Rape: Prosecutions

Lord Hogan-Howe Excerpts

Thursday 30th January 2025 Grand Committee

[Lord Hogan-Howe (CB)]

My Lords, I thank the noble Baroness, Lady Jones, for this well-timed opportunity to debate this issue. I did not disagree with anything that the noble Baroness, Lady Wyld, just said. The problems of rape investigations, prosecutions and convictions are well known and understood; they have been there too long. What is less well developed are the solutions, and I will try to address that today.

Only one in six rapes is reported and of those reported, only one in 50 leads to a charge. Of those charged, only one in two leads to a conviction. That is a terrible pyramid, I am afraid, of failure, and a quite pathetic outcome. When we consider that crimes of violence—which these are—are crimes where the victim was present, is able to provide a description of the offender and perhaps even the name, and can say where evidence may be found, it is even more bizarre that we are not getting better outcomes from our system. The investigation is less likely to identify the suspect in a stranger attack, but less likely to see a prosecution where there is an existing relationship. The issue becomes one of proving consent, unless, of course, the victim is too young to provide that consent in law.

The whole process is hindered, in my view, by three things. First, this offence involves the most intimate and private of events: sexual activity. That makes it difficult to recount in public, to talk about to anyone else and to talk about exactly what happened. That is a challenge for anybody. Secondly, it takes a long time for an investigation to get to court, which causes obvious problems for the victim in recounting the evidence and persuading a jury that something happened. Finally, proving lack of consent requires careful collection and presentation of evidence. I believe that we must deal with these three issues in a radical way if we are to overhaul the system.

My suggested improvements are these. First, the police are most efficient and effective when they deploy in teams. We see that in counterterrorist investigations, murder investigations and complex fraud cases. However, with rape offences, single officers are often deployed. There are some great officers who can make progress, despite the challenges, which we all know about, but I am afraid that, increasingly, we need a team approach. This is a resourcing issue: you must either move them from what they are doing or give them more, but it needs to be addressed. The time for a team approach has come. We could get the same sort of outcomes that we see with murder cases. During my time and now, murder investigations in London had a detection rate of around 95%. It is entirely possible to have good detection rates—if you apply the right resources and the right skills to make sure that you have the right person and can convince a jury.

Also, rape has become a more complex crime to investigate. Far more digital evidence is now available, which is great, but you have to find it and share it with the defence. It has to be sifted, and presented in a way that a jury will understand. These are new and significant skills that the police are going to have to learn.

The police also need to investigate the history of the suspect’s prior relationships. We have a history of investigating the victim’s prior relationships. That has stopped—in a good way—but we do not do enough to check whether the suspect’s previous behaviour and relationships indicate that this incident was likely to happen. Often, obviously, we do not know who these people are, but we could investigate and discover who they might be.

As has been said, rape reporting and charging have been inhibited by the victim’s experience of reporting. Police attitudes have improved drastically over the past 20 years, but they are clearly still not good enough. People are trying to make progress, but one of the challenges for prosecutors and investigators is that they anticipate the victim’s experience in court. We have, I am afraid, an adversarial system that tries to destroy the victim and their evidence, albeit not as directly as it used to. Why cannot the adversarial system become more of a search for the truth in these cases? It is entirely possible. Iceland has a good method of dealing with child victims of crime: it carries out a search for the truth, not an attack on the person who claims they were attacked.

Sadly, juries tend to make moral judgments, even if the law says that they should not. Investigators and prosecutors overly anticipate the jury’s conclusions and therefore do not even get to the charging stage. That also infects the whole investigation process. I would argue that the adversarial legal system does not provide a good context in which these cases can go forward.

Of course, 70% of victims are vulnerable at the time of the attack. They are vulnerable because they experienced an attack, but they might also have had alcohol. They might be very young, very old, or mentally ill. That is often the reason why they are picked—because they are vulnerable. However, this does not make them a consistent witness later, I am afraid. Consistency is a test of truth. Any of us might ask, “You didn’t say that then, so why did you change your mind?” Unfortunately, some victims just do not have sufficient recollection to make them a powerful witness. The system has to acknowledge that and make sure that, if they are particularly vulnerable, the balance of the defence is put on to the suspect, so that we ask, “Was consent present or not?” We do that with children. A child below the age of 16 cannot legally consent to sex. What about somebody who is mentally ill? What about someone who is very old? What about somebody who was intoxicated because the suspect made them intoxicated? Should we look at shifting the balance of proof in those cases?

Does the CPS have the right charging threshold in these cases? At the moment, it is broadly 51%—the case is more likely to succeed than fail. Secondly, there is a public interest test: even if that is true, should we charge in this case? Perhaps we should consider whether there is a prima facie case and whether it is in the public interest to prosecute; or is there somewhere between prima facie and a reasonable chance of success? We have to look at making it easier to get these cases, which we know involve complex legal issues, to court. We should experiment with prosecutor-led investigations. People have said that that means the prosecutor is therefore less independent, but Scotland seems to manage with a procurator fiscal system. Why can we not do that here in England and Wales?

The Government are talking about dedicated rape courts. Perhaps we could arrange to have such courts, which would work quicker. In Scotland, murder cases get to court within 100 days for committal, so why can we not do that for rapes? Why can we not say that they have to be in court within 90 calendar days? It could be a different time limit, but the Committee knows the point I am making about a timely deadline. The courts could sit more often; they sit for only 220 days out of 365. Perhaps the judges could take shorter holidays, or we could have more judges. By getting more court days in these cases, we could make a real difference.

Finally, these cases might benefit from the researching of jurors. At the moment in this country, it is illegal to research jurors. Why can we not do that in these cases, in order to find out what evidence persuades a juror and what evidence does not? America can do it but for some reason, we deny the possibility of investigating jurors’ decision-making processes. Particularly in these cases, where privacy and intimacy are such big issues, perhaps we ought to consider more how a jury reaches its decision.

Drones: High-security Prisons

Lord Hogan-Howe Excerpts

Wednesday 15th January 2025 Lords Chamber

[Lord Timpson (Lab)]

I thank the noble Baroness for the question. Having run a business for many years and tried to find fantastic superstars to work with, I am well aware that we always want to find the best colleagues to work in our prisons. I am very engaged with the POA team as well. Noble Lords may be interested to know that we are currently at 99.5% staffing levels. That does not mean that everybody is trained and in the right place, but MoJ colleagues have made good progress on that. As regards the way recruitment works in our prisons, professionally trained assessors always take part in the interviews.

[Lord Hogan-Howe (CB)]

My Lords, our prisons are very good at keeping people in; I am afraid they are not as good at keeping things out. There are two symptoms of that: the large number of mobile phones and, as has been said already, the amount of drugs in prisons. Some 40% of the people who enter have a drug problem, but 60% of those who leave have one; they get their problem in prison. Drones are clearly an issue, but I am afraid that corruption is a bigger one. One of the biggest challenges is, I am afraid, that nobody is really concentrating on this issue in terms of investigation: the NCA is too diffuse, local forces are too busy, and the Prison Service has no investigative capacity. Would the Minister be interested in attending a short meeting on two distinct proposals to see how they might be able to do something about this? There would be some cost, but I promise him not too much.

[Lord Timpson (Lab)]

I thank the noble Lord for the question; I would be delighted to meet up and to learn more. The problem we have with serious organised crime in our prisons is that these people are in there to make money. They do that by selling phones and drugs, which creates debt and violence, so it is essential that we tackle this. We are giving more focus to our dedicated serious and organised crime unit and we are working across government, but the noble Lord is right that this is vital.

Criminal Justice System: Capacity

Lord Hogan-Howe Excerpts

Tuesday 22nd October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend Lady Mallalieu for her question. I very much remember the noble Lord regularly asking for a royal commission. The reality is that we feel that we have a big job of work to do on reviewing sentencing and then managing the whole prison population and estate, so that it stops increasing. That is where our focus is right now. I will take back the question of a royal commission to my right honourable friend the Lord Chancellor, but, to be frank, I have not heard it spoken about in the time I have been in government.

[Lord Hogan-Howe (CB)]

My Lords, I support a smaller prison population, not just because there are not enough places for the people who have been sentenced but because there are too many people in prison. However, one of the consequences of releasing people early, at a quicker pace than one might have planned for, is that it will put more pressure on the police service. This Government made a manifesto pledge to increase the size of the police by around 4,000 officers, but we have not heard an awful lot about that since the Government took office.

Secondly, as has been mentioned by the noble and learned Lord, Lord Keen, and by the noble Lord, Lord Timpson, in passing, one of the measures for mitigating the recidivism of those who are released is tagging—normal tagging to determine where the person is and sobriety tagging, where alcohol is an aggravating factor, and now there is also drug tagging. Finally, the response to those tags when they are breached should go straight to the police, not to a private company to be emailed to the police to be dealt with some time later. Is the Minister able to respond to those points about resourcing?

[Lord Ponsonby of Shulbrede (Lab)]

I have just consulted with my noble friend Lord Timpson and I can reassure the noble Lord that we do have enough tags for the process which we are embarking on. I should also mention that both my noble friend Lord Timpson and I were fitted with a sobriety tag for a while to see whether it worked, and I can assure the noble Lord that it does work.

The noble Lord’s opening point was about more pressure on the police. That is right; there will be some more pressure on the police and also on the Probation Service and some social services such as housing. The philosophy underlying the Government’s SDS40 approach rather than the previous approach is planning down the whole pipeline, including people who will regrettably reoffend and how to deal with them. By managing this with a more planned approach, we hope and expect that we will reduce the chances of reoffending.