In the Media

Lack of conviction?

PUBLISHED July 21, 2006

The number of rape allegations ending in a guilty verdict is at an all-time low, despite much investment in policing and victim care. But there is no quick-fix solution.

As statistics go, they are shocking. The conviction rate for rape in England and Wales is just 5.3% ? an all-time low. In the 12 months to March 2005, a total of 13,322 reports of rape were made to police, but only 702 resulted in conviction. That is just one in 20, compared with one in three in the 1980s.

This is despite endless tinkering with the legislation, the retraining of police officers, investment in the Crown Prosecution Service (CPS), the introduction of highly-praised sexual assault referral centres and specialist panels for prosecutors, judges and medical experts. What is going wrong?

The problem is that this question in itself is loaded. For whom is it going wrong? Certainly not the defendant, or defence lawyers. The victim, yes; a government concerned with opinion polls and tabloid aberration, yes. There is a fine line between the defendant?s right to a fair trial and the victim?s right to justice, and nowhere is this more apparent than the offence of rape, where typically it is just one person?s word against another. Still, a conviction rate of less than 6% defies logic, whichever side of the scales of justice you sit.

?The problem in the system today is not miscarriages of justice because the innocent are convicted, but miscarriages of justice because the guilty are getting away with it,? Solicitor-General Mike O?Brien tells the Gazette. ?If the criminal justice system is about justice, then it is as unjust for the guilty to go free as for the innocent to be convicted.?

Since publication of the Home Office statistics last spring, there has been a flurry of official reports, consultation papers and media saturation of the issue. In particular, Sussex University Professor Jennifer Temkin?s recent study on behalf of the Home Office, into the use of sexual history evidence at trial, has sparked fury from the Bar Council, angered by the suggestion that barristers are ?deviously? flouting the rules (see 2006 Gazette, 29 June, 6).

At issue are sections 41 to 43 of the Youth Justice and Criminal Evidence Act 1999, which prohibit the defence from using sexual history evidence, or questioning the complainant on that subject, unless a pre-trial written application is made to the bench as prescribed by the Crown Court Rules.

The study concludes that the rules were followed in only a minority of the trials monitored, with most applications being made verbally at trial; the suggestion was that ?some counsel appeared to time their applications to create the most pressure on the complainant? by submitting them late in the day. The Bar Council has criticised this assertion as damaging and ?unrepresentative of the conduct of the profession?.

While language such as ?devious? may or may not be appropriate, those in the frontline of rape cases, the solicitors and barristers who prosecute and defend, do back the findings.

?The observations in the Home Office report on section 41 mirrors what I see in practice,? says Andrew Keogh, a partner at national criminal law firm, Tuckers. ?There is very low, almost non-compliance with written applications. If you spring any application on someone, chances are they can?t respond in the way they would if they had time to consider an application in writing.?

Claire Ward, a special casework lawyer and rape co-ordinator at the CPS in London, is adamant that defence counsel do not typically go through the proper channels in relation to sexual history evidence. ?No, no, they don?t. Our barristers are instructed to oppose section 41 applications, but a lot of it goes by on the nod.?

There are several factors contributing to the low conviction rate for rape. Number one is the high standard of proof required, coupled with the lack of corroborative evidence in cases where the parties are known to each other. So-called ?acquaintance rapes? are by far the majority of cases to come before the courts. There are no witnesses, forensics, or medical evidence, so proving beyond reasonable doubt is almost insurmountable.

?The bottom line is that if dealing with cases where evidence is based on one person?s account of a private situation, you will always have problems satisfying the standard of proof,? surmises Angus McBride, a criminal law partner at City firm Kingsley Napley who has defended high-profile rape allegations made against Premiership footballers.

Few juries, when faced with putting someone in prison for a minimum of five years and an average of seven, will be convinced beyond reasonable doubt by just one person?s version of events, he says.

Another factor is the preconceived notions and attitudes of jurors in relation to acceptable sexual behaviour. ?Victorian? is how one defence solicitor describes it. Last November, research published by Amnesty International revealed that one in three people in the UK believe that a flirtatious woman is partially or totally responsible for being raped.

?The jury comes along with preconceptions about what rape is,? says Ms Ward. ?We get convictions in stranger rape cases because in the public?s mind, that fits the stereotype of what rape is. But in the majority of cases, the parties know each other, which doesn?t fit the stereotype. Add to this the fact that it?s just one person?s word against another, and it?s hardly surprising there are so few convictions.?

Some seek to blame the police and CPS for the low conviction rate, citing lack of resources and describing their efforts as merely ?fire-fighting?. Ms Ward denies this, pointing to the specially trained rape prosecutors who have been introduced. ?I don?t think our lack of resources comes into play necessarily. I think sometimes the system breaks down.? For example, a non-specialist rape prosecutor may slip through the net, she says, or aspects of the CPS?s legal guidance policy are not followed. ?We?re supposed to have one-to-one coverage by case workers who should be liaising with the victim and police regarding special measures, but sometimes these things don?t happen.?

The quality of police investigations and facilities for the collection of evidence are inconsistent across the country, too. London boasts the Metropolitan Police?s Sapphire Unit, established in 2001 to improve the investigation and handling of rape cases. Manchester has the world-leading St Mary?s Sexual Assault Referral Centre, one of several now in existence nationally. But these are flagships, not the norm.

As a result, there is a divergence in conviction rates nationwide ? rape convictions fluctuate between 1% and 14% depending on locality. The Sapphire Unit is currently undertaking a mammoth tracking project of all reports of rape between April 2004 and March 2005, to pinpoint success and failures, and build on lessons learnt. The Met will not comment on the issue of conviction rates until this research is complete.

The government?s approach to improving the system is publication of another consultation paper, looking at four substantive changes to law and procedure: providing a definition of ?capacity? to assist in cases where drink or drugs affect a complainant?s ability to give consent; the introduction of expert evidence into the psychological impact of rape; suggested changes to the Criminal Justice Act 2003; and a proposal to admit as evidence in chief video-recordings of a complainant?s first interview with police. The period of consultation ends on 31 July.

Mr O?Brien says: ?The government will not lower the standard of proof because that could lead to miscarriages of justice, but there are some ways in which we can make it less traumatic for victims to give evidence in the criminal justice system, and some changes in the presentation of evidence which can better help a jury reach a just verdict.?

Other new initiatives include collaboration, if one can call it that, between the CPS and the Bar Coun
cil, for an accreditation scheme for barristers wishing to prosecute sexual assault and rape cases. In fact, the CPS has set down strict criteria and will not instruct a barrister who has not earned his ticket. Nicholas Hilliard, chairman of the Criminal Bar Association, confirms: ?The bar has undertaken to provide this training, but any CPS advocate conducting such cases ought to be similarly qualified.? Training includes section 41 applications for sexual history evidence.

According to St Mary?s, which looks after around 1,000 rape victims a year and steers them through the criminal justice process, the key to improving the system is communication across all the relevant agencies. ?It has taken us a long time to develop a relationship with the police and CPS,? says centre manager Bernie Ryan. ?We think that it is really starting to make a difference here in Manchester.?

Interestingly enough, achieving a conviction is not paramount to victims, she says. At the end of the day, despite all the legal wranglings, it is getting their life back on track that really matters.