News & Insights

BLOG: Perpetuating Myths: The Need for Review in the Right Areas

19/08/2021

Following the release of the Government’s Rape Review, second-six pupil, Anthony James, looks at the Review itself and recent criticisms of the investigation and prosecution of sexual offences.


Much has been made of the Government’s End-to-End Rape Review. It seeks to address many of the underlying issues in the investigation and prosecution of sexual offences, acts as a frank apology to those who have been let down by the system, and further tackles the rape myths that have been so heavily covered by the media.

Some of the key issues identified are the dramatic decrease in the number of prosecutions for rape since 2016 (despite the increase in the reporting of rape); delays in investigations; the increase in personal data being analysed; and the inability of complainants’ being able to access therapy until they have given evidence.

The Government has therefore pledged to do the following:

  • Return the volume of rape cases going to court back to 2016 levels by 2024;
  • Publish scorecards on the system’s performance;
  • Increase support for complainants;
  • Impose a default investigatory model for police, focussing on offender behaviour;
  • Reduce the intrusion into complainants’ person data, particularly their mobile telephones; and
  • Ensure that only pertinent evidence is used in court and complainants’ credibility is not undermined by pre-conceptions or rape myths.

The Review is impressive in its forthright apology to those caught up in the system, particularly complainants. What is less impressive is that the Review does not delve into the underlying issues, particularly cuts to the justice budget. It may be an oft-beaten drum, but the Review should have tackled head on the need for proper investment to ensure investigations are properly resourced and prosecutions are not delayed. Neither does the Review offer any solutions (or attempts at solutions) for the here and now. 

The good intentions of such reviews are often knocked off-course by unhelpful and wildly inaccurate comments made from afar. A perfect example were recent comments made by Harriet Harman MP, who distracted the debate away from effective reform with a withering attack in the House of Commons on evidence of previous sexual history. This was conveniently clipped down into a Twitter soundbite. Ms Harman stated that the system has woefully failed to protect women and girls from the abhorrent crime of rape and asked the justice secretary, Robert Buckland MP, to recognise that:

‘one of the things that deters victims from supporting a prosecution is that when it comes to trial it is they that are put in the dock by their previous sexual history being dragged out and being made the focus of the trial instead of the focus being on the defendant and what he actually did.’

She then went on to ask the Justice Secretary to back new proposals that

‘ensure that her previous sexual history is only ever brought up in court when there has been a previous application to the Judge who has ruled that it is relevant to that particular issue that is on trial’.

This soundbite accompanied a tweet which read that ‘Rape victims are put in the dock with her prev sex history dragged out in court in 1/3 of cases.’

It is not necessary to further debunk that statistic which appeared in the body of the tweet, which has been consistently criticised for several years (here and here) and also conflicts with the MOJ’s own evidence that, as recently as in 2016, applications under section 41 Youth Justice and Criminal Evidence Act 1999 to admit evidence of previous sexual history were made in 13% of cases and granted in 8% of cases sampled.

Her first allegation was that the focus should be on ‘what the defendant actually did’. The absence of the word ‘allegedly’ is striking.

Secondly, Ms Harman wants to limit the use of evidence of previous sexual history to cases where there has been ‘a previous application to the Judge’. Any practitioner who has defended or prosecuted sex cases knows that such evidence can only be adduced by way of application (CrimPR 22.4(1)(b)). Ms Harman misleadingly implies that witnesses are ambushed with such evidence.

The third issue raised by Ms Harman – that the evidence should only be admissible where it is relevant to that particular issue that is on trial – perhaps needs a piece of its own (such as this previous instalment of the Carmelite Briefing). The legislation and recent authorities suggest the reality is perhaps far closer to what Ms Harman wishes to see.

In R v T [2021] EWCA Crim 318, the defence were precluded from questioning a complainant in a rape case regarding her sexuality, which, the defence contended, was relevant to her motive to fabricate false allegations of rape against her ex-husband. The decision is as startling in its certainty as it is in its brevity. The Court held the evidence was inadmissible as it was wholly generalised; had, despite claims by defence counsel to the contrary, as its purpose to impugn credibility; and was entirely speculative.

The thrust of the judgment is perhaps best summed up in paragraph 53 [my emphasis]:

Overall, this is, as we see it, a paradigm case of questions being sought to be asked which would have needlessly humiliated and invaded the privacy of a complainant. Giving evidence at a rape trial is stressful enough. To have had to answer questions in public about her sexuality and her alleged internal conflicts about her sexuality would only have added to the mortification and distress of the complainant (as the defendant must have appreciated). Accordingly, even if, contrary to our own view, section 41 had no application here then, in any event, this line of questioning was properly to be excluded: in effect for the reasons given by the judge herself. It was speculative and irrelevant and of no probative value. Consequently, on ordinary evidential principles it was rightly not put before the jury.

The above analysis of section 41 and previous sexual history evidence shows that this area of procedure should not be a priority for reform from the perspective of the complainant. The attitude of the courts is arguably complainant-focussed and robustly applies the presumption against the admission of such evidence. Yet the Government are now looking into this area further by asking the Law Commission to examine the law and ‘the use of evidence such as the victim’s sexual history’. (Rape Review para 114). All at the expense of meaningful reform where it matters.

There are genuine, deep-seated concerns with the current system. Yet unhelpful observations made by high-profile individuals skew the debate. The issues are numerous, but there needs to be measured review, without any distraction. There is much to be done more widely, but any progress will not be aided by widely-published inaccurate and unsubstantiated comments from the sidelines – adding to the myths and misinformaton already shrouding this area of law.


Anthony James is a working pupil at Carmelite Chambers, currently under the supervision of Alexandra Scott. He has experience in successfully representing defendants accused of sexual offences. He is a Lincoln’s Inn and Advocacy Scholar. Prior to pupillage, he volunteered with various post-conviction charities and worked on an appeal against conviction for rape.

19/08/2021

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