Crown Prosecution Service: Rape and Sexual Offences

Baroness Chakrabarti Excerpts

Tuesday 23rd July 2019 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government what assessment they have made of delays in processing rape cases by the Crown Prosecution Service; and what steps they are taking to review the Crown Prosecution Service’s Rape and Sexual Offences guidance.

[Baroness Chakrabarti (Lab)]

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.

--- Later in debate ---

[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.

[Baroness Chakrabarti]

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?

[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.