End-to-end Rape Review

Lord Falconer of Thoroton Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

The issue about the extent to which rape is properly prosecuted in this country is now a real one. The Lord Chancellor rightly apologised for the lack of prosecutions, yet did nothing to deal with the problem properly. He announced a sum of money, in the region of £150 million, most of which went to refuges. Refuges are very worth while but will not deal with the problem of the lamentably low rate of convictions for rape. The average amount of extra expenditure on rape cases, if one applies it to the number of rape cases the Government estimated last year, is £15 a case.

Why have the Government not made more resources available, if their apology is serious? Why have they not rolled out Section 28, which allows for victims of rape to give evidence as soon as possible after the crime has been committed and for their evidence to be recorded?

[Lord Thomas of Gresford (LD) [V]]

I congratulate the authors, researchers and statisticians who have contributed so much to this comprehensive and excellent review. I trust that the Government will fully resource its recommendations, but agree with the noble and learned Lord, Lord Falconer, that there is no sign of it so far.

I focus on one of the review’s findings—namely that, in 57% of all adult rape cases, the victim feels unable to pursue their complaint. Given that in 90% of cases the victim knows the perpetrator—as a member or friend of the family, fellow student or worker, friend or acquaintance—that may not be too surprising. I strongly suspect that very few of those withdrawals concern the small minority of cases where the perpetrator is unknown. I am interested to know whether the Minister has a figure for the percentage of withdrawals in cases of stranger rape.

So, what are the reasons for disengagement by the victim? First, there is delay. Giving evidence is always a stressful experience, as I know well. Standing exposed in a witness box with one’s honesty, accuracy of recollection and motives challenged is not pleasant. Giving evidence about intimate sexual encounters must be agonising and overwhelmingly stressful. Only those with a high degree of courage and persistence can be expected to stay the course without considerable support. I very much welcome the pilot schemes for the recording of evidence and cross-examination early, well before trial. How soon can those pilots be evaluated and rolled out? Months, if not years, of waiting for a trial must disincentivise victims pursuing their case.

Secondly, there is the intrusion into privacy. In January 2018, the noble and learned Lord, Lord Morris of Aberavon, introduced a debate on this topic. I suggested an algorithm which would require the defence to co-operate by setting out their case in a defence statement and, at that point, indicating keywords for the search of mobile phones. The revised Attorney General’s Guidelines on Disclosure, published in 2020, set out such a system and it is now operational. The review recognises the importance of privacy by its requirement that mobile phones be returned within 24 hours. If that is done, I hope this disincentive to reporting rape will be removed.

Thirdly, we come to sentencing. I am not convinced that longer and longer sentences have any benefit. The review points out that the minimum sentence guideline is now six years and that the average term served for rape is nine years. This increase in sentencing coincides with a decrease in convictions. So many cases depend upon consent, without these days, in England and Wales, any need for corroboration. The lack of consent by the victim must be proved beyond reasonable doubt, and that is the highest degree of proof.

A victim, already oppressed by delay in bringing a case to court, must generally also contemplate the destruction of the life of an offender whom she knows and may even love. That may also be a potent reason for her to disengage from the case. That there should be a substantial and significant sentence of imprisonment for rape is not in doubt, but excessive increases year on year may have unexpected consequences to the detriment of justice.

Ultimately, the jurors are the judges. Acquittals reflect societal attitudes. At the moment, judges seek hard to dispel the myths and prejudices of the past, with lengthy exhortations and directions to the jury—but attitudes begin in the classroom, and we must train teachers to inculcate respect for others and, above all, the meaning and parameters of consent.

In the last few years, we have developed teams of specialised investigators and prosecutors, special measures for court hearings and victim support services. All these are steps in the right direction but have manifestly had no impact on the rate of convictions. We must try harder. We will support the Government further in implementing the policies that are set out in this review.