Michael Ellis
Main Page: Michael Ellis (Conservative - Northampton North)Department Debates - View all Michael Ellis's debates with the Ministry of Justice
(14 years, 5 months ago)
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Maria Eagle
I agree with my hon. Friend: equating the position of the complainant with that of the defendant is erroneous.
The Minister tried to clarify the Government’s policy, but the coalition Government’s programme set out in nine words, with seemingly admirable succinctness and clarity, that
“we will extend anonymity in rape cases to defendants”.
However, since its publication, all kinds of outrage, consternation and surprise have been caused, for two reasons. First, many people, including me, believe that the policy will not help to bring rapists to justice, but will do the opposite. I do not think anyone in the House would disagree about the need to bring more rapists to justice.
Michael Ellis (Northampton North) (Con)
Is the hon. Lady not also conscious of the need to prevent false accusations against innocent people and the connected wrongs?
Maria Eagle
Indeed, I assume that must motivate the Government’s policy, but the Minister did not set out in great detail in his speech why the coalition had such a focus.
This country has a system of open justice, which is extremely valuable and an important part of our justice system. It should be changed only with great thought and for very good reasons. As anyone who has practised the law would be keen to set out, one can be accused of many crimes that can have an extremely deleterious effect on one’s reputation, on one’s standing in society, and on one’s capacity to hold down a job, hold a family together and live a normal life, whether or not one is found guilty. Rape is certainly among such crimes, but so are murder, downloading child pornography, stealing when one is in a position of trust and many others. What surprises me about the proposal is that rape, rather than all sexual offences, is singled out for such treatment.
Maria Eagle
No, I want to make some progress.
The coalition agreement set out the matter clearly. The proposal will not help to bring rapists to justice, and the apparently clear and succinct policy was in neither of the coalition parties’ manifestos. Therefore, it went from not even being important enough to mention when seeking votes from the public and a mandate from the electorate, to being such a major priority for the Government that it merited a specific mention in the coalition programme for government. Why was that? Nobody has told us. I am extremely grateful that we have this debate, which enables us to explore the matter in more detail. Where did the policy come from? Who suggested it? Who thought it was a good, or even workable, idea? Who, if anyone, was consulted about it? How did it go from being unmentioned at the election, by either the Conservative party or the Liberal Democrats, to being a top priority over the weekend of the coalition negotiations?
The Minister tried to explain the proposal in a little more detail, but I fear that he has only added to the enormous confusion. Many Opposition Members have raised the matter with a variety of Ministers ever since the coalition programme for government was published. The acting leader of the Labour party, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), raised it at the first Prime Minister’s Question Time of this Parliament. To say that the Government have responded with confusion and inconsistency is an understatement. It is not solely that Ministers from different parties say different things, but that the inconsistency and confusion, hardly helped by the Minister’s statement today, are much more widespread. To an interested observed such as me, it looks like the Government do not have a clue what their policy is, because they have not taken any steps to work it out yet.
Maria Eagle
I will give way to the Under-Secretary of State in a moment.
To reach a conclusion without any consultation—to decide the policy first and consult afterwards, when the effectiveness of the policy and the likelihood of its success are such an issue—is not a sensible way of proceeding.
I shall leave aside the difficult task of pinpointing precisely what the policy is. The position has changed today, but it is still not absolutely clear. What is absolutely clear is that no one was consulted. There seem to be no ideas and no evidence about the impact of what I believe to be a retrograde and deeply troubling policy. The Ministry of Justice has confirmed in written answers that no written evidence was considered before the policy was presented. Ministers have met no victims’ organisations, rape crisis organisations or members of the judiciary.
Given that the Under-Secretary said today that there would be no consultation, it is clear that Ministers do not intend to meet and properly consider the views of those who know most about the issue and have most to say about it. That is a disgrace. Only now, after the policy has been decided, are Ministers analysing options and implications and asking for evidence, and they keep changing their minds about exactly what the policy is. Only now, after the policy has been decided, are they asking MOJ statisticians to pull together the existing evidence base. Should not the Under-Secretary have done all that before? Of course he should.
I hope that I can help a little. I believe, and the Opposition believe, that it is not in the public interest to abandon the principle of open justice when it comes to such serious offences as rape. Singling out rape as an offence for which, uniquely, the defendant is granted a right to anonymity clearly suggests that false accusations are widespread, and that victims should be disbelieved by the criminal justice system, by investigators and by juries. That will deter people from reporting rape, which the Under-Secretary says he does not wish to do.
Maria Eagle
Not at this point.
In fact, people accused of sexual crimes should not be treated any differently from other defendants. If the Under-Secretary singles out rape from all other sexual offences, let alone offences of violence, he will send a clear signal that there is a reason for his action. That will impinge on victims’ capacity to come forward and the likelihood that they will do so, which will in turn impinge on the conviction rate.
The argument that there should be anonymity for defendants because there is anonymity for complainants is a false one. There is a public interest in bringing rapists to justice. A victim is a witness to a crime, not simply another party to a family law case or a civil case in which some kind of equivalence might be seen between parties. Rape is often a serial crime, and it is often only after many crimes that a perpetrator is brought to court. Previous victims often come forward at that point. That can be essential to the securing of a conviction, but the Under-Secretary’s policy is likely to make it less efficacious.
Many organisations have contacted Members about the proposed policy, including Rights of Women. It has endorsed a statement signed by 50 leading women’s and human rights organisations, including many rape crisis centres and organisations that deal with victims of rape. It believes that giving suspects anonymity, whether until charge or until conviction, will hamper police investigations, enable serial offenders to evade detection—thus placing more women at risk of sexual violence—reinforce erroneous and harmful myths about the prevalence of false reports of rape, thereby deterring women from reporting it, and send a clear message to women that they are not to be believed. It calls on the Government to drop their proposals on anonymity, and instead to focus their energy where it is needed by concentrating on securing sustainable services for survivors of sexual violence and improving the investigation and prosecution of rape.
The ACPO lead on rape, Chief Constable Dave Whatton—who knows a thing or two about the subject—has said
“The proposal to extend anonymity in rape cases beyond victims would require primary legislation. ACPO has yet to see the detail of the proposals but would welcome being part of the formal consultation process.”
Well, apparently there is not going to be a formal consultation process, although the Under-Secretary did say that he would talk to ACPO, which is at least something.
Chief Constable Whatton also said:
“The welfare of rape victims needs to remain a priority. Our main concern would be in regard to the impact any changes on anonymity would have on victims, in particular on their confidence to come forward and report rape.”
It seems to me that the entire focus of the Under-Secretary and the Government on the issue of anonymity for defendants in rape cases rests on the level of false reports, although the Under-Secretary said that it did not. I think that one of the strongest arguments advanced by Members on the Government Benches who favour the proposal is the idea that there is a lot of false reporting. The last Home Office research on that was in 2005 and it suggested that the true figure was closer to 3% than the 8% to 10% that has been stated. However, false reporting is obviously a concern for those who are falsely accused, and it must be tackled. There is no disagreement between us on that. The question is whether the best way to tackle this is to allow anonymity for anybody who might be accused of any kind of offence, including all the people who are guilty. We argue that that would lead to less reporting and less ability to convict the guilty.
Maria Eagle
That is right; my hon. Friend makes an extremely important point. There are very few examples of malicious reporting. When the public talk about false reporting, they are often really referring to malicious reporting, which we all agree is a perversion of the course of justice, and can be, and is, charged as such where it is discovered.
We must make it clear that in the current context anonymity in effect means reporting restrictions. What we are talking about, therefore, is not an objective descent of anonymity on to a named individual, but inhibiting our free press from reporting matters of public interest. I had a word with the Newspaper Society about what it thinks about that.
Michael Ellis
The hon. Lady is very generous. There are already episodes in our criminal justice system where names are withheld. Her former Government enacted terrorist offences legislation that allowed the names of defendants to be withheld, and for “A”, “B” or “C”, for instance, to be used instead. There are also thousands of youth trials every year in which the names of young people are withheld, and that has been the case for decades. This step would not be unique, therefore.
Maria Eagle
We do not, however, say in respect of any crime that there should be a generalised anonymity for defendants. Particularly for the crime under discussion, that is what would lead to the deleterious side effects I have been outlining. Having looked into this matter, I do not think the downsides of granting anonymity just in respect of rape could possibly justify the impact on the very few instances of malicious reporting that it seems there are—we do not know the precise number.
The Newspaper Society says that the law should remain unchanged; the victims of alleged sexual offences are protected against identification during their lifetimes, but even those restrictions can be waived or lifted by the court in specific circumstances. It thinks the Government’s proposals are potentially far-reaching, and that that is fuelled by an imprecision in how they are set out. It thinks they could prevent the release, exchange, dissemination and publication of material, and that they could prevent investigation and reporting, including in respect of accuracy and legal checks, despite the real public interest in that being done. It also thinks they could fuel rumour and malicious gossip that is not just confined to the actual subject of the allegations, rather than prevent or curb that. It said, too, that the written statement on teacher anonymity was very imprecise, and that it is against it because of its imprecision and the potential impact on the capacity of a free press to do its job.
Michael Ellis (Northampton North) (Con)
Several Members have asked the rhetorical question, “Why treat rape differently?” The reality is—I say this having had 16 years of experience at the criminal Bar in England and Wales—that it would not be treated differently by the law in several respects. The identity of defendants is withheld every day in hundreds of cases in our criminal justice system in cases in youth courts, or those with persons under the age of 16 who are involved in proceedings. That has been so since the Children and Young Persons Act 1933, so there are plenty of such examples every day. I accept that that relates to young people, but the principle exists.
That principle was reinforced by the previous Labour Government and applied to adults in relation to certain terrorist offences. Thanks to Labour legislation, the anonymity of defendants was applied in those cases, which is why one reads in the media about the cases of N or A. When Labour Members refer to the uniqueness of this proposition, I submit that they are wrong for those reasons.
Rape is also different from other offences. Often it is one person’s word against that of another, particularly as regards allegations when consent is an issue. Of course, in cases when consent is not an issue, the same principle does not apply. A situation in which the evidence is the word of one person against that of another—I do not exclude males here, because males can be victims of rape, as we have discussed—can never be the case in allegations of sexual offences against children. Consent will never be the issue there. When consent is an issue among adults in a rape case, there is often no supporting evidence for a jury to get a grip of that can corroborate a complainant’s account. That makes rape different from many other offences that are prosecuted in our courts and it might partly account for the exceptionally low conviction rate for rape—assuming that one accepts there is an unusually low conviction rate, because that is not universally accepted within the profession.
In every case, jurors have to be sure of a defendant’s guilt beyond reasonable doubt before they convict. When it is one person’s word against another’s, my experience, and no doubt that of others who have practised in the criminal courts, is that juries may be unconvinced that they can be sure enough to convict someone of such a serious offence. In almost every other case nowadays, before a court prosecution is launched, the Crown Prosecution Service will require corroborative inculpatory evidence against the defendant, such as forensic, CCTV or eye-witness evidence. The prosecution would be very unlikely to proceed in cases of murder, grievous bodily harm or similar offences without some evidence other than one person saying, “This is what happened.”
No doubt, hon. Members will know that in every case the CPS has to satisfy itself regarding two criteria—first, that there is a realistic prospect of conviction and secondly, that it is in the public interest to proceed. To satisfy the first test, supporting evidence would invariably be needed. It has been my experience, and that of others from the Bar who have spoken in the debate, that that test seems not to have been applied by prosecutors in rape cases. It seems that prosecutors are much more robust about telling the police that they are disinclined to prosecute grievous bodily harm or actual bodily harm cases to court because there is not enough evidence, whereas that decision seems to be left more to jurors in rape cases. I urge that prosecutors should think carefully about applying a proper test to rape, because nothing in law separates rape cases from the requirement that there should be a realistic prospect of conviction. Rape has those unique characteristics, so it stands apart from most other offences in the criminal lexicon.
A second reason that I offer for the low conviction rate is the fact that the law makes no differentiation between a stranger rape, as they are sometimes called, and another type of rape in which the accused is known to the victim. I am not calling for the law to make that differentiation, but jurors invariably do make a distinction. Many members of the Bar have found that jurors are reluctant to convict of rape when there have been historical sexual relations of a consensual sort many times, because they know that the sentence will be particularly severe.
Labour Members often ask what makes rape different, but their Government made it different legally. One more example of that is that the Youth Justice and Criminal Evidence Act 1999 recognised sexual offences as different, and section 41 placed restrictions on the cross-examination of rape complainants, creating a presumption against asking questions about previous sexual history. I do not argue that that is inappropriate, but it does restrict barristers from asking questions in court in a way that simply does not apply to other types of offence.
Glenda Jackson
Why does the hon. Gentleman think that the previous Government changed the law in that way? Surely it was because of the kind of severe cross-examination of rape victims that had taken place previously in which victims were reduced to tears in the witness box, which had clear implications. One point that we have been arguing all afternoon is that that reduced the likelihood of a woman who had experienced rape from coming forward and making such allegations.
Michael Ellis
Nothing I say is designed to make it more difficult for women to make a complaint of rape. I accept and understand from my professional knowledge that it is an extremely difficult thing for women and men to do. However, my example showed how that offence is treated differently by the law. When Opposition Members ask why I say that such cases are different from all others, I fear that their argument is weakened by the provisions in their 1999 Act.
We are not talking about false allegations of rape as such, but it is right to bear it in mind that we have a system that we must cherish: a person is innocent until proven guilty. I accept that there must be no barrier to people making a complaint, because it is already extremely difficult for them to do so; but Her Majesty’s Government are not trying to do that in this proposal. Rape is uniquely stigmatising, so much so that if one goes to prison, as I have done—obviously to see clients—one can see what happens there. Prisoners charged with rape—never mind convicted—are treated differently from other prisoners. The sad reality is that a person charged or convicted of murder or a serious offence of violence can actually be respected in the prisoner context, but those accused of rape have to be segregated. There is a unique stigma.
Rape is uniquely stigmatising and it is already treated differently by the law. I give an example, from my legal knowledge. A 17-year-old military recruit and a younger girl, aged 16, made contact via the internet. He travelled to meet her and they had sexual relations. He drove her home, by which time her father was out looking for her; indeed, she saw him in the car. At her doorstep, the mother asked, “What has he made you do?” The girl had some psychological problems and it was clear from computer conversations with friends that she was very frightened, but it was also apparent that the case was prosecuted wholly partially, with officers repeatedly reassuring her at interview that she had done the right thing. Of course, they wanted to do the right thing for her, but one has to ask whether it was doing the right thing by a complainant to reassure her repeatedly and not put her, or him, to the test on the quality of their evidence. It will be explored in court proceedings, which puts the complainant under even more pressure.
In the case I am describing, the young man was remanded, released on bail and remanded again. The case came before a Crown Court judge and when counsel—not me—asked the first question, “He didn’t rape you, did he?”, the answer was “No”, and the case was dismissed. I regret to inform Members that such cases happen on a regular basis.
Caroline Flint
The hon. Gentleman suggests that such cases happen on a regular basis, but there is no evidence for that—it is anecdotal. One of the things Baroness Stern was asking for was better evidence of false allegation in all crimes, including rape. We need to get the data and evidence right, because such phrases do not help the debate at all.
Michael Ellis
In the absence of statistics, one can only go by one’s anecdotal experience, and it is reasonable for barristers who have worked in the Crown Court daily for many years to draw on that experience. I differ from what the hon. Member for Llanelli (Nia Griffith) said about the number of cases prosecuted as perversions of the course of justice or malicious reporting of rape. That number will be very much lower than the average. That is because it is very difficult to prove a negative, and one would normally have to ascertain that the complaint was made in wholly and probably dishonest circumstances—for example, it might later transpire that the complainant and the victim were in two different locations. But it is illogical for the hon. Lady to draw the conclusion that because there are X prosecutions for perverting the course of justice, there are not that many false accusations. The two are totally different.
Nia Griffith
Does the hon. Gentleman accept that I was quoting the professionals who have been involved for many, many years in such cases? I was not quoting the number of actual cases that might have been brought. I was quoting what the professionals had said, and they said that the number of false accusations being made anywhere in the process was extremely low.
Michael Ellis
Nothing that I have said is designed to protect the guilty. I accept what the hon. Lady says. As far as I am concerned—I emphasise this—anyone convicted of this sort of crime deserves the full wrath of the law and society. I am motivated here—I am sure that all Members would sympathise with this—by the protection of the innocent, and the ancient principle that all in this country are innocent unless or until they are proven guilty is a principle that we should never derogate.