Crown Prosecution Service: Rape and Sexual Offences

Baroness Newlove Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Baroness Newlove (Con)]

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.

--- Later in debate ---

[Lord Keen of Elie]

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.

[Baroness Newlove]

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.

[Lord Keen of Elie]

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.