My Lords, I am so grateful to your Lordships’ House for considering my Question on a burning hot day when so much attention is understandably elsewhere—I am grateful for the chill in your Lordships’ Chamber—but if the business of leadership and government is not to protect the most vulnerable among us, I honestly do not know why we are here.
Left or right, north or south, on the planet, let alone in our country, there is no democracy without the rule of law, and one of the indicators of that fundamental bedrock breaking down is when in any society, the most serious crimes, such as rape, may be perpetrated with increasing impunity. More than 98% of reported rapes will never even result in a criminal charge. Recent government figures show all prosecutions at their lowest levels since 1970, and prosecutions for sex offences have fallen by one-third between 2017 and 2018. Our underfunded criminal justice system is in a crisis of resources and morale, and never is this more alarmingly evidenced than by its handling of sexual violence. It has emerged that one-third of police files are being sent back for more information. A blame game seems to have developed between prosecutors and their colleagues in uniform. There is nothing like finger-pointing to demonstrate overworked people close to their wits’ end. Recent information disclosed by the Attorney-General’s Office shows a shocking increase of more than 140% in the time taken to charge suspects in rape cases. In an Answer to a Written Parliamentary Question from Her Majesty’s Opposition, the Government revealed that the average number of days from complaint until charge has risen from 32 in 2010-11 to 78 in 2017-18.
There are other serious problems with the way rape cases are handled. In my opinion the so-called “digital strip searching” of survivors’ mobile phones is probably unlawful. Consent for such an intrusion into private life in exchange for access to justice, in the absence of primary legislation, cannot surely be in accordance with the law or comply with the right to respect for private life under Article 8 of the human rights convention or the right to a fair trial under Article 6.
The prospective Prime Minister has in the past spoken in favour of the human rights convention. In 2016, he is reported to have said, “Keep the European Convention, it’s a fine thing ... We wrote it”. If we wrote it, Mr Johnson, let us keep it and abide by it in thought, word and deed. I am sure that—despite all the temptations—your Lordships’ House looks forward to the reaffirmation of that position today.
I pay tribute to the distinguished outgoing Victims’ Commissioner, the noble Baroness, Lady Newlove, and I welcome the new one. I also commend the broad coalition of campaign groups for bringing the issue of the controversial digital processing notices, introduced for police in England and Wales earlier this year, to the fore today. Women—the overwhelming majority of rape victims—are already discriminated against in the system. A trawl through their intimate data only reinforces the idea and the feeling that they are the ones in the dock. That is the practical effect of the purported “consent form”.
When Ms Sirin Kale at VICE magazine contacted me a little while ago to tell me that rape victims with cases going through the courts are told not to tell therapists about their assaults, I could barely believe that this was true. The suggestion that victims should avoid vital therapy for fear of prejudicing trials is as cruel as it is clumsy. The poorly drafted CPS guidance appears to be at least 17 years old. Have there really been no developments in professional thinking about trauma, treatment and memory since then, or could it be that a system without funding for treatment is desperate enough to rely on the flimsiest excuse for not providing it?
To suggest that a rape victim be denied counselling or therapy for perhaps months and months while awaiting trial is as ridiculous as denying the victim of any other form of violence vital medical treatment for their physical wounds. In some cases, it might be even worse. I quote a survivor who cannot be named for legal reasons: “You are allowed limited pre-trial counselling but you aren’t allowed to discuss anything that is in your police notes, which is obviously what happened to you. The defence can request your notes, then some parts of what you said can be used against you or the therapist can be seen to be guiding you over what happened or what to say if it does go to court. I think therapy would have massively helped me—so many people credit counselling and therapy as being life-changing and it’s really frustrating for me that I felt like I desperately needed it and I haven’t been able to have that”. I commend VICE magazine for its investigation into the treatment of rape complainants in our country. Non-partisan ethical journalism still lives.
The End Violence Against Women Coalition has begun legal action against the authorities, claiming that the CPS has covertly changed its practice in relation to decision-making on rape cases and that this has contributed to a dramatic fall in the number being charged. The coalition has warned that cases with “extra vulnerabilities” such as child sexual exploitation and those where a woman might make allegations against a former partner are most likely to be dropped, due to the difficulties therein.
Because of the obliteration of civil legal aid since the coalition Government’s disastrous LASPO reforms, victims’ groups are having to crowdfund on the internet to seek legal redress—this in a legal system that was once the envy of the world. It is still a great legal system in that international oligarchs will come here for Rolls-Royce arbitration and justice against each other, but it is more like a soup kitchen for the most vulnerable.
I welcome that the Government under the outgoing Prime Minister agreed to review the treatment of rape complainants, but victims will need assurance that this will be meaningful. Surely a Government of any stripe should consult and value the expertise of judges, lawyers, mental health professionals, women’s organisations and survivor groups who have been fighting these burning injustices for some time. This system failure is a shameful breach of survivors’ human rights. Victims should never be required to make the false choice between justice and survival.
Therefore, I hope that we can all urge the incoming Prime Minister to make the rule of law and the rights of the most vulnerable among us an absolute priority if we are to hold the bare bones of our democratic society together in the difficult months ahead.
My Lords, I thank the noble Baroness, Lady Chakrabarti, for introducing this important debate today, and I thank her for her kind words.
I served for seven years as the Victims’ Commissioner for England and Wales—something that I am very proud of. The role of Victims’ Commissioner is independent from government but, throughout that time, I held regular meetings with Ministers and policymakers, as well as senior officials from a range of criminal justice agencies. At those meetings I was able to raise issues of concern, as well as secure a better deal for victims. Indeed, I placed great importance on them as an opportunity to influence policies and practice, based on the experiences of victims up and down the country whom I had the privilege of meeting. After all, that was the main purpose of my role.
My commitment to greater transparency was so important that I would share notes of some of my meetings by placing them on the website, even tweeting about them at the same time, to enable victims and practitioners to see the issues I had raised and the responses I had received from the agencies concerned. When used appropriately, social media is a great way of getting to a wider audience—after all, there is only one of me.
I met the Director of Public Prosecutions—DPP—regularly. I place on record my gratitude to the outgoing DPP, Alison Saunders, who worked hard with me to support and commit to improving the experience of victims within our criminal justice process. I also had the pleasure of meeting her successor, Max Hill, before I stood down in May. At these meetings, I constantly raised the issue of the fall in the number of rape charges and whether that indicated a change in policy or practice.
In my final meeting with the DPP, he reassured me that the CPS was not changing the way it made decisions on whether to make a charge for a rape or sexual assault. Such decisions were based on the available evidence and whether there was a public interest. The CPS appetite for pursuing such cases remained the same. The overall drop in sexual violence cases being referred to the CPS meant that fewer cases were being considered.
That leads me to disclosure, another sensitive and worrying issue. I like the term that the noble Baroness, Lady Chakrabarti, used—digital strip-searching—because it feels like that. The DPP kept me updated on work within the CPS to monitor how disclosure was being handled. I was given assurances that CPS staff were examining cases very carefully, making sure that issues concerning disclosure had been handled appropriately. This means that there will be several thousand cases under active consideration at any one time. The DPP is aware that this caution was interpreted by the public as a reluctance to make a charging decision, but he said that the CPS’s overriding objective was to work to “get it right”.
I welcome such care. Who would not? Unfortunately, it has a knock-on effect of additional delays to our victims. Any additional delay would have a detrimental impact on the victim. Yet again, they are being lost in a prolonged process. This was compounded by the police’s reluctance to put some suspects on bail. This again undermined victims’ confidence that they would be adequately protected, in turn making them reluctant to come forward.
As prosecutors have very little contact with victims, they did not always appreciate victims’ concerns. The police would often blame the CPS for delays: CPS barristers needed to have better communication with victims. I want to see more humanity offered within our criminal justice system.
We have looked at Section 41 cases. I know that my successor, Dame Vera Baird, made a report on these in her capacity as police and crime commissioner for Northumbria. That came up against contradictory responses from the CPS. However, the DPP accepted that Section 41 requests were made in an open court but that the judges were able to direct the application to be determined in a closed court. Again, this is an area that needs to be carefully explained to the victim. In fact, the findings of the House of Commons Justice Committee’s inquiry into the disclosure of evidence in criminal cases missed a huge opportunity to tackle the great disadvantage that rape and sexual abuse victims face in this area compared with all other victims of crime.
The victims are quickly required to give blanket consent in writing that the police and CPS can access all personal data from their education, safeguarding, council and social services records; their medical, psychiatric and dental records; and any notes that may have been made about counselling they have received. This is to see if there is any material that would undermine the prosecution case or assist the defence. If anything is found in such a category, it will be disclosed to the defence. The fact that the complainant has signed the consent form means that he or she has no right to object. Yet, if the same person makes a complaint of a physical assault without any sexual component, they will not be asked for any personal documentation, even if they are the only witness and the defendant denies it.
It is well documented that myths and stereotypes surrounding rape enter into the courtroom in sex cases. Victims are lying, or they ask for it, being provocative with their clothing and so on. Judges are now expected to explain the fallacy of such commonly held beliefs to juries. However, such myths are still played out in this disclosure process. Some personal records may need to be obtained and shared with the defence to test the truth. However, the test is clear: it should be only those which are relevant to the facts and obtained through reasonable lines of inquiry.
Although a defendant has an absolute right to a fair trial under Article 6, a complainant’s right is surely as important. As we speak today, this balance is not even considered. If complainants do not sign up for the full disclosure, the CPS often says simply, “Raped or not, we are not taking this case any further”. The Justice Committee heard evidence of this but make no recommendations.
Time and again we hear about fair justice and the rehabilitation of offenders. If you are bereaved following a murder, you are treated as a victim. If you say no to sex, you are in your own special box. Surely the records show that our dealing with victims of rape is woeful and that we must improve it. For due process to go ahead for victims of rape and sexual assault, there must be a system where victims feel safe to make their complaint and provide evidence; otherwise, nobody within our criminal justice system will have confidence.
My Lords, it is a pleasure to follow the noble Baroness, Lady Newlove. I pay tribute to her stellar contribution to the criminal justice system. I also thank the noble Baroness, Lady Chakrabarti, for bringing this very important Question to the House.
My reason for taking part in this debate is that, over many decades now, I have prosecuted, defended and sat as a part-time judge in rape and serious sex cases, so I have that experience to offer. I should probably inform the House, although I do not regard it as a declarable interest, that Alison Levitt QC, my wife, was the principal legal adviser to the Director of Public Prosecutions for five years and was responsible for the rape policy, its production and its instruction in the service from 2009 to 2014. I say to the noble Baroness that my belief—I have obviously read the policy extremely carefully on numerous occasions—is that the problem is not with the policy but with its application. I shall turn to that in due course.
My knowledge of the Crown Prosecution Service leaves me with the view that we should support those men and women who are lawyers and Crown prosecutors in the service and have to deal with these cases. They can only do what can be done with the material that they are given. I urge that there could be better liaison between the Crown Prosecution Service and the police: sometimes they sit in silos when they should be talking to one another. As it happens, when my noble friend Lord Hogan-Howe was Commissioner of the Metropolitan Police, I was for three years chairman of the London Policing Ethics Panel and the about-to-be Prime Minister was the Mayor of London.
I went out on ordinary night patrol with officers in north London and saw how they behaved towards people who had sexual complaints to make. I can say that, in almost every case, they behaved immaculately and showed that the training of police officers is fit for purpose. The problem that has arisen with the electronic communications issue is that the judgment of well-trained police officers has given way to process, so they are obliged to present forms which are not fit for every purpose to individuals faced with the most terrible crisis of their lives. My encouragement would be that the CPS and the police should talk about a simple old adage: circumstances alter cases. When an alleged victim, or complainant as I prefer to call them, alleges that she or he has been raped or subject to a serious sexual offence, the appropriateness of every request has to be instinctive in the minds of both the police officers concerned and the prosecutors considering the case.
It is worth noting—the noble Baroness, Lady Chakrabarti, has given most of the statistics and I will not repeat them—that fewer than 4% of women who report sexual attacks now expect their cases to reach trial, according to recent research. That is a completely shocking and true statistic. As I see it, there has been a subtle and undisclosed policy change within the Crown Prosecution Service; this was recognised and commented upon by the colleague of the noble Baroness, Lady Newlove, the independent Victims Commissioner for London, Claire Waxman, and others. Indeed, in September of last year, the Guardian—which is not always right but was, I believe, on this occasion—revealed that rape prosecutors in some specialist training seminars had been urged to take a more risk-averse approach to rape cases after criticism of low conviction rates. That has nothing to do with the policy; it is to do with the application.
It is worth reminding ourselves that there has been a fundamental change—years ago; certainly from the time when I was first practising—in the approach to serious sex cases. Corroboration used to be required: independent confirmatory evidence, which is to say, independent of the complainant. For years now, corroboration has not been required. The starting point has to be that, if there is a complainant, male or female, who raises a credible case of rape, on the face of it, that is enough to justify a prosecution, all other things being equal. There are very few “stranger rape” cases and they are usually quite easy to prove. Most are usually convicted although not all; there are some terrible stories of cases where there have not been convictions. The real mischief arises in date rape and familial rape cases, where there will be no independent observers.
I would like to raise a few basic points of which the House and, above all, prosecutors, need to be reminded, and I will echo something absolutely correct that was said by the noble Baroness, Lady Newlove. When the prosecution applies to alleged rape cases, the same code test should apply that applies to all other cases—the test of rape should be exactly the same as that for prosecution of assault, robbery, fraud or any other criminal offence—and there should be a complete exclusion from the police and prosecutors’ minds of those myths and stereotypes of which the noble Baroness spoke.
There was a time—I confess to being old enough to have been around to make these kinds of suggestions in the 1970s and 1980s—when barristers actually asked complainants how they were dressed. The implication was that if a female complainant was wearing a short skirt or, heaven forfend, fishnet tights or anything of that kind—or if she was a sex worker, mentally ill or in some way physically or mentally disabled—she was a less worthy person to be a complainant in a prosecution. People were acquitted in those days because those myths and stereotypes had credence. In the modern era, well into the 21st century as we are now, let me remind those who are interested that sex workers are raped, women are raped by their husbands and girls who wear fashionable, short clothes and fishnet tights mean it when they say no to somebody who takes an interest in them. Those myths and stereotypes are entirely inappropriate.
There are some types of case where it is true that convictions may be hard to obtain because there is a residue of those myths and stereotypes. However, if the prosecutor applies the CPS code test with what is called the merits-based approach, which is used in all such cases, and if they and the police believe that the claimant may well be truthful and reliable, there has to be a prosecution, prima facie. Date rape cases are an obvious example. If the Crown prosecutor were to apply a purely predictive approach based on past experience of similar cases—which I am told is sometimes called the bookmakers’ approach—she or he might well feel unable to conclude that a jury was more likely than not to convict the defendant. Coming to that sort of decision in effect resuscitates the old corroboration requirement, which Parliament abolished years ago. With the merits-based approach, the question of whether the evidential test was satisfied should not depend on statistical guesswork.
In the context of sexual offences, this means that even though past experience may tell a prosecutor that juries may be unwilling to convict in cases in which, for example, there has been a delay in reporting the offence, or the complainant was drinking at the time the rape was committed, those kinds of prejudices against complainants should be ignored for the purposes of deciding whether there is a realistic prospect of conviction. In other words, the prosecutor should proceed on the basis of a notional jury which is wholly unaffected by the myths, stereotypes and prejudices of the type which, sadly, still carry some traction in some quarters. They should ask what the merits of a prosecution are, taking into account what they know about the defence case, of course, and whether, if the defendant is convicted, it would be justified, safe and merited. It is not a different test, but if you apply the merits-based approach, it just means that the prosecutor is reminded of how to approach the evidential stage of the full code test.
The statistics presented in this debate tell a terrible story. They mean that decent young men and women who have been sexually assaulted lose their confidence in the rule of law, something the noble Baroness, Lady Chakrabarti, quite rightly emphasised. We should not allow any such situation to continue, while of course always maintaining the independence of the Crown Prosecution Service.
My Lords, my noble friend Lady Chakrabarti’s question is about the Crown Prosecution Service for England and Wales, but I am going to take advantage of the debate that she has kindly secured to highlight some of the issues that we face in Scotland.
The basic problems are similar. The police and the prosecuting bodies make public statements to encourage victims to come forward, stating that they will support women and men who have been subjected to rape or sexual assault. There has been an increase in reports to the police, but a decrease in the percentage of cases being prosecuted.
In England and Wales, the CPS has been accused of dropping rape cases that appear weak. This failure has been described by the director of the Centre for Women’s Justice as a “human rights failure”. Article 3 of the Human Rights Act requires “effective” police investigation and prosecution of rape cases.
In Scotland, the records show an increase in the number of reported rapes and attempted rapes, which were up 28% in 2016-17 and 20% in 2017-18. The percentage of cases that went on to be prosecuted went up slightly in 2016-17 but was still only 13.7% of complaints. In 2017-18, this fell to 10.1%. The percentage of reported cases that result in convictions is less than 5%. Nearly 20% of prosecuted cases end with a finding of “not proven”—I will come back to this later.
There are two major differences between Scots law and the law in England and Wales. The first is the need for corroboration. As the noble Lord, Lord Carlile, said, this used to apply in England and Wales but continues in Scotland. The second is that a jury has a third verdict as well as guilty or not guilty: not proven. Both differences appear to have an impact on cases of rape and sexual assault.
The requirement for corroboration of evidence in criminal cases is described as,
“an ancient and highly distinctive feature of Scots criminal law”.
It requires that each “essential” or “crucial” fact be corroborated by direct or circumstantial evidence. This requirement remains in place despite an extensive inquiry in 2011 by Lord Carloway which recommended its abolition. Research conducted for the report found that 58% of serious cases not pursued due to lack of corroboration would have had a “reasonable prospect of conviction” in England and Wales. The report concluded that,
“the requirement for corroboration could … make it too difficult to prosecute certain offences, for example those typically committed in private (such as rape)”.
There is one possible way of bringing a prosecution when there is no direct corroboration—the Moorov doctrine, stemming from a case in 1930. This was based on similar fact evidence, which could allow evidence from other offences to be used as corroboration. But that can add to the pressure put on complainants, as their cases are dependent on other victims who may change their mind or may have a weaker case, which could result in a decision not to prosecute or an unsuccessful prosecution.
The second handicap that can impact on successful prosecutions for rape and sexual assault is the option for a jury to find a case not proven, which has the same status in law as not guilty. Juries may use this when they consider that the accused may be guilty but insufficient evidence has been presented by the prosecution. The not proven verdict is used disproportionately in rape cases. Rape Crisis Scotland pointed out that nearly 30% of acquittals in rape and attempted rape cases were not proven, compared with 17% for all crimes and offences.
I shall give two examples of how this has impacted on women. Emma reported a man who had raped and abused her when she was a child. The police explained to her that the key factor in determining whether to take forward a prosecution would be corroboration. Even though there was documentary evidence in social work and medical records, it was not sufficient, as there was no corroboration of each element of the charge. Although another family member had been abused, she did not want to become involved, so the Moorov doctrine could not apply. Emma believes that if the abuse had taken place in England, her abuser would have been prosecuted.
Miss M was raped and her attacker was prosecuted, but the jury gave a not proven verdict. Last year she took her case to the civil courts and succeeded in establishing that she had been raped by the man she had accused. The sheriff accepted that the evidence was cogent, compelling and persuasive. She was, however, made to go through a second court case, at tremendous personal stress and financial cost.
The corroboration requirements should have been abolished following the Carloway report in 2011. The recommendation to scrap it was supported by the Scottish Government, the Crown Office, Police Scotland and campaigners for victims of domestic violence and rape. But it was opposed by all the High Court judges in Scotland, other than Lord Carloway. One of the judges, Lord Cullen, stated:
“It’s very important that”, corroboration,
“is there and always has been for centuries as a safeguard against wrongful conviction”.
Making particular reference to rape cases, the judges warned that,
“the abolition of corroboration may result in miscarriages of justice”.
But we can be sure that miscarriages of justice are happening regularly in a system where cases are not brought due to lack of corroboration.
In 2014, the Lord Advocate, Frank Mulholland, stated:
“In the past two years, 170 cases of rape have had no proceedings taken in them because of insufficient evidence, which in many instances is a lack of corroboration”.
Another judge-led review into how sexual offences are dealt with in the Scottish criminal justice system is under way. This has been welcomed by Rape Crisis Scotland and other support and campaigning organisations, but we have to hope that, when it reports next year, it is followed by swift action to ensure fairness for the accused but also justice for women and men who have been subjected to rape or sexual assault.
Will the Minister in his role as Advocate-General for Scotland lend whatever weight he can to encourage the abolition of the need for corroboration and an end once and for all of the use of the not proven verdict?
My Lords, I thank the noble Baroness, Lady Chakrabarti, for the opportunity to debate this important issue. There are various challenges facing the investigation and prosecution of rape, but the fundamental issue is that there are far more allegations of rape coming forward, with the statistics offered by the noble Baroness, Lady Chakrabarti, and it is taking too long for relatively few prosecutions to succeed following those allegations.
The Government are committed to a review of the current delays. I support that review as it will look into the concerns about the prosecution process, and I believe that it is due to complete in the spring of next year. It seems to me that there are three principal problems, intrinsically linked, that the review can consider. The first, which has already been mentioned, has to do with digital evidence. The second has to do with resources—both are affecting the Crown Prosecution Service and the Police Service. The third, which is directly affecting the Crown Prosecution Service, is how will a jury respond to the evidence with which it might be presented.
In terms of digital evidence, concern has been expressed —we have heard it again today—about the requirement for victims of rape and other sexual attacks needing to sign a consent form allowing access to their digital media. I share that concern, which I have mentioned here before. My concern is first from a position of principle. Traditionally, sadly, the courts were expected to pry into the sexual history of victims—the noble Lord, Lord Carlile mentioned this—to determine whether the present charge is more likely to be proven or not. Quite properly that approach has been vastly curtailed and will very rarely appear in a criminal trial. The critical question, of course, is whether consent is present during the charged offence, not whether previous relationships or behaviour could indicate that the allegation is unlikely to be true on this occasion.
However, many of the defence requests for digital media now deal with communication after the alleged attack, which is taken to indicate that consent was present at the time of the attack. Surely the evidence they should rely on should concern what happens at the time of the attack rather than events before or after it. However, if it is decided that this could be relevant, perhaps the CPS, the police or the defence should have to argue in court for a production order. This would put on record the reasons for the request and I hope reassure the victim at some level that this is not a trawling exercise, but one based on a well-thought-through defence that has some relevant facts to challenge.
Whether we stay with the present system or establish a new one, as the noble Baroness, Lady Newlove, touched on, there is a definite need for better communication with victims, who appear concerned that their privacy will be invaded. We can all imagine why. Whether it is well founded or not really does not matter, because any limitation on the potential for a well-considered investigation or on any victim coming forward—any obstacle at all to a victim’s confidence—surely should be addressed. Communication is one good way of making sure it can be addressed, but it is clear that at the moment the police or the CPS together are not reassuring victims about the purpose of that consent form or what it will be used for.
The second issue is the sheer volume of digital evidence available. I am told that there is now a common backlog in forces of four months to examine devices for all offences, because there are of course cyberattacks, online harassment and many other offences where digital evidence is directly relevant. It has become particularly relevant in sexual offences. The reasons for the backlog are, first, the number of devices available to all individuals. We can all probably appreciate that over the past 10 years we each have had probably more than one device. It is not one person with one device. Secondly, there is the number of locations on those devices where evidence might be discovered. It might be the call-logging system. Many parts of a digital device are relevant. Finally, there is the number of social networking sites and the evidence they contain.
At the moment, the evidence retrieval process has very limited automation. It still requires people to establish patterns, recover evidence and seek intelligence from the available material. This can mean examining emails, texts, WhatsApp, Instagram, Facebook—I will not make the list any longer, but we know that people communicate in many ways now. Where we expect to find the evidence is not always where it will be discovered. The police, the CPS and the courts system have been unable to keep pace with this tide of information. It might be relevant and useful to the prosecution or, of course, the defence.
Secondly, loss of resources over the past few years has similarly affected the police and the CPS. The CPS can respond only to the materials offered by the police, as the noble Lord, Lord Carlile, mentioned. Both have lost 15% of their 2007-08 resources. My point is not just another attack on the Government for lack of resources, but simply to highlight that as the same time as the exponential rise in digital evidence sources and the number of reports of sexual offences, there has been a significant loss of resources to the police and the CPS.
The new Prime Minister, Boris Johnson, has promised another 20,000 police officers, which is to be commended. However, this will need to be driven forward. The gap in the number of officers will, in my estimation, take at least 18-24 months to be delivered. There is no similar promise for the Crown Prosecution Service, which I believe needs a similar injection of resources to replace the 15% it lost. Without that, even if we get more investigations, I am afraid we will get fewer outcomes for the reasons we have already discussed. Essentially, automation is the way forward. It would be a fantastic opportunity for everybody involved in the criminal justice process, but it is not here now. The resources being put into the system will not be there immediately, so we have to look immediately at the training of the police, prosecutors and the courts to ensure the system gets more efficient, quicker and more effective in the long run.
Until the previous speaker I was going to say that I thought that the Scottish system might have lessons to offer us, because the procurator fiscal gives direction in investigations, rather than the police submitting a file to ask for advice. Sometimes that can be a very good model to follow, but I am afraid, based on the evidence I heard, I cannot possibly support it any more.
If it is true that the CPS is trying to anticipate, as people are worried about, the response of a jury to the evidence it might hear, then there are two major challenges to this approach, since it is difficult for any lawyer or anyone to try to estimate how the evidence will be heard by a jury. First, the UK still does not allow research into how juries make their decisions. It is a secret, so the CPS and all of us will struggle to understand what is or is not persuasive evidence. What is it that drives our prejudices? What will make a difference in a jury room? America allows this. In fact, what happens in a jury room in America can be discussed openly in certain states. I am not arguing for openness in decision-making by juries, but clinical and academic research can make a real difference and help us to understand, particularly in sexual offence cases, what might be helpful in presenting future evidence.
As was again touched on by the noble Lord, Lord Carlile, at the time of an attack many victims are vulnerable. Some research suggest that 70% of them are vulnerable by age, mental ill-health, alcohol consumption or the effects of drugs. In fact, in many cases the very reason why they were targeted is that vulnerability. That of course affects their recollections, which can be fragmented and appear inconsistent. It is just another complexity in estimating the value of the victim’s evidence before it is presented to a court. I support the noble Lord’s point about judging it on its merits, but I can see equally that good lawyers are trying to make sensitive decisions about how they put victims under pressure in a court case, where, in an adversarial process, no matter how sensitive the defence or the prosecutor, the victim will feel a great deal of pressure to justify their claims. The victim’s perspective is very difficult for any lawyer or police officer to try to estimate to make sure that these offences are investigated properly.
In response to the point made by the noble Baroness, Lady Newlove, about the length of time that investigations and charging decisions are taking, the changes in the bail law have had an impact. The noble Baroness, Lady Chakrabarti, said that the length of time had doubled. There is now a fixed limit on the length of bail that can be given by the police, which, broadly, is a good thing. Unfortunately, it has led to people not being given bail. The investigation carries on probably for at least as long as it would have done with bail. It is accommodating the digital evidence problem but has, I am afraid, led to a confusion for victims: ‘people who are not on bail do not have conditions placed on them, and relatively few people are being put on bail. The impact of that should be considered in the review.
The digital evidence problem, the compounding effect of resources and the attempts by lawyers to anticipate a jury’s reaction to evidence are three things which might complicate these particular cases in the ways that we have heard.
My Lords, I too congratulate the noble Baroness, Lady Chakrabarti, on securing this debate, which responds to widespread and justified public concern about the failure to prosecute and convict rapists, and the delays involved.
The first focus of this question is on delays in processing rape cases. I do not believe that the serious and increasing delays are the result of CPS policy. I believe that they reflect the underfunding of the CPS and the criminal justice system generally—a point ably made by the noble Lord, Lord Hogan-Howe. Anyone who has read The Secret Barrister will appreciate the degree to which the system in general and the CPS in particular have been damaged to breaking point by repeated and unacceptable cuts in resources. Staff throughout the system are overworked and forced to cut corners. Morale is at an all-time low. Good, public-spirited staff are leaving in all areas and at all levels. It is therefore no wonder that inefficiencies and delays are endemic, wasting what limited resources there are. Anyone who has spoken to criminal barristers, solicitors, court staff, judges or CPS staff recognises that the depiction of the system in The Secret Barrister is no exaggeration. It is at least well-balanced; if anything, it is an understatement.
We know that a very high number of rapes go unreported, understandably. Yet underreporting of rape encourages perpetrators to believe that they can force victims into sex without fear of the consequences. The fall in the number of reported cases leading to prosecution makes matters worse. The brave and very public accounts of rape given by so many in the #MeToo movement have brought home to us all the prevalence of these abhorrent attitudes and the offences that go with them.
There are many reasons why victims do not report rape. Embarrassment, the prospect of the ordeal of giving evidence and being cross-examined and the fear of not being believed all play their part. Many victims fear disruption to their lives, particularly when they are in a relationship with the offender. The widely publicised failure of reports of rape to lead to convictions is another deterrent. Delay, and the prospect of victims having to put their life on hold and being forced to hang around, with the threat of a trial hanging over them for months or even years, is a major reason for victims’ reluctance to report rapes which they desperately wish to put behind them. Yet there is not a word about delay in the entire CPS policy document, the Code of Practice for Victims of Crime, or even in the Prosecutors’ Pledge. These omissions are highly significant.
Last Friday, we debated the Private Member’s Bill on victim support proposed by my noble friend Lady Brinton. Her Bill calls for a legal right for victims not to be subjected to unnecessary delays. It should become law, and the Government should provide the resources to implement the pledge. Victims have been greatly encouraged by the support they received from the noble Baroness, Lady Newlove, when she was in office.
The second focus of this debate is the CPS guidance. The Policy for Prosecuting Cases of Rape was published in 2004, and updated just once, in 2012. Yet public attitudes to rape have been changing rapidly. Traditional but wholly unacceptable—and, bluntly, sexist—views of rape, as highlighted by the noble Baronesses, Lady Newlove and Lady Bryan, have rightly been challenged, exposed and jettisoned. I accept from the noble Lord, Lord Carlile, that, very largely, on decisions to prosecute as well as on delay, the policy is not the problem. The problem lies with its implementation, and failures there are largely attributable to the problems within the CPS that I identified in relation to delay. However, there is considerable room for updating the policy as well. Perhaps I may pick up a few discrete points where specific changes might encourage victims to report rape.
The policy still countenances continuing with a rape prosecution against the wishes of the victim, who might still be compelled to give evidence. The threat that a victim’s choice can be overborne in this way is unacceptable and may inhibit reporting. In practice, I suspect that prosecutions are rarely pursued against the victim’s wishes. Can the Minister tell us how often this happens?
The disclosure obligation threatens victims with embarrassment, distress and humiliation. Of course, the prosecution must comply with its duty to disclose relevant evidence to the defence. However, prosecutors and police must be sensitive about the collection and disclosure of evidence on victims’ mobile phones and devices. I reach no conclusion as to whether current national police consent forms are unlawful, as was asserted by the noble Baroness, Lady Chakrabarti, but they certainly do not meet this need for sensitivity. The noble Baronesses, Lady Chakrabarti and Lady Newlove, both used the graphic phrase “digital strip-searching”. It is an accurate description of victims being effectively required to hand over their mobile phones for the police to trawl through all their data, otherwise no prosecution will ensue. Police must understand that a mobile phone is part of its owner’s identity, and that their invasion is very personal. Of course, mobile phone downloads may help test a defence of consent and have sometimes led to just acquittals. The rape trial of Liam Allen, a psychology student at Greenwich, collapsed last year, after a two-year delay, when the complainant’s mobile phone records corroborated his defence of consent. The prosecution, however, must be selective and seek, and disclose, only material likely to be relevant. Even then, surely phones can be quickly handed back to victims.
The noble Lord, Lord Hogan-Howe, made an important suggestion on this issue: namely, that trawling through records could be limited by a requirement for the defence to obtain production orders. He also made important points about the need for resources, in view of the proliferation of digital evidence.
I turn to special measures—measures that protect victims from the unpleasantness of giving evidence, particularly that of having to face their assailants—such as giving evidence from behind a screen or from a remote location by video link. Yet the guidance and the code contain no right to special measures, only the possibility of permission for them on application by the Crown. The Bill introduced by the noble Baroness, Lady Brinton, would give children or adults who are vulnerable—as rape victims generally are—a statutory right to give evidence from a remote location or from behind a protective screen. Such a right would remove from rape victims one of the horrors of a trial. The possibility that special measures might be awarded does not fit that bill.
Finally, in sexual offence cases victims are entitled to anonymity in the media. Yet the policy document states as a fundamental principle that an accused is entitled to know the name of their accuser and that only in exceptional circumstances may a court allow witnesses not to give their name in open court. Is that right today, in cases where the victim is not known to the defendant and when, in the age of the internet, tracing people by their name is so easy? Why should the right of the victim to privacy not prevail? This is yet another area for rethinking.
Further changes are needed, but time is short. My essential point is that we need to update our procedures to remove those features that inhibit the reporting of rape, and encourage a drive to make rape prosecutions less difficult and more humane for victims—without reducing their fairness for the accused—with the ultimate aim of reducing the incidence of this horrible crime.
My Lords, I thank my noble friend Baroness Chakrabarti for bringing forward this important debate, and all the Peers who have spoken, showing the wealth of experience we have around the House in this field, providing detailed explanations of the problems involved in cases of rape, and suggesting what needs to be done to improve the situation.
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In April, the National Police Chiefs Council, the Crown Prosecution Service and the National College of Policing launched the new digital device extraction and digital processing notice to all police forces. This required rape victims to hand in their phones for full data download. A number of noble Lords have spoken about the difficulties and concerns this is bringing about. Rather than seek consent for specific digital evidence, the new policy asks complainants to confirm that they understand that their devices may be subjected to unlimited data searches. Victims are told that if they do not consent their case may not continue, and that if evidence of any other crime is found on the phone it will be investigated. The noble Baroness, Lady Newlove, spelled out quite clearly the effects of that.
Campaigners have warned police that excessive demands for victims’ data are unlawful and are obstructing justice by leading to cases being dropped. This new policy was released despite many objections by campaigning groups, including Rape Crisis, the Centre for Women’s Justice and the End Violence Against Women coalition.
The new Victims Commissioner, Dame Vera Baird, noted recently that the National Police Chiefs Council and the CPS had published this digital download consent form in April despite the strong disagreement of experienced rape support organisations, police and crime commissioners, and my predecessor. The instructions attached to it make it clear that if there is no consent to—as a minimum—the extraction of all data, except deleted material, the case may not proceed. Dame Vera said that this was wholly disproportionate. Why are the organisations that are complaining about this not listened to? When someone with the status of Dame Vera Baird makes remarks like this, with all her experience, surely the Government—and all those concerned—should listen.
The Guardian was mentioned earlier in the debate, and it has published quite a lot about these recent cases. One article showed that extremely intrusive requests for permission to access all electronic devices and personal records, including health, social services and school records, are routinely made by some police forces to those who report rape even before they begin the investigation. Does the Minister agree that this cannot be right? Women’s organisations are concerned that knowledge of such a level of intrusion and scrutiny induces profound anxiety for many rape victims who are thinking about reporting, and they could be put off because of it.
While preparing for this debate, I listened to a podcast about Rebecca—which is not her real name. She was raped at knifepoint and held prisoner for two days by her boyfriend, a man who was known by the police to be violent. Despite the evidence of violence against Rebecca, the CPS dropped the case, saying that WhatsApp messages that she had sent to placate her attacker could be misinterpreted by the jury. In another case, Gina—also not her real name—was raped repeatedly by her husband, but the case was dropped again because the CPS felt that the jury might not understand the dynamics of coercive and controlling relationships. That certainly does not encourage victims of rape to come forward.
The new national consent forms authorising detectives to search texts, images and call data are proving controversial. Indeed, a campaign to challenge the controversial “digital processing notices” was launched today in Parliament by 10 campaigning organisations. They allege that such notices are highly likely to infringe victims’ data protection and privacy rights and cause delays to investigations, as police and prosecutors have warned that, in some cases, if victims do not allow the contents of their phone to be downloaded, they may not be able to pursue an investigation.
The director of Big Brother Watch said:
“These digital strip searches”— that term has been used several times in this debate, because I think that is what it feels like—
“are a gross invasion of victims’ privacy and an obstruction of justice. Our phones contain emails, social media accounts, app data, photos, browsing history and so much more. These phone downloads can even exceed the information gathered from a police property raid”.
Dame Vera Baird said:
“Unless they sign the entire contents of their mobile phone over to police search, rape complainants risk no further action on their case. These are likely to be traumatised people who have gone to the police for help.”
What are the Minister’s views are on such an invasion of privacy?
Harriet Wistrich, the director of the Centre for Women’s Justice, has said that her organisation is,
“preparing a legal action on the basis these consent forms are unlawful as they discriminate against women—who are the … majority of rape victims—as well as a violation of the right to privacy, and of data protection principles”.
Although this has been a really good debate that has highlighted some very worrying problems, the justice system should be there to support victims. This new measure of using digital devices to obtain evidence brings great worries to victims. All support and encouragement should be for victims who have had the courage to come forward and report the crime. They should have every right to object to the use of their personal data where it is not relevant to the case and not be told that, if they do not do so, it may not be possible to proceed with their case.
Much has been done in recent years to encourage victims of rape to come forward to receive justice and to ensure that the perpetrator is brought to justice. I hope the Minister will be able to reassure us that he will look at this matter, bearing in mind all the comments that have been made. Something must be wrong if so many have raised all the difficulties. I ask the Minister to look at this matter again and I look forward to hearing what he has to say.
My Lords, I thank the noble Baroness, Lady Chakrabarti, for securing this debate. I join other noble Lords in expressing my thanks to the noble Baroness, Lady Newlove, and congratulate her on all the work she has done during the past seven years as the Victims’ Commissioner.
Clearly, rape and sexual violence are devastating crimes which have a significant and profound impact on complainants. It is clearly of the utmost importance that such crimes are dealt with robustly. The CPS has undertaken extensive work over the past decade to ensure that specialist prosecutors are fully equipped to deal with the particular complexities of rape cases. It is recognised that these are extremely serious cases that have to be approached as robustly as possible.
It is true that sexual offences continue to take longer to progress through the criminal justice system than other criminal cases. Clearly, that can be highly distressing for complainants and, indeed, for those accused in such horrific cases. Cases involving sexual offences, especially rape, are some of the most challenging and complex that the CPS has to deal with. They involve very little corroborative evidence in comparison with other cases, and often result in prosecutors having to consider one person’s word against another’s in trying to balance the strength of a case. Unfortunately, as a number of inquiries are needed to ensure that a case is thoroughly investigated, it means that they can take longer than other criminal cases.
A number of factors can contribute to the time it takes for a charging decision to be made. For example, the CPS increasingly gives early advice to police about reasonable lines of inquiry needed to build a case. This means that prosecutors may be engaged earlier in the process than they would have been previously, often before the police investigation is complete. That means that it may take longer from the point of initial referral for a charging decision to be made, as police investigations will often be ongoing after cases have already been sent to the CPS.
However, early investigative advice is part of the important collaborative work between investigators and prosecutors to ensure that a case is robust before it progresses to court and that issues do not arise late in the process. The noble Lord, Lord Hogan-Howe, alluded to the position of the procurator fiscal in Scotland and the system there. It may be that that has something to commend it. Wider reference was made to the system of criminal prosecution in Scotland: the issues of corroboration and the not proven verdict. These being devolved issues for the Scottish Government, I would not wish to venture an opinion on them from the Dispatch Box. As has been observed, they have been the subject of a recent report and will be subject to consideration in future.
There has been huge growth in the volume of digital evidence, particularly in rape cases. That is a complicating factor in the gathering and analysis of evidence in all cases, including those of rape. As part of ongoing work under the national disclosure improvement plan, the CPS continues to work closely with the police to improve the processing of digital material. On
The noble Baroness, Lady Chakrabarti, raised the matter of CPS guidance on pre-trial therapy. I assure noble Lords that the CPS is clear that complainants and witnesses should not be discouraged or prevented from having access to therapy and counselling before or during the trial process. The guidance is reviewed regularly, and the CPS is working with the police, National Health Service and other voluntary sector providers to develop revised operational practice guidance on pre-trial therapy. The renewed guidance will enable all complainants to receive the therapy they require in a timely fashion, both to assist their recovery and to assist them in giving evidence to the best of their ability, having regard to the trauma they may have suffered in the course of the crimes in question. Consultation on the new draft guidance began last summer and has gone through more than 20 iterations. A final consultation with stakeholders on the guidance is now under way, and it is intended that the renewed guidance will be published later this summer. All CPS guidance is regularly reviewed and refreshed, to ensure that it supports prosecutors robustly in making charging decisions and that the tests set out in the Code for Crown Prosecutors are correctly applied.
Specific reference was made to the merits-based approach. The noble Lord, Lord Carlile of Berriew, gave a detailed analysis of the merits-based aspect of the approach in this matter. His observations and analysis closely followed those set out by my right honourable friend the Attorney-General in a letter of
I assure noble Lords that the specialist prosecutors who work on these cases still have access to extensive guidance to assist them in making charging decisions, including on the need to avoid the myths and stereotyping which occur in this kind of case. That is particularly important because, at the end of the day, Crown prosecutors have to take a view on the evidence before them, putting to one side any idea that a jury could be swayed by the myths and stereotypes that in the past have so often been taken into account when looking at charging or proceeding to trial in cases of this kind. I emphasise that there has been no change in policy, and changes made to the guidance do not alter the code that is relied upon by Crown prosecutors.
Concerns have been aired in this House, and by the media and third parties, about the digital consent forms that were introduced in February. Some commentators have stated that these forms subject complainants to a “digital strip search”; that term has been repeated in this House. This language is extremely unhelpful. It is important that concerns should be heard, but inflammatory and provocative terms such as this will not help to improve public confidence in the reporting of these horrendous crimes. I urge noble Lords, the media and third parties to consider carefully before they resort to such inflammatory language. This is a complex area, and a sensitive balance has to be struck to support complainants and their right to privacy, while allowing the police to pursue all reasonable lines of inquiry to ensure that the defendant can receive a fair trial. The noble Lord, Lord Marks, referred to the case of Liam Allan, where the prosecution ultimately collapsed because of the disclosure of some digital material by the prosecution to the defence. The noble Baroness, Lady Gale, touched upon a conundrum. She said that data should be available only when it is relevant, but it should never be relevant where it is not relevant to the case. The question is how we determine whether the digital material is or is not relevant to the case, unless we examine it. That is the conundrum often faced by those dealing with matters in this complex area.
I reiterate a point made by the now Director of Public Prosecutions, Max Hill, who made it clear following his appointment in November 2018 that mobile telephones should not be examined as a matter of course and that only reasonable lines of inquiry should be followed. That approach has been endorsed by the Court of Appeal in a case where the CPS successfully appealed a Crown Court decision to stop a case due to a complainant’s telephone not having been downloaded. The CPS and the DPP are supporting the view that such material should be accessed only where it can be established that it would be relevant to the complaint in question.
I assure the House that requesting access to a complainant’s phone only in cases where it is relevant remains the position. The forms that have been introduced simply apply a consistent approach across all 43 police forces, to be employed where it is reasonable to make a line of inquiry that involves an appropriate examination of a complainant’s phone. However, it is of course important that we establish consistency and that there be a clear understanding as to the scope of the requests for digital data.
I am sorry to interrupt the noble and learned Lord, but the problem that most of us have been concerned with on these consent forms is, first, the blanket nature of their use—the noble and learned Lord said something to respond to that—and, secondly, the implied threat that, if the consent form is not signed, no prosecution can proceed. That aspect of it is particularly worrying, and it is a matter that has been aired in the media quite heavily.
As far as I am concerned, neither the DPP nor the CPS would endorse the implied threat that, if there was a reason for not signing a consent form for the disclosure of digital material, they would simply refuse to contemplate a charge on a case such as this, or indeed in any other case. I believe that the problem stems from the use of language, and that such terms as “digital strip search” merely seek to underline how it is possible for parties to misunderstand the scope of the inquiry that is being carried out here. What has to be emphasised is the need to secure justice for the complainant and for the accused.
On that point raised by the noble Lord, Lord Marks, could the Minister tell the House what the legal foundation for this form is? Does it have foundation in any statute? I think we can all agree that it at least to some extent creates an interference with privacy rights; if it does so, where is the foundation that makes it in accordance with law? If it is consent, and therefore not based on any statutory foundation, is that consent real if complainants fear that their case will not be taken forward?
In so far as I follow what the noble Baroness is saying, it requires first of all a balance between rights that arise under the European Convention on Human Rights—the right under Article 6 to a fair trial and the right under Article 8 to privacy—and the need to ensure that any intrusion into these matters is in the public interest and can be properly justified. As to the specific foundation for the consent form, in carrying through a prosecution it is necessary for reasonable and appropriate inquiries to be carried out in the public interest. A consent form is therefore produced for the complainant to consider signing. The situation is this: the complainant may refuse to sign that consent form, but in those circumstances that might well intrude upon the ability of the police properly to investigate a particular complaint.
I appreciate all this dialogue, and I know this is a timed debate, but in all of this we are losing the victim as a person with sound mind who has been told to sign this form. That is why I mentioned in my speech that this is about humanity; I am afraid that they are told that if they do not sign this consent form there will be no prosecution. I would really like the Minister to look at this and understand the victim’s journey, because we are losing sight of what they are going through in the first place to come forward and report this crime.
I am not at all aware of a policy in place such that, if a complainant is presented with a consent form, they will be told, “If you do not sign it, there will be no attempt to pursue and investigate a complaint or crime”. That is the difficulty with taking matters from the way they are sometimes reported in the media.
In view of the time limit on this debate, I will add only this. As the House is probably aware, the Attorney-General’s review of the effectiveness and efficiency of disclosure in the criminal justice system was published last November. Further to the review’s recommendations, work is ongoing to update the Attorney-General’s guidelines on disclosure. The intent is to ensure that the guidance to investigators and prosecutors carrying out disclosure obligations is both clear and up to date. Changes to the Criminal Procedure and Investigations Act code of practice are also being considered so that we can bring all of this together later this year.
In these circumstances, I seek to reassure the House that cross-government work is ongoing to review all aspects of the criminal justice system’s response to rape cases, including CPS processes and decision-making, and the matter of disclosure.