Rape Review: An extraordinary mea culpa can’t disguise serious compromise

There is no clearer example of the deficiencies in our criminal justice system than in its handling of rape.

Victims of rape and serious sexual offences have been comprehensively failed by the criminal justice system over the past five years. We have witnessed a seismic collapse in rape charging and prosecutions.

There is no escaping the numbers. About 56,000 rapes were recorded in 2020, and just 1,929 offences were charged.  Just 1.6% of rapes recorded in 2020 have so far resulted in a charge or summons. This is shameful.

Last year, I warned that we were witnessing the effective decriminalisation of rape. Nothing in the past year has swayed me from that perspective. The uncomfortable truth is that if you are raped in Britain today, your chances of seeing justice are slim.

Make no mistake, this is of overwhelming public importance. Rape is often a serial offence and rapists carry on until they are stopped. This collapse in charging comes with the risk that we are letting some guilty people escape justice, leaving them free to go on to attack more victims.

So, it is clear we are in a crisis and this crisis has been allowed to fester for at least the past four years.

The government’s end-to-end rape review, published in June 2021, was commissioned more than two years previously to answer four questions: why complainants withdraw from the criminal justice process, why referral rates from police vary wildly from force to force, why Crown Prosecution Service (CPS) prosecutions have collapsed, and what the impact of the court process is on complainants. In its final form, it fails to answer any of them – and it is perfectly clear why not.

The review has been carried out by the very government departments and agencies responsible for the poor state of rape in the first place. Far better and more focussed on the issues – and more radical in their recommendations – are the two inquiries into rape in the Northern Irish and Scottish justice systems, each carried out by an independent and very senior criminal judge. The English & Welsh review’s action plan is riddled with compromise solutions, necessitated by the tendency of the responsible agencies to blame each other. Consequently, the proposals are underwhelming, both in their scope and resourcing, and represent some real missed opportunities to bring speedy and effective change.

That being said, the review and its action plan represent the government’s proposed route out of the crisis. While it undoubtedly has serious limitations, it is and will remain the only show in town and some of its recommendations do hold promise.

What is encouraging is the presence in the review of a powerful apology from the government, with ministers rightly voicing their shame at an abysmal record. They state a clear direction of intent to reverse this downward trend. This is both welcome and important.

Probably the best proposal is to further pilot a policing programme, first run in Avon and Somerset police as ‘Project Bluestone’. It is founded upon five pillars, namely: suspect-focussed investigations; disruption of repeat offenders; victim engagement, training and learning for police; and improving the keeping and use of criminal justice data. It remains remarkable to me that police need to be instructed to investigate the suspect, not the victim. Indeed, academics who worked with the force speak of what was previously a ‘complainant credibility unit’ rather than a rape investigations department. This will be true of forces up and down the country.

The changes they have proposed and the commitment of force leadership has shown real potential to be transformative and to radically improve victims’ experiences. The same academics will scrutinise its development as it goes along, and it will now be taken up in four other forces. This is all to be welcomed. My concern, however, is that there is only funding for one year’s rollout and to just a further four police forces. The Lord Chancellor assures me that all criminal justice ministers will be pressing for it to be fully funded in the Spending Review. I will hold him to that.

Ministers’ plan to have performance ‘scorecards’ to measure the performance of all the agencies across the whole justice system and to publish the results on a six-monthly basis. This could drive much needed changes, provided that the ‘scorecards’ are carefully designed to avoid unintended consequences and shaped in a way to ensure that justice is protected.

The scorecard system aims to return the volume of cases prosecuted to 2016/17 levels, which is significant as prosecutions plummeted after this point. Earlier this year, the End Violence against Women Coalition judicially reviewed the CPS over this. The court accepted that, in order to improve conviction rates, CPS head office directed its rape lawyers to remove 350 ‘weaker’ cases from the criminal justice system in that year by not prosecuting them. The court did not find that change to be unlawful. However, more than 850 cases were in fact removed nationwide and a further 1,000 removed the next year. Since then decisions to charge have been at what looks to be an all-time low, falling from a usual 3,500 or so each year over the preceding decade to about 1,800 now.

Cases made public by EVAW in the judicial review showed that decisions not to charge, made in accordance with the head office diktat, are riddled with rape myths and stereotypes, echoing the approach of the ‘ complainant credibility unit’ found in Avon and Somerset police. It is just as well that ministers have apologised and promised a focus instead on the defendants where it should always have been.

I am pleased, too, that the Lord Chancellor has committed to the involvement of the Victims’ Commissioner and Domestic Abuse Commissioner on an external scrutiny panel, for this ‘scorecard’ process, alongside representatives from the criminal justice and sexual assault sectors. But what will the consequences for agencies be if they fail to make the promised progress – if any at all? The CPS has a dismal record in rape – if they don’t improve, what next?

The government has a mountain to climb if it is to restore victims’ confidence in the justice system. These measures are a start. But it is disheartening that truly transformative policies, such as the pre-recording of evidence of intimidated witnesses (Section 28), is to be put off by further piloting or general delay.

At a time when there is an ever-growing court backlog, especially in rape cases, the government knows that Section 28 needs to be rolled out as soon as possible. Pre-recording testimony and cross examination whilst the recollection is fresh- and releasing the complainant early from any further involvement in the trial – ends the long, anxious wait they currently experience as their case reaches court. Many victims now simply drop out of the justice system to get over what has happened to them and to try to resume their normal lives, abandoning hope of justice on the way. This is simply not acceptable nor sustainable.

Similarly, when concerns around digital disclosure deter so many victims from engaging with the criminal justice system, it is bizarre to see the Home Office legislating in the Police, Crime, Sentencing and Courts Bill to effectively legitimise over-intrusive data demands. The police, who need a new power around mobile phones, have agreed that a version of the same clauses amended by me to include protections for privacy are absolutely fit and acceptable to them. So, what is government playing at, determining that investigations will focus on defendants all the while empowering digital investigation of the complainant?

Which underlines also why it is so disappointing that there is no plan for independent legal advice to tackle these well-documented instances of excessive and undue data requests by police and prosecutors, despite an excellent pilot scheme in Northumbria.

For three years independent solicitors gave legal advice and support to rape complainants, in challenging excessive requests for digital download, and demands for personal material in third parties’ hands, such as medical records, school reports and counselling notes. The pilot’s evaluation shows almost all those who took part in the scheme to be overwhelmingly positive. Advocates had to challenge data requests in 22/47 (47%) cases but on many occasions, police agreed that a narrower range of material was sufficient and became firm supporters of these interventions, which saved them a lot of time. The costs involved in a national rollout of this scheme (estimated at £3.9m) are a small price to pay to safeguard human rights. We are promised a consultation about this, but that is likely to mean another year of inaction, when the need is pressing.

Which is to largely sum up much of the rape review as a whole: a clear desire from government and ministers to fix the justice system for rape survivors, let down by a distinct and frustrating lack of urgency and ambition in how to go about this. However, despite all its limitations, I truly hope this review will help drive us forwards.

The rape review may be finished on paper, but it is only just starting in delivery. I will be pushing ministers all the way to deliver justice for victims of rape and sexual assault, and to live up to their apologetic words.

This article was first featured in Dame Vera Baird’s 2020/21 Annual Report, published on 21 July 2021.