Crown Prosecution Service: Rape and Sexual Offences

Lord Hogan-Howe Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, for the opportunity to debate this important issue. There are various challenges facing the investigation and prosecution of rape, but the fundamental issue is that there are far more allegations of rape coming forward, with the statistics offered by the noble Baroness, Lady Chakrabarti, and it is taking too long for relatively few prosecutions to succeed following those allegations.

The Government are committed to a review of the current delays. I support that review as it will look into the concerns about the prosecution process, and I believe that it is due to complete in the spring of next year. It seems to me that there are three principal problems, intrinsically linked, that the review can consider. The first, which has already been mentioned, has to do with digital evidence. The second has to do with resources—both are affecting the Crown Prosecution Service and the Police Service. The third, which is directly affecting the Crown Prosecution Service, is how will a jury respond to the evidence with which it might be presented.

In terms of digital evidence, concern has been expressed —we have heard it again today—about the requirement for victims of rape and other sexual attacks needing to sign a consent form allowing access to their digital media. I share that concern, which I have mentioned here before. My concern is first from a position of principle. Traditionally, sadly, the courts were expected to pry into the sexual history of victims—the noble Lord, Lord Carlile mentioned this—to determine whether the present charge is more likely to be proven or not. Quite properly that approach has been vastly curtailed and will very rarely appear in a criminal trial. The critical question, of course, is whether consent is present during the charged offence, not whether previous relationships or behaviour could indicate that the allegation is unlikely to be true on this occasion.

However, many of the defence requests for digital media now deal with communication after the alleged attack, which is taken to indicate that consent was present at the time of the attack. Surely the evidence they should rely on should concern what happens at the time of the attack rather than events before or after it. However, if it is decided that this could be relevant, perhaps the CPS, the police or the defence should have to argue in court for a production order. This would put on record the reasons for the request and I hope reassure the victim at some level that this is not a trawling exercise, but one based on a well-thought-through defence that has some relevant facts to challenge.

Whether we stay with the present system or establish a new one, as the noble Baroness, Lady Newlove, touched on, there is a definite need for better communication with victims, who appear concerned that their privacy will be invaded. We can all imagine why. Whether it is well founded or not really does not matter, because any limitation on the potential for a well-considered investigation or on any victim coming forward—any obstacle at all to a victim’s confidence—surely should be addressed. Communication is one good way of making sure it can be addressed, but it is clear that at the moment the police or the CPS together are not reassuring victims about the purpose of that consent form or what it will be used for.

The second issue is the sheer volume of digital evidence available. I am told that there is now a common backlog in forces of four months to examine devices for all offences, because there are of course cyberattacks, online harassment and many other offences where digital evidence is directly relevant. It has become particularly relevant in sexual offences. The reasons for the backlog are, first, the number of devices available to all individuals. We can all probably appreciate that over the past 10 years we each have had probably more than one device. It is not one person with one device. Secondly, there is the number of locations on those devices where evidence might be discovered. It might be the call-logging system. Many parts of a digital device are relevant. Finally, there is the number of social networking sites and the evidence they contain.

At the moment, the evidence retrieval process has very limited automation. It still requires people to establish patterns, recover evidence and seek intelligence from the available material. This can mean examining emails, texts, WhatsApp, Instagram, Facebook—I will not make the list any longer, but we know that people communicate in many ways now. Where we expect to find the evidence is not always where it will be discovered. The police, the CPS and the courts system have been unable to keep pace with this tide of information. It might be relevant and useful to the prosecution or, of course, the defence.

Secondly, loss of resources over the past few years has similarly affected the police and the CPS. The CPS can respond only to the materials offered by the police, as the noble Lord, Lord Carlile, mentioned. Both have lost 15% of their 2007-08 resources. My point is not just another attack on the Government for lack of resources, but simply to highlight that as the same time as the exponential rise in digital evidence sources and the number of reports of sexual offences, there has been a significant loss of resources to the police and the CPS.

The new Prime Minister, Boris Johnson, has promised another 20,000 police officers, which is to be commended. However, this will need to be driven forward. The gap in the number of officers will, in my estimation, take at least 18-24 months to be delivered. There is no similar promise for the Crown Prosecution Service, which I believe needs a similar injection of resources to replace the 15% it lost. Without that, even if we get more investigations, I am afraid we will get fewer outcomes for the reasons we have already discussed. Essentially, automation is the way forward. It would be a fantastic opportunity for everybody involved in the criminal justice process, but it is not here now. The resources being put into the system will not be there immediately, so we have to look immediately at the training of the police, prosecutors and the courts to ensure the system gets more efficient, quicker and more effective in the long run.

Until the previous speaker I was going to say that I thought that the Scottish system might have lessons to offer us, because the procurator fiscal gives direction in investigations, rather than the police submitting a file to ask for advice. Sometimes that can be a very good model to follow, but I am afraid, based on the evidence I heard, I cannot possibly support it any more.

If it is true that the CPS is trying to anticipate, as people are worried about, the response of a jury to the evidence it might hear, then there are two major challenges to this approach, since it is difficult for any lawyer or anyone to try to estimate how the evidence will be heard by a jury. First, the UK still does not allow research into how juries make their decisions. It is a secret, so the CPS and all of us will struggle to understand what is or is not persuasive evidence. What is it that drives our prejudices? What will make a difference in a jury room? America allows this. In fact, what happens in a jury room in America can be discussed openly in certain states. I am not arguing for openness in decision-making by juries, but clinical and academic research can make a real difference and help us to understand, particularly in sexual offence cases, what might be helpful in presenting future evidence.

As was again touched on by the noble Lord, Lord Carlile, at the time of an attack many victims are vulnerable. Some research suggest that 70% of them are vulnerable by age, mental ill-health, alcohol consumption or the effects of drugs. In fact, in many cases the very reason why they were targeted is that vulnerability. That of course affects their recollections, which can be fragmented and appear inconsistent. It is just another complexity in estimating the value of the victim’s evidence before it is presented to a court. I support the noble Lord’s point about judging it on its merits, but I can see equally that good lawyers are trying to make sensitive decisions about how they put victims under pressure in a court case, where, in an adversarial process, no matter how sensitive the defence or the prosecutor, the victim will feel a great deal of pressure to justify their claims. The victim’s perspective is very difficult for any lawyer or police officer to try to estimate to make sure that these offences are investigated properly.

In response to the point made by the noble Baroness, Lady Newlove, about the length of time that investigations and charging decisions are taking, the changes in the bail law have had an impact. The noble Baroness, Lady Chakrabarti, said that the length of time had doubled. There is now a fixed limit on the length of bail that can be given by the police, which, broadly, is a good thing. Unfortunately, it has led to people not being given bail. The investigation carries on probably for at least as long as it would have done with bail. It is accommodating the digital evidence problem but has, I am afraid, led to a confusion for victims: ‘people who are not on bail do not have conditions placed on them, and relatively few people are being put on bail. The impact of that should be considered in the review.

The digital evidence problem, the compounding effect of resources and the attempts by lawyers to anticipate a jury’s reaction to evidence are three things which might complicate these particular cases in the ways that we have heard.