In her 2021/22 Annual Report, Dame Vera Baird reflects on the investigation and prosecution of rape in England and Wales.
This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.
In my first annual report in 2020, I made headlines by saying that we were witnessing the effective decriminalisation of rape. During my subsequent years in post as Victims’ Commissioner, little has swayed me from that perspective. Despite a long-delayed end-to-end rape review, various governmental action plans and plenty of tinkering round the edges, you can’t escape the numbers; they continue to speak for themselves.
Rape prosecutions: a lottery
For victims, reporting rape is effectively a lottery and the odds are rarely in your favour. In the year to December 2021, there were 67,125 rape offences recorded – an all-time high. Yet the number of completed rape prosecutions plummeted from 5,190 in 2016-17 to just 2,409 in 2020-21. The numbers of convictions almost halved (2,689 in 2016/17 compared to 1,409 in 2020/21). Only 5% of rapes that were given an outcome by the police in the year ending December 2021 resulted in a charge.
If you defy the odds and secure a charge, you will likely have to wait the best part of three years from reporting before you will get to trial. Along the way, your trial date will almost certainly be fixed, then cancelled and then relisted months into the future. The joint thematic inspection on rape found that on more than one occasion, this happened just hours before victims were expected in court. You will have lost sleep dreading re-visiting what happened at the trial only to have to get over it and draw your resolve together again. You will be tested at every juncture.
And should you persevere to the trial – perhaps more than a year from when the defendant was charged – you are likely to find giving evidence highly re-traumatising. Some victims tell me they find their experience in court worse than the offence itself.
Despite warm words from the government and from our criminal justice agencies, this is still often the stark reality for rape victims.
Balancing the right to privacy in rape investigations with the right to a fair trial
In this Annual Report I can reflect on some of the changes that have come about through the work of my office. In at least one particular way, we have been able to make the criminal justice system a slightly less hostile place for victims of rape.
Campaigners have coined the phrase ‘digital strip-search’ to describe the routine requests for a rape complainant to hand over their mobile phone almost immediately upon making a complaint. Historically, the phone’s contents have been comprehensively downloaded and fully scrutinised. Independent Sexual Violence Advisers are clear that a failure to hand over the phone frequently results in the investigation almost immediately being closed. Victims are effectively being forced to choose between justice and their right to a private life.
In a joint HMICFRS/HMCPSI report, inspectors cite examples of senior officers and CPS prosecutors asking for full downloads of victims’ phones when it was “neither reasonable nor proportionate”. An unpublished inquiry by CPS themselves reported that 60% of demands for download made were ‘irrational and over-intrusive’. And such demands fall nearly exclusively on the victim. The victim’s credibility is put under the microscope by the police and CPS in a way that would not happen with any other kind of complainant. This intrusion is in contravention of most established legal frameworks, which require such requests to be ‘reasonable and proportionate’ in pursuit of content which forms part of a reasonable line of enquiry.
With the Police Crime Sentencing and Courts Bill, the government were minded to legislate more generally around seeking evidence held on personal electronic devices. But in doing so an unintended consequence risked effectively legitimising these excessive intrusions into rape victims’ private lives. As a result, the proposed clauses in this Bill would run in entirely the opposite direction to the promises made by government in its end-to-end rape review just months prior.
I worked to persuade government to embed essential protections for victims into this legislative provision. I brought together leading voices in this area, including key victims’ groups, the National Police Chiefs’ Council lead for disclosure, ACC Tim De Meyer, and the Information Commissioner’s office. This group brought their valuable expertise and we worked in partnership to shape my proposals.
Though initially resistant, the government reflected on their position and began to agree with my line of thinking. They took our clauses on, built on them and improved our work. For instance they specifically added protections to specify that a complainant cannot be coerced into handing over their private digital information, by threatening that their investigation will be closed should they fail to comply.
This should be the start of a significant step forward for victims. Fear of handing over personal information acts as a powerful barrier to reporting and seeking justice, with large numbers of victims withdrawing from the justice system once they have reported for just this reason. Excessive requests for victims’ digital material should lessen. But this is only half the story.
Rape complainants still face similar intrusions into their personal lives in the form of demands for ‘third-party’ materials. This is a complainant’s private data which is in the hands of third parties, such as medical, therapeutic, education and social services records.
These records are frequently sought as a matter of course in what is yet another attempt to comb through everything that is recorded about them to see if there is any imperfection in their earlier lives which may call into question their credibility. The pursuit of this material is nothing other than a credibility test of the victim. It is hard to see the logic of legislating to stop the demands on complainants for their personal digital data whilst leaving this personal material in the hands of third parties open to random scrutiny by the police and CPS. It is obvious that there is a cultural issue in those criminal justice agencies and that will not be changed by directing that they must not make over intrusive demands for digital data whilst continuing to allow it with third-party material. In particular, there is no logic in banning the threat to stop the prosecution, if the complainant does not consent to handing over digital material, if that same threat can still be used to obtain third-party material. The only way to change culture, practice and to protect rape victims is to legislate to control requests of both kinds of material: digital phone records and third-party data. The government committed in the House of Lords to consider legislation to protect against third party material demands. I urge government to use the upcoming Victims’ Bill to legislate so that criminal justice agencies are left in no doubt that this practice must stop. Additionally, in my response to the Victims’ Bill consultation, I recommended that there should be a statutory system of protective privilege for the confidentiality of sexual assault victims’ therapy records in any criminal proceedings. This, too, must now be delivered.
Independent legal advice
We also need to see the government commit to free, independent legal advice for rape complainants. This must be provided by a qualified lawyer who can counsel on matters affecting the victim’s human rights, such as disclosure and their past sexual history being brought as evidence at trial.
To date, the government have only committed to a limited consultation as part of last year’s end-to-end rape review. Almost 12 months since its publication, I’m yet to see any action in this area. This is despite the successful three year pilot of exactly this kind of independent legal advice which I established when I was the Police and Crime Commissioner for Northumbria. The pilot was evaluated with 23 of the 25 professionals who had been involved in it believing and that it should be rolled out nationally. It brought unmistakable positives for victims and for the police who were able to resist Crown Prosecution Service demands for time-consuming searches of private material by narrowing down what should be pursued in agreement with the opinion of a qualified solicitor. It undoubtedly improved justice outcomes and I have long argued for its national rollout. So, why the delay?
Independent legal advice helps to protect victims’ human rights and enhance their overall confidence in and continued engagement with proceedings. As part of my evidence to the Home Affairs Select Committee inquiry into rape prosecutions last year, I restated my commitment to this measure. I was pleased to see in their final report, they too recommend the government commit to this. My strong view is that the Justice Secretary should simply drive this key work forwards.
Improving the court experience for rape victims
Attending court can be hugely intimidating for victims of crime. Many will find the experience highly-retraumatising. For rape victims, this is particularly the case.
Special measures are ways to help victims to give their best possible evidence in court. An exceptionally effective one is known as ‘Section 28’ after the clause in the statute which introduced it.
S28 says that a complainant may have their evidence videoed by the police (instead of making a written statement) which is then served on the defence. The defence then have time to prepare and when they are ready will cross-examine the complainant which is also video recorded. These two videos then become the complainant’s evidence for the trial, to be played whenever it takes place.
A huge advantage is that once the recordings are done, the complainant has finished with the proceedings. They can get on with their life and take therapy if they need to. This gets them out of the court queue, saving them perhaps years of anxious waiting. Completing their evidence close to the time of offence also aids memory recall and helps to reduce the distress experienced by some witnesses when giving evidence to a full courtroom at trial.
S28 was piloted long ago and was rolled out nationally for vulnerable complainants from the start of the pandemic. I worked with the Criminal Bar to press for this rollout and the Government response was excellent. However, that limits the use of S28 mainly to child victims. It is good news that the Deputy Prime Minister has resolved to roll it out also for ‘intimidated’ witnesses which includes adult rape complainants. After its announcement in December, it has since been rolled out to a total of 26 out of approximately 85 Crown Courts in England and Wales. This is excellent and this work must be sped up even further. There are clear views amongst some criminal justice professionals that this should be the default way in which all sexual assault complainants give their evidence. The courts have been using video evidence for almost two decades and S28 is too beneficial for victims not to be used throughout the court system in England and Wales.
Time for real accountability
Since 2016/17, we have seen a catastrophic decline in rape prosecutions. That year, the Crown Prosecution Service decided to cut the number of rape cases it prosecuted to increase its conviction rate to 60%. They would take on only what they considered to be ‘stronger’ cases. Within a year it was prosecuting almost 1,000 fewer rapes, and by the next year 2,000 fewer rapes. If there is no prosecution there can be no conviction and this decision meant that rape convictions have been at their lowest ever for nearly 4 years – having fallen dramatically from 2991 in 2016/17 to 1,517 this year. That is almost 1,500 rapists per year who are still on the streets who could have been convicted if this decision had not been taken. I, and others, have repeatedly called for it to be reversed. In its end-to-end rape review, the government committed to reversing the drop in charges by the end of this parliament. Yet the government’s action plan contained few concrete measures to genuinely transform how rape is investigated and prosecuted. And at the current rate of progress, it would take approximately 17 years to return rape charging levels to those of 2016/17.
Meanwhile, a key rape review recommendation was the roll out of Operation Soteria. The pilot (named Operation Bluestone) saw a group of highly experienced academics invited into a police force to carry out rigorous scrutiny of how it investigated rape. Its findings were of huge concern and this team of academics devised a system of ‘offender-centric’ investigation which, as ‘Operation Soteria’, has now passed on to five other forces, with the prospect of rolling it out to a further 14 police forces shortly. Ultimately, the aim is to embed Soteria as a National Operation Model. Soteria has seen strong engagement from the police so far and the government intends to also extend this to the Crown Prosecution Service. However, to date, there has been minimal engagement from the CPS, with only sporadic participation undertaken with the Soteria academics. It has taken many months for the CPS to appoint an academic of their own – with no clarity, at the time of writing, of their terms of reference. Assuming the CPS genuinely open their doors to scrutiny, I look forward to a much-improved charge and conviction rate. I urge government to ensure that all criminal justice agencies are fully engaged in Soteria and that it is rolled out to all areas without financial cost to the forces. The government has said that it will publish national and regional rape ‘scorecards’ so that at least some numbers will be made public. Transparency of data is to be welcomed but shining a light on the issue does not equate to accountability.
Yet it is accountability that drives change. If agencies continue to fail rape victims, what then? There has been public outrage about this for a long time and improvement is long overdue. There needs to be determined leadership in place, to bring about the quantum improvement so obviously needed. If the justice agencies do not offer change, the responsibility falls to government and the legislature to take more serious steps, to change the criminal justice agencies until they do this essential part of their work effectively.
This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.