Legal System: Prosecutorial Policy

Lord Thomas of Gresford Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

It is a pleasure to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I agree with every word he said, particularly on indeterminate sentences. I turn, however, to the issue of rape. A startling statistic from the organisation Rape Crisis is that three-quarters of all adults who contacted their centres in 2016-17—and there were upwards of 65,000 of them— complained of sexual violence that had occurred at least 12 months earlier. Out of every 100 who experience sexual violence, only 15% choose to report it.

What follows? The Ministry of Justice’s statistics, An Overview of Sexual Offending in England and Wales, published in 2013, estimated that there were between 60,000 and 95,000 rapes annually of men and women in this country. As a result of the low reporting rate, however, only 15,000 were recorded by the police as crimes. Of these, only 3,850 were marked as detected. There were only 1,070 convictions. Do people who commit rape steal away into the darkness, never to be identified? No, not at all: 90% of those who complain of rape know who the perpetrator is. For the legal system to deliver justice to victims, the first step is for the victim to make a timely complaint.

If a person is attacked by a stranger—the one in 10 case—there is usually no difficulty in the victim complaining. The police swing into action: they identify suspects through descriptions of the attacker, forensic examination of the attacked person, and careful examination of the scene. DNA is of critical importance and frequently CCTV plays a part. A delay in a complaint of this type will obviously greatly hinder an investigation, and where a stranger is involved, the chances of a conviction are seriously diminished.

However, that is not the typical case. Far more common are acquaintance rapes, where the complainant is able to identify the suspect as someone known to them: a neighbour, a friend, or someone known through dating. Then there are domestic or relationship rapes committed by people who are, or have been, intimate partners or family members. In these cases, there are very often serious disincentives to lodging a complaint, such as the intimate nature of the offence, feelings of shame or fear that the complainant will not be believed or might be blamed for the offence. There may be a lack of confidence in the criminal justice system, or fears for personal safety or the safety of children. It is, of course, entirely understandable in human terms that one or more of these reasons may cause a complaint to be withheld, but it obviously makes the investigator’s task much more difficult.

One Ministry of Justice statistic is telling. Its researches revealed that 57% of female complainants between the ages of 16 and 59 told someone but did not tell the police; 28% told no one and only 15% told the police. No one told the police but nobody else. Your Lordships will appreciate, therefore, that the evidence of a recent complaint to a relative or friend, admissible under Section 120 of the Criminal Justice Act 2003, may be of real significance.

Another issue raised by the noble and learned Lord, Lord Morris, was disclosure, which is a tricky problem. In the recent case of Allan, a huge number of emails and messages had been collected by the police from the complainant. Reports do not say precisely why or how. Clearly, if there was something in them, as there was, which would assist the defendant, it had to be disclosed. I wholly commend the barrister, Jerry Hayes, a member of my chambers, for his action as the prosecutor in informing the defence and ultimately discontinuing the prosecution. It was in the highest traditions of the Bar. I also commend the CPS and the investigators who must have drawn his attention to this material.

It must be realised, however, that it cannot be right routinely to require a complainant to disclose each and every email and message that might be on their mobile phones. A requirement to turn all intimate files over to the police must be a disincentive to making a complaint in the first place. Disclosure must be proportionate. My noble friend Lord Beith asked how it was to be managed. The Allan case illustrates the need for a further protocol that, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, would be fair both to the complainant and to the defendant.

What I have in mind is that where a defendant clearly raises the issue of consent in interview at an early stage, he should be entitled to make an application first to the police and, if refused, to a magistrate, for the preservation of any electronic messaging within a specific period in the possession or control of the complainant whom he alleges consented to what happened. He should then be required to provide to the investigator such key words as he thinks appropriate for a search of the material. Clearly, his name would be foremost, but so would places, events and dates. The investigator would search the material according to those key words and anything relevant would be disclosed in the usual way. Of course, the defendant would be taking the risk of there being adverse messages, which would be admissible against him, but if he believed there was material that would assist him, it would be revealed.

The complainant need not fear disclosure of her whole sexual history. A report published last month by the Ministry of Justice and the Attorney-General found that applications under Section 41 of the Youth Justice and Criminal Evidence Act 1999 were made in only 13% of the 306 rape cases examined, and 92% of those applications were disallowed, so the bar against disclosure of the previous sexual history of the complainant is very high. I hope the Director of Public Prosecutions, Alison Saunders, who is meeting today with interested bodies, will consider a protocol along the lines I am suggesting.

I add my thanks to the noble and learned Lord, Lord Morris of Aberavon, for raising an extremely important and relevant issue.