My Lords, the National Police Chiefs’ Council and the Crown Prosecution Service consulted a number of stakeholder organisations on the development of a national consent form. The CPS has issued guidance on the examination of mobile devices, making it clear that decisions should be made on a case-by-case basis in the pursuit of reasonable lines of inquiry. A commitment has been made to engage with stakeholders further on the form and guidance.
My Lords, I am encouraged by the noble Baroness’s reply. The standardisation of consent forms has caused real concern, not least among police and crime commissioners. As a former criminal law practitioner, I know as a fact how difficult it is to get convictions in the probably around 90% of cases where the defence of someone known to the victim is consent, as opposed to an attack by a complete stranger. Will the Attorney-General, who appears to have agreed the new forms, take personal charge of any review to ensure proportionality, and can we hope that disclosure problems will be substantially reduced and that there will be more successful prosecutions?
First, I commend the noble and learned Lord. Despite his efforts the other day, he was not able to get in when I answered the Urgent Question—or it may have been a Statement. However, he has now asked his Question and I am able to focus on it. He is absolutely right to raise the issue of consent. The JSC does not specifically cover consent but there is a discussion on privacy issues and its recommendation on this issue is, essentially, to have good guidance. The noble and learned Lord mentioned guidance and I will quote from the Select Committee’s report, which said:
“It is important that those who come forward to report serious offences, particularly those of a sexual or otherwise sensitive nature, are treated by investigators with respect and sensitivity. Their personal information should be handled in the same way and in accordance with their rights to privacy, where that is consistent with the interests of justice. The law is clear in that the right to a fair trial is an absolute right which cannot be violated to protect the right to privacy. We heard differing views on whether disclosing certain private information was always necessary to uphold the right to a fair trial, and this emphasises the need for clear guidance on this point”.
My Lords, if social media indicates consent to sexual activity between the two individuals concerned, both before and after an alleged sexual offence, surely it would be proportionate to examine it and disclose it. Trawling social media for patterns of behaviour would surely not be proportionate, as it does not tend to prove or disprove the matter at issue: namely, whether consent was given on the occasion in question. Does the Minister not agree?
The noble Lord makes an important distinction between trawling social media and identifying evidence that could be used in a trial. As I said to the noble and learned Lord, Lord Morris of Aberavon, the NPCC and the CPS have invited a number of organisations to discuss their concerns around this, and I am sure that what the noble Lord talked about will come up in these discussions.
The noble Baroness’s responses have given us clear evidence of how much thought she has given to this difficult issue. Does she agree that consistency is very important? For years now, it has not been permissible for defence lawyers to cross-examine complainants about the clothes they wear or their sexual history without there being a clear evidential basis for doing so and the permission of the judge. Should we not be consistent and ensure that we protect the privacy of complainants, after a gross invasion may have taken place of their most essential privacy, and allow the trawling of electronic material only where there is a proper evidential basis for doing so?
The noble Lord takes us back some years—we spoke about it earlier—to when judges or lawyers might refer to the clothes that somebody was wearing almost as evidence that they had not been sexually assaulted. Consistency is important. Having your mobile phone taken from you, albeit with consent, feels like a huge intrusion. It is clear in the guidance that it should not happen in all cases or as a matter of course, and sometimes your mobile phone should not need to be taken away from you at all. So these further conversations will start to develop the thinking about how we can be consistent in this area.
My Lords, there has been a lot of misinformation about the consent forms, which is having the worrying effect of victims not wanting to come forward—and, as we all know, it is difficult to get victims to come forward anyway. What can be done to make sure that information about what the consents forms are and how they work is properly put out there so that victims can feel safe when they come forward about filling them in?
I thank my noble friend for raising this point, because victims coming forward is at the heart of what we are trying to encourage in such a sensitive area as sexual assault. Historically, victims have been unwilling to come forward and we do not want anything that they might have read in the press that is misleading to discourage them from doing so. I am very pleased that the police and the CPS are going to engage further with victims’ groups and I hope that this can be resolved to the extent that victims feel that they can come forward.