Crown Prosecution Service: Rape and Sexual Offences

Lord Marks of Henley-on-Thames Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

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.

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[Lord Marks of Henley-on-Thames]

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.

[Lord Keen of Elie]

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.