credibility of the allegation is potentially a difficult exercise when it is remembered that the requirement for corroboration was abolished years ago. It is very important that on order to raise standards, the improper message is not created that all rape complainants are inaccurate.
Genuine victims are often inconsistent because they are traumatised. Liars are inconsistent because they are lying. Some witnesses genuinely believe they were raped but the evidence is that the suspect genuinely believed they were consenting so there is no crime – it is only if the suspect’s belief is unreasonable that the law holds a suspect to account. These are the issues juries try daily. They acquit when they are not sure the allegation is accurate. Their doubts will be fuelled if relevant evidence was not collected. The idea of looking for other evidence is not new. If the action plan is right, it suggests that there is a need to teach the police to look properly.
What the CPS policy must really mean is that the police should collect all relevant supporting evidence – scene analysis, scientific testing of DNA, saliva etc, toxicology, telephone records, CCTV, witnesses to the events or who heard the first complaint, Facebook communications between the parties, maps, plans and whatever else can be collected. This puts the policy into an evidential context – a victim may be inconsistent but look at all the evidence that supports what they say. Lawyers then have the opportunity to consider the case as a whole and present it properly in court. Such investigations are resource intensive and time-consuming and can throw up good evidence for either side together with all sorts of concerns about witness and suspect reliability. Proper disclosure is also vital. Ignoring issues of credit should not mean that cultures develop to withhold information from the defence. At court, time needs to be given to enable the jury to have the fullest picture and those involved should have suitable skills.
The real problem is that there simply aren’t the resources to deal with the current increase in complaints, the need to carry out a full investigation and to try every complaint. It is no surprise that the conviction rate has dropped at the end of a period of severe cuts and reorganisation within both the police and the CPS.
I wonder if anyone has done any research on the correlation between the cuts and the falling rate of convictions. The practical reality is that large resources are needed to prosecute or defend a rape case properly. Those resources are simply not available and the system is relying on stretched police, lawyers and advocates to hold it together. Victims and suspects and the public need to be confident the system is working – the overriding objective after all is justice.
If myths are still pervading they do need to be rooted out. However, discussion on failed cases which fail due to witness evidence does not mean that this was a failure by the investigators or lawyers. We still need to accept that there will be acquittals and that it is vitally important to charge the correct cases not all complaints.
Cases should not be prosecuted where the jury cannot rely on the evidence and no amount of policy can replace a full investigation. What will worry the public is that suspects will be charged when the witness evidence is incredible. In the end, juries use their common sense and will acquit where the evidence is unreliable and/ or when it is incomplete and convict when it is supported. These are simple concepts that really ought to be understood already. It remains an eternal truth that some cases should never be prosecuted and no amount of policy will fix those. This is about improving the quality of the process to identify the strengths and weaknesses before a prosecution is launched.
Exposing myths and failures is a good thing and the action plan is a small step in the right direction in relation to good practice but it remains important to maintain balance and see a weak case for what it is.
Felicity Gerry QC
Felicity Gerry is a high profile criminal barrister and author specialising in serious fatal, sexual and violent offences. She is the co-author of The Sexual Offences Handbook and also a legal media commentator.