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.