An unusual case was dealt with at the Court of Appeal recently concerning offences of rape, and in particular the question of consent.
The victim, referred to as X, was the partner of Smith, who was the leader of a large-scale drugs conspiracy. Smith enjoyed watching X have sex with his friends; he was much older than X. She apparently consented to the sex with Ivor, George, Thomas and Mike, but the issue for the jury was whether that consent was genuine, if it was not genuine, whether the appellants reasonably believed that it was.
Sexual Offences Act 2003
The Sexual Offences Act 2003 sets out the issue of consent and says that the offence is committed if the complainant does not consent or if the perpetrator does not reasonably believe that the complainant consents. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice.
The appellants were found guilty of rape, so the jury must have been sure that the apparent consent was not genuine and also satisfied that the appellants did not have a reasonable belief that X was consenting. They were sentenced on the basis that they believed that she was consenting but that the belief was not reasonable. This led to sentences outside of the guidelines that, without further explanation, could look lenient for rape.
They appealed on the ground the judge should have found that there was no case to answer as there was no evidence that each did not have a reasonable belief that she was consenting.
The Prosecution case
The prosecution case was that each appellant knew Smith, and each was aware of his methods of getting his way in the drugs world. They knew there was a disparity of power in Smith’s relationship with X, and they were aware she consumed alcohol and drugs before having sex with each of them. None of them made any inquiry with X; one admitted overhearing a conversation between Smith and X where she said she wasn’t really consenting.
The appellants argued at trial and on appeal that taking the evidence at its highest, there was nothing capable of proving the absence of a reasonable belief in consent. The law does not require a defendant to inquire about consent even when the broad circumstances might be thought to put him on inquiry. The Court of Appeal held that the judge was right to leave the issue to the jury. The evidence that went to reasonable belief was made up of a mosaic of individual pieces from a wide range of witnesses. It required the jury to evaluate those pieces in the context of a broad picture to determine whether the prosecution had proved the absence of reasonable belief. The evidence was there for the jury to come to the conclusion that it did.
Consent is not simply Yes or No
This case amply demonstrates that consent is not a simple issue of yes or no. Back in 2018, a survey found that many people were still unclear as to what rape was. A third of people thought it wasn’t usually rape if a woman was pressured into having sex, but there was no physical violence. A third of men thought that if a woman flirted on a date, it wouldn’t generally count as rape even if she didn’t explicitly consent to sex. 21% of women thought the same.
This is a complicated area of law; if you find yourself accused of a sexual offence, you need expert advice at an early stage. Please do not fall into the trap of thinking that you do not need a solicitor if you have done nothing wrong, or that if you do have one it will make you look guilty. Everyone has the right to free and independent advice at the police station; it is a right that you should use.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.[Image credit: Informed Consent” by Kevin Krejci is licensed with CC BY 2.0 ] Read More
The Government’s End to End Review of the Criminal Justice System Response began in 2019. The purpose was to look at evidence across the system, from reporting rape to the police through to court outcomes, to understand what was happening in cases of adult rape.
Although the number of reported cases has not really changed, the number of prosecuted cases sharply declined in 2016/2017. The research found that the reasons for the decline are complex and wide-ranging. They included the increase in personal data being requested, delays in investigations, difficult relationships between different parts of the system, a lack of specialist resources and inconsistent victim support.
Why is a review necessary?
The volume of cases that police refer to the Crown Prosecution Service (CPS), those charged and going to court have declined. To reverse the trend, the government says its initial ambition is to:
- Return volumes back to pre-2016 levels.
- Publish scorecards to show how the system is performing.
- Make sure victims have access to quality support appropriate to their needs.
- Ensure consistent access across the UK to the proper therapeutic and clinical support.
- Ensure access to legal advice and support to understand and challenge disclosure decisions.
- Hold criminal justice agencies to account if they fail to provide victims with these rights.
- Victims will not be left without a phone for more than 24 hours.
- Any digital material from victims is strictly limited to what is necessary and proportionate.
- Ensure effective communication with victims throughout.
- CPS to improve the way they deal with rape cases with a better process for early investigatory advice and updated legal guidance addressing rape myths and stereotypes.
- The police and CPS should establish a better way of joint working.
- Improve the experience at court for victims.
- Ensure a victim’s credibility is not undermined by pre-conceptions or rape myths.
A particular step the government say will be taken is to change the way the crime is investigated. The Review found that victims often felt under investigation themselves and that they did not feel believed. It was said that there are patterns of behaviour that are significant features of rape and that proper emphasis needs to be placed on a suspect’s offending history. Decisions cannot be made purely on a victim’s credibility; they require a well-rounded objective assessment of the evidence.
The police are to move to a default investigatory model, one that recognises the prevalence of serial offending in rape offences. This would involve an early robust assessment of suspect offending patterns and behaviour to ensure proper emphasis is placed on it in the investigation.
What are they hoping to achieve?
This action plan is designed to increase the volume of cases progressing through the system. In addition, the government wishes to achieve the following outcomes:
- An increase in victim engagement at every stage of the process.
- Complex cases should not be deprioritised to get more cases through the system.
- For high quality cases to be referred by the police to the CPS.
- An increase in public confidence in the decisions made by the CPS.
- An increase in early guilty pleas – by improving the quality of investigations and increase in guilty pleas is anticipated.
- Improved timeliness of cases at each stage.
- Limiting the requests for digital information from victims only to what is necessary and proportionate.
- The defendant’s right to a fair trial is maintained through robust and appropriate disclosure.
A timeframe has also been published setting out the progress expected at 6, 12 and 24-month intervals. To ensure accountability, the government says that it will publish an update detailing the progress made every six months. A “performance scorecard” will monitor progress against key metrics including timeliness, quality and victim engagement in each part of the system and the plan implementation.
Whilst the government aims appear focused on the victim’s rights, all agencies have to ensure that there is a fair trial for the defendant. This is where we come in; we will protect and advance your rights at every stage of the investigation and proceedings, ensuring that you have the proper advice and information throughout.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.[Image credit: “Rape” by Valeri Pizhanski is licensed under CC BY-SA 2.0] Read More