Last week, the House of Commons Justice Committee published the findings of their inquiry into the disclosure of evidence in criminal cases and missed a huge opportunity to tackle the great disadvantage rape and sexual abuse victims face in disclosure – compared to all other victims of crime. The committee rightly criticised the failures to make fair disclosure to the defence in multiple kinds of case, largely blaming lack of leadership. This risks justice and must stop. But let us look at what happens if someone complains of rape.
They are quickly required give a blanket consent in writing that police and CPS can access all personal data from their education records, safeguarding or council social services records, their medical history, psychiatric history, dental records and any notes which may have been made about counselling they have received. This is to see if there is material there which undermines the prosecution case or assists the defence. If anything is found in such a category, it will be disclosed to the defence. The fact that the complainant has signed the consent means that s/he has no right to object.
If the same person makes a complaint of physical assault, without any sexual component to it, even if they are the only witness and the defendant denies it, they will not be asked for any personal documentation. That is the case even though the same duty on police and CPS exists in all criminal cases from fraud to sexual exploitation – they must pursue a ‘reasonable investigation’ and disclose any material found by that investigation which may undermine their case or assist the defence. And that is all they are required to do in every case
The difference is obvious and it is inexplicable save through the prism of understanding the criminal justice system’s historic legacy of not believing women who complain of sexual offences and focussing much effort on seeing if she can be discredited.
It is well documented that myths and stereotypes surrounding rape enter into the courtroom in sex cases – victims are lying if they fail to report immediately, victims “ask for it” by wearing ‘provocative’ clothing, and so on. Work has been done to combat such damaging suggestions in Court – judges now are expected to explain to juries the fallacy of such commonly held beliefs.
However, such myths are still played out in this disclosure process. Information which has not been pointed to by a reasonable investigation but found by trawling through personal records will be disclosed to the defence if it could assist them or undermine the prosecution. This means in context that it contains anything that might suggest that (s)he is not credible. That this happens in sex cases plays on the ‘twin myths’ that women have a propensity to engage in sexual activity, and that they are not credible witnesses. It is a trick to deflect a jury’s attention from central issues in a case.
In a recent case in Newcastle-upon-Tyne, a victim of sexual assault, now in her 20s, was painted as a lifelong liar in court, based on a past school record that she had forged her mother’s signature when she was in her early teens, to get a day out of school.
Being confronted by such material can have a devastating effect emotionally on someone who has discussed private affairs of no relevance to the case with people they expected to respect their confidence. They can lose faith in health and social services whose help they probably need if they are victims. It can obviously dissuade them from pursuing a path through the criminal justice system. Crucially, this practice is also a potential breach of the human right to a private and family life (Article 8 ECHR), as set out by a judge in the case (R v Stafford Combined Court ).
Some personal records may need to be obtained and shared with the defence in order to test the truth of the complainant’s case. However, the test is clear – only those which are relevant to the facts and obtained through reasonable lines of inquiry. Victims must also be informed and involved in the process, which should be proportionate. Current practice in sex cases goes much further than this.
Though a defendant has an absolute right to a fair trial in Article 6 a complainant’s right are also important. Article 6 does not simply trump the complainants article 8 rights if material is wholly irrelevant. But this balance isn’t even considered at present. If complainants don’t sign up for full disclosure CPS often simply say – raped or not, we are not taking this case any further.
The Justice Committee heard evidence of this and its report acknowledges that complainants are sometimes subject to excessive scrutiny. But they make no recommendations about it
Ministers now need to be bold and ensure that disclosure practices within the legal system change and that victims are given a voice.