Sexual offence prosecutions
The Law Commission is tasked with keeping the law under review and in May 2023 they published a consultation paper containing provisional proposals for reforms to the trial of sexual offences, including rape. This could significantly impact future sexual offence prosecutions.
The public consultation period closed in September 2023, and the Law Commission expect to publish the final report with recommendations this summer.
Why was the review carried out?
In its End-to-End Rape Review, the Government looked at the decline in conviction rates in sexual offence prosecutions since 2016. One outcome of that review was the request to the Law Commission to examine the law, guidance, practice, and procedure in sexual offences prosecutions.
The Commission stated:
‘There are many complex reasons for the decline in conviction rates and this is not our focus. Instead, our focus is on how evidence is used in trials involving sexual offences, with three goals in mind: improving the understanding of consent and sexual harm; improving the treatment of complainants; and ensuring that defendants receive a fair trial.’
What are the proposals?
The purpose of the consultation paper was to consult with stakeholders and members of the public on a series of questions and provisional recommendations about changes to sexual offence prosecutions.
The issues that were put forward for further discussion and debate were:
Rape Myths
“Rape myths” are genuine and sincere beliefs that are factually incorrect and derived from stereotypes. One example is that rape will always be reported promptly. The reality is that most rapes are never reported, for many different reasons, and delay is common.
The weight of evidence suggests that, despite myriad strategies to minimise their effects, it appears likely that myths and misconceptions about rape and sexual assault still contaminate aspects of the trial process and certainly there are risks that happens.
The Commission considered reform strategies to minimise the risk that trials will be affected by myths and misconceptions.
Access to complainants’ personal records, including counselling records
Complainants often fear – with good reason – that, even where their records are not relevant, deeply personal material will be revealed and used against them to traumatic effect and to secure an acquittal.
As a result, some complainants will not proceed, or therapy may be compromised or delayed. Of course, such material may well be relevant to the defence case, and a balance needs to be struck.
To address this, the Commission provisionally proposed the introduction of a bespoke regime for access, disclosure and use of complainants’ personal records involving greater judicial oversight.
This would include a judge applying heightened thresholds to determine applications using tests adapted from Canada.
The judge would consider factors such as: whether the record is necessary for the defendant to make a full answer to the prosecution case; the complainant’s right to privacy; and wider societal interests in encouraging the reporting of offences and complainants obtaining treatment.
Sexual behaviour evidence (“SBE”)
It has long been acknowledged that introducing evidence of the complainant’s sexual behaviour at trial risks both subjecting the complainant to unnecessarily intrusive and humiliating questioning and reliance on myths and misconceptions about their credibility, consent and moral worth.
The Commission provisionally proposed replacing the current regime for restricting the use of evidence of and questions about the complainant’s sexual behaviour, which has been criticised as being too complex and both too broad and too restrictive.
They suggested the use of an enhanced relevance threshold to admit this evidence. When applying this threshold, a judge would consider a range of factors including the defendant’s right to a fair trial; respect for the complainant’s private life; the benefits of encouraging reporting of sexual offences; and the risk of introducing or perpetuating rape myths.
Criminal Injuries Compensation claims
When the complainant has applied for compensation, the suggestion sometimes made to the jury is that the complainant’s criminal allegation is false and for the purpose of financial gain.
Because it carries a risk of introducing myths and misconceptions about the prevalence of false complaints, the provisional proposal was that the use of evidence and questioning of complainants regarding claims for compensation from the Criminal Injuries Compensation Authority (“CICA”) should require permission from a judge and should be restricted using a heightened threshold, similar to the one suggested for SBE.
Special measures
We are the only jurisdiction in the UK that routinely requires complainants to give evidence in public.
A right to have the public excluded would allow complainants to give evidence without additional stress and concern about being observed, and possibly identified, by strangers, family and friends of the defendant, or multiple reporters and bloggers.
This is particularly important given the sensitive nature of the evidence they will be giving and the questions they will be asked. The Commission provisionally proposed that sexual offence complainants should be automatically entitled to a range of measures to assist them to give evidence, including giving their evidence without the public present.
To reflect the importance of open justice, the current exemptions would apply which enable a member of the press to attend and report.
Independent legal advice and representation (“ILA” and “ILR”)
Currently, complainants do not have a right to participate in applications relating to their personal records or evidence of their sexual behaviour.
As these applications directly engage complainants’ right to respect for their private life, the Commission suggested that complainants should have access to independent legal advice, assistance, and representation in respect of requests and applications for personal records and in relation to SBE.
They should have a right to participate in personal records and SBE applications, and to have independent legal advice and representation at pre-trial and trial hearings (without the jury present) to decide such applications.
They also provisionally proposed that complainants should have the same limited right of appeal against these decisions that other parties currently have.
Limitations on the conduct of sexual offence trials
The Commission asked for feedback on how better to control barristers’ questioning of complainants which relates to myths and misconceptions, such as requiring advance approval of lines of questioning by a judge; or setting out factors for judges to consider when deciding if a line of questioning is relevant; or judges using a higher threshold than relevance for potentially highly prejudicial evidence.
Jury decision making
The Commission wanted to consider how best to educate and assist jurors in order to minimise the inadvertent influence of myths and misconceptions in deliberations, thereby helping them in performing their function as decisionmakers in sexual offences trials.
They asked for views on how existing judicial directions to address rape myths could be improved by amending them or expanding them, and invited views on whether expert evidence, which is not currently admissible, should be used to explain to jurors in general terms the complex physical and psychological responses to sexual violence that can lead to seemingly counterintuitive behaviours by victims, for example, freezing during the assault, or delayed reporting to the police.
Finally, they also invited views on whether the law should change so researchers can find out more about how juries deliberate.
Specialist courts
The Commission asked whether sexual offences trials should take place in a specialised court or courtroom: where everyone working on the trial has received specialist training in trauma-informed practices; with appropriate technology for effective use of measures to assist with giving evidence; with separate entrances and waiting areas; and with prioritised listing of cases.
The aims would be to improve complainants’ experiences, decrease the risk of traumatisation, and tackle myths and misconceptions.
Our response
This was a very detailed consultation document and no doubt the final report will be lengthy. Many of the proposals raised profound concerns and in our view, risk shifting the balance too far in the other direction.
Many of the matters that were to be addressed in the consultation are already subject to oversight by the trial judge and provisions are in place to restrict the areas of questioning, provide special measures for the complainant to give evidence remotely or from behind screens.
Once the report is published, we will have a better idea of what is now being proposed. Whatever the outcome, sexual offence prosecutions will remain stressful and traumatic for all involved.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, and in particular sexual offence prosecutions, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
Image credit: © Law Commission, Crown Copyright
