Crown Prosecution Service: Rape and Sexual Offences

Lord Carlile of Berriew Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Newlove. I pay tribute to her stellar contribution to the criminal justice system. I also thank the noble Baroness, Lady Chakrabarti, for bringing this very important Question to the House.

My reason for taking part in this debate is that, over many decades now, I have prosecuted, defended and sat as a part-time judge in rape and serious sex cases, so I have that experience to offer. I should probably inform the House, although I do not regard it as a declarable interest, that Alison Levitt QC, my wife, was the principal legal adviser to the Director of Public Prosecutions for five years and was responsible for the rape policy, its production and its instruction in the service from 2009 to 2014. I say to the noble Baroness that my belief—I have obviously read the policy extremely carefully on numerous occasions—is that the problem is not with the policy but with its application. I shall turn to that in due course.

My knowledge of the Crown Prosecution Service leaves me with the view that we should support those men and women who are lawyers and Crown prosecutors in the service and have to deal with these cases. They can only do what can be done with the material that they are given. I urge that there could be better liaison between the Crown Prosecution Service and the police: sometimes they sit in silos when they should be talking to one another. As it happens, when my noble friend Lord Hogan-Howe was Commissioner of the Metropolitan Police, I was for three years chairman of the London Policing Ethics Panel and the about-to-be Prime Minister was the Mayor of London.

I went out on ordinary night patrol with officers in north London and saw how they behaved towards people who had sexual complaints to make. I can say that, in almost every case, they behaved immaculately and showed that the training of police officers is fit for purpose. The problem that has arisen with the electronic communications issue is that the judgment of well-trained police officers has given way to process, so they are obliged to present forms which are not fit for every purpose to individuals faced with the most terrible crisis of their lives. My encouragement would be that the CPS and the police should talk about a simple old adage: circumstances alter cases. When an alleged victim, or complainant as I prefer to call them, alleges that she or he has been raped or subject to a serious sexual offence, the appropriateness of every request has to be instinctive in the minds of both the police officers concerned and the prosecutors considering the case.

It is worth noting—the noble Baroness, Lady Chakrabarti, has given most of the statistics and I will not repeat them—that fewer than 4% of women who report sexual attacks now expect their cases to reach trial, according to recent research. That is a completely shocking and true statistic. As I see it, there has been a subtle and undisclosed policy change within the Crown Prosecution Service; this was recognised and commented upon by the colleague of the noble Baroness, Lady Newlove, the independent Victims Commissioner for London, Claire Waxman, and others. Indeed, in September of last year, the Guardian—which is not always right but was, I believe, on this occasion—revealed that rape prosecutors in some specialist training seminars had been urged to take a more risk-averse approach to rape cases after criticism of low conviction rates. That has nothing to do with the policy; it is to do with the application.

It is worth reminding ourselves that there has been a fundamental change—years ago; certainly from the time when I was first practising—in the approach to serious sex cases. Corroboration used to be required: independent confirmatory evidence, which is to say, independent of the complainant. For years now, corroboration has not been required. The starting point has to be that, if there is a complainant, male or female, who raises a credible case of rape, on the face of it, that is enough to justify a prosecution, all other things being equal. There are very few “stranger rape” cases and they are usually quite easy to prove. Most are usually convicted although not all; there are some terrible stories of cases where there have not been convictions. The real mischief arises in date rape and familial rape cases, where there will be no independent observers.

I would like to raise a few basic points of which the House and, above all, prosecutors, need to be reminded, and I will echo something absolutely correct that was said by the noble Baroness, Lady Newlove. When the prosecution applies to alleged rape cases, the same code test should apply that applies to all other cases—the test of rape should be exactly the same as that for prosecution of assault, robbery, fraud or any other criminal offence—and there should be a complete exclusion from the police and prosecutors’ minds of those myths and stereotypes of which the noble Baroness spoke.

There was a time—I confess to being old enough to have been around to make these kinds of suggestions in the 1970s and 1980s—when barristers actually asked complainants how they were dressed. The implication was that if a female complainant was wearing a short skirt or, heaven forfend, fishnet tights or anything of that kind—or if she was a sex worker, mentally ill or in some way physically or mentally disabled—she was a less worthy person to be a complainant in a prosecution. People were acquitted in those days because those myths and stereotypes had credence. In the modern era, well into the 21st century as we are now, let me remind those who are interested that sex workers are raped, women are raped by their husbands and girls who wear fashionable, short clothes and fishnet tights mean it when they say no to somebody who takes an interest in them. Those myths and stereotypes are entirely inappropriate.

There are some types of case where it is true that convictions may be hard to obtain because there is a residue of those myths and stereotypes. However, if the prosecutor applies the CPS code test with what is called the merits-based approach, which is used in all such cases, and if they and the police believe that the claimant may well be truthful and reliable, there has to be a prosecution, prima facie. Date rape cases are an obvious example. If the Crown prosecutor were to apply a purely predictive approach based on past experience of similar cases—which I am told is sometimes called the bookmakers’ approach—she or he might well feel unable to conclude that a jury was more likely than not to convict the defendant. Coming to that sort of decision in effect resuscitates the old corroboration requirement, which Parliament abolished years ago. With the merits-based approach, the question of whether the evidential test was satisfied should not depend on statistical guesswork.

In the context of sexual offences, this means that even though past experience may tell a prosecutor that juries may be unwilling to convict in cases in which, for example, there has been a delay in reporting the offence, or the complainant was drinking at the time the rape was committed, those kinds of prejudices against complainants should be ignored for the purposes of deciding whether there is a realistic prospect of conviction. In other words, the prosecutor should proceed on the basis of a notional jury which is wholly unaffected by the myths, stereotypes and prejudices of the type which, sadly, still carry some traction in some quarters. They should ask what the merits of a prosecution are, taking into account what they know about the defence case, of course, and whether, if the defendant is convicted, it would be justified, safe and merited. It is not a different test, but if you apply the merits-based approach, it just means that the prosecutor is reminded of how to approach the evidential stage of the full code test.

The statistics presented in this debate tell a terrible story. They mean that decent young men and women who have been sexually assaulted lose their confidence in the rule of law, something the noble Baroness, Lady Chakrabarti, quite rightly emphasised. We should not allow any such situation to continue, while of course always maintaining the independence of the Crown Prosecution Service.