Last week I sent this letter to the Guardian after it endorsed a report by a coalition of feminist groups about the current state of the criminal justice system.
Dear Sir
There does remain much to be done to improve the handling of rape complaints by both the police and the CPS. But it was surprising to see the Guardian endorse a report from a number of feminist groups which also includes a wholesale attack on the rights of those accused of such crimes. (“Our broken system lets rapists off and victims down. We must overhaul it.”, 5 December.) This report endorses arguments that we must believe the victim, further limit disclosure to the defence, ban questioning about sexual history, abolish jury trial, replace the adversarial system including challenging cross-examination with the inquisitorial system and even questions the criminal standard of proof, whilst retaining in full criminal sanctions that mean prison sentences of many years.
Your leader makes no mention of the near catastrophe that disclosure failures caused in the case of Liam Allen and several others highlighted in 2017. There is no reference to the report in 2018 by Professor Laura Hoyano, commissioned by the Criminal Bar Association based on interviews with dozens of criminal barristers who both prosecuted and defended in the cases, that found that s.41 [limits on questioning on sexual history] was working well to prevent inappropriate questioning of complainants. Nor was there mention of the recent article in the Criminal Law Review by Professor Cheryl Thomas based on interviews with actual jurors in rape cases which suggested that juries do not necessarily harbour old fashioned rape myths.
It ill befits the UK’s leading liberal newspaper to be seen to endorse such extreme, one-sided views whilst simultaneously ignoring important counter arguments.
Yours faithfully
The Report
Much of the report entitled “The Decriminalisation of Rape” is concerned with the role of the police and particularly the CPS in the investigation and prosecution of rape and other serious sexual offences. A lot of the material in the report explains the current dispute in which at least one of the groups behind it, the Centre for Women’s Justice, has recently been granted permission to judicially review the CPS over an alleged policy change to encourage prosecutors to discontinue what the CPS regard as weak cases so as to improve the overall success rate of CPS prosecutions. As I said in my letter, I am sure much remains to be done in respect of both the way the police handle complaints of rape and other serious sexual assaults and how the CPS handle cases referred to them by the police. I will leave it to others better qualified than me to comment on such matters.
My concern is that the organisations behind the report have taken the opportunity to have another go at what is alleged to be a trial process no longer fit for purpose as far as these types of offences are concerned. None of the arguments is new. They have all been answered in the past by various commentators. Presumably they are included in the report in the hope that if you repeat something often enough some people will eventually assume they must be true.
I shall pass quickly over the obvious but embarrassing mistake in the Executive Summary [p.4] where it is claimed that a unanimous jury verdict is needed for a conviction. The report includes arguments about juries being biased against rape complainants and incapable of avoiding so called “rape myths” about how complainants might behave after a sexual assault. The report states without providing any evidence that;
“it has been widely accepted by criminal justice bodies that many members of the public continue to believe in long-standing ‘myths and stereotypes’ relating to rape, which do not correspond with reality, result in disbelief of victims/survivors, and are now out-dated in the eyes of the law. One very significant obstacle for the prosecution when seeking to prove its case is therefore that juries may arrive at court with preconceptions – about how a ‘true’ victim will behave in the aftermath of a rape, for example – which may be based on stereotype rather than evidence.” [p.23] You wouldn’t know it from reading this report but as criminal law practitioners will know, judges these days direct juries about such myths either at the start of the trial or before the complainant gives evidence and often repeat the directions as part of the summing-up.
At about the same time as the report was published an article by Prof Cheryl Thomas appeared in the Criminal Law Review[i]. Prof Thomas is the only person authorised to speak to jurors after their jury service. She carried out interviews with 771 jurors from four court centres over a two year period. Her research suggested that contrary to the opinion expressed in the report jurors do not hold the sort of prejudiced views complained of. No doubt it may be said the sample of jurors could have be larger or that a different group of jurors might have given different views on the matters asked but this is the outcome of real research with real jurors not volunteers in mock juries.
The Henriques Report on Operation Midland.
The report takes aim at Sir Richard Henriques who in 2016 published an interim report on Operation Midland, the Metropolitan police inquiry that led to the fabricated account of Carl Beech. Two of Sir Richard’s conclusions included advising that the police should discontinue the policy of “believe the victim” because this led to an unbalanced approach to police inquiries. The second conclusion was that in the context of criminal proceedings it was inappropriate to call a complainant a victim at least until the fact of an offence had been confirmed by a conviction. Until then the person remained a complainant. Both conclusions are castigated in the report. [p.25]
But the absurdity of the feminist position becomes apparent when there is brief reference in the report to the 2017 case of Liam Allen, the university student falsely accused of rape. As readers may recall, the trial collapsed after a disc containing the download of the complainant’s phone was finally disclosed to the defence only after the trial was well underway. The contents of the phone download established beyond any doubt that the complainant was lying in the account she had given to the jury. The prosecution immediately dropped the case and Mr. Allen was acquitted. Despite this, the report insists on referring to this liar as “the victim.” Since Mr. Allen would likely have received a prison sentence in double figures if he had been convicted on this false and lying account, I suspect he might have other ideas about who the victim really was in this case. It is hard to take seriously a report that doesn’t acknowledge such simple realities and it undermines any credibility the report can have on other equally contentious subjects.
Questioning on sexual history – s.41 Youth Justice & Criminal Evidence Act 1999
Without referring at any point to any evidence that questioning complainants about their sexual history [SHE] is being abused the report calls for a ban on such cross-examination. The terms of s.41 are set out in the report but the reader is told nothing more than that. In fact no sooner had this provision been introduced by Tony’s Blair’s Labour government in 1999 than the lawfulness of the provision was challenged in the case of R v A (No.2) in 2001. The House of Lords held that the strict language of s.41 amounted to an almost complete ban on questioning about previous sexual history. This was a particularly acute issue in that case where the defence wished to explain to the jury that the defendant and the complainant were not strangers but were in fact in a sexual relationship which many might think could be relevant to the issue of consent or belief in consent. The House of Lords held that a literal interpretation of section 41 could mean the section breached the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights and therefore had to consider whether to issue a declaration that s.41 was incompatibility with the Convention. In the event this was only avoided by a so-called “reading down” of the terms of s.41 so that when the section says “no question may be asked in cross-examination…about any sexual behaviour of the complainant” what this actually means is that such questions may be permitted if necessary to ensure a fair trial.
Since the report claims that “The law on ‘SHE’ has long been queried by victims/survivors’ organisations” some reference to the views of the most senior court in the UK might have been considered worthwhile. Certainly, a serious report might have been expected to deign to mention this significant gloss on the meaning of s.41 before launching into an attack on its use in court. The absence from the report of any evidence that s.41 questioning is being abused may have something to do with the fact that such “research” as has previously been carried out by feminist groups had been systematically demolished in a report in 2018 by Professor Laura Hoyano from Oxford University. This “research” included a hilariously inadequate study conducted by the current Victim’s Commissioner, Vera Baird Q.C.. Prof Hoyano’s report was commissioned by the Criminal Bar Association which represents criminal barristers in England & Wales who prosecute and defend in such cases. Dr Hoyano interviewed a large number of criminal barristers directly involved in making and opposing applications under s.41. Her research established that a substantial majority of barristers involved in these cases considered that the Act was working well. The research showed that applications to introduce such evidence only occurred in about one case in every four and that such evidence, when not agreed, was only allowed to be heard in less than one case in five. Since Prof Hoyano’s research casts a rather different light on the actual use of s.41, the complete absence of any reference to her report further undermines any claim that this part of the report should be taken seriously.
Jury trials
Little about trial procedure escapes criticism, from the adversarial system itself, which is said to allow “ruthless cross-examination in the courtroom,” [p.57] which it is suggested “amounts to inhuman and degrading treatment” [p.78] and which “re-traumatises the victim”, to the standard of proof and even the fact that juries acquit.
Indeed the report asserts that:
“The adversarial legal system is not working for rape and sexual abuse cases, and in recognition of the exceptional problems in evidencing and testing this crime, there needs to be a different and fairer whole-system approach.” [p.76] In case of any ambiguity the report clarifies that “we recommend the judiciary in England and Wales consider how a more inquisitorial judicial approach might be adopted in rape trials.” [p.3]
No system of deciding guilty of criminal charges can claim to be indisputably better than any other. It is noticeable however that the suggestion from the feminists only applies to trials of rape and other sexual assaults and no claim is made that this should apply to any other offences. It seems only this category of offences should be treated in this wholly exceptional way. The Secret Barrister devoted two chapters in their first book of the same name to the issue of whether an inquisitorial system is to be preferred to an adversarial one and nothing I can say will improve on the arguments set out there.
Amongst other claims made in the report are that:
“The ordeal of cross-examinations for victims/ survivors have been widely accepted as problematic, with Codes of Conduct (Bar Council, 2004) in place that are supposed to prevent improper questioning. Despite this, damaging cross-examinations continue to take place, with academics arguing that cross-examination is used to humiliate and intimidate witnesses (Smith and Skinner, 2012).” [p.61]
The references alone suggest this particular claim is somewhat dated. Whatever may have been the position back in 2004 is not remotely representative of the reality of cross-examination today. In recent years all barristers undertaking cases involving sexual allegations have been required to undertake specific training in the cross-examination of vulnerable witnesses. Quite apart from whether it is tactically sound to risk alienating the jury by adopting an overly aggressive cross-examination in most sex cases, few if any judges would allow it to continue for more than a very few questions.
The report quotes one victim as saying that:
“being cross-examined was as traumatic as the rape, except with the added humiliation of a jury and a public gallery.” [.61]
So it seems that not only must the jury be abolished in these cases but they should also be held in private. Reading this report, it would be easy to forget that the complainant isn’t the only person with a direct interest in its outcome. Contrary to the impression given by this report, the law and courts have bent over backwards in the last twenty years to accommodate the needs and provide a greater degree of comfort for complainants in sex cases. It should not be forgotten however that the person being accused of a very serious crime faces many years in prison if convicted, along with loss of job prospects and a huge impact on every other aspect of their lives.
But nowhere do the authors of this report reveal their true ambitions more clearly than in the following passage:
“Jury disbelief continues to be a major source of re-traumatization for victims/survivors, as it invalidates their lived truth and experience. The trauma of the rape itself, the re-trauma of the trial and the devastating acquittal is life altering, influencing day-to-day choices of victims/survivors and severely affecting their mental health.” [p.62]
You see the real problem with these cases is that juries acquit. Elsewhere the report acknowledges that the problem with many sex cases is that for obvious reasons there are not usually any witnesses to such conduct and that therefore it is often one person’s word against another. And here again the mantra ”believe the victim” shows how pernicious it is. If you really do believe that then any acquittal must be an affront to your belief that the victim must be telling the truth and since jury acquittals involve re-traumatising the “victim” then acquittals must also be abolished.
No surprise then to find that the report ends by calling for a “Special Commission to examine the efficacy of juries in rape trials, because perceived or real jury prejudice acts as a driver of injustice at every stage.” [p.78]
No doubt the authors hope their report will be taken seriously. I have not sought to comment on the sections relating to the police and CPS. However the section relating to criticism of the trial process does not deserve to be taken seriously. Its claims about jury trials appear to be based on supposition and anecdote alone. Many of the claims made in this section of the report are factually inaccurate or outdated and they collapse as soon as they are confronted by the product of professional research. The conclusions reached in respect of the future of jury trials are deeply reactionary and one-sided. They would lead to gross injustice, which is why I was surprised that the leading newspaper of the liberal left should think it appropriate to give the report its endorsement.
One of the abiding arguments of this as with other previous reports is the low number of complaints that result in prosecution. Indeed the report points out [p.4] that only two women in ten who have been raped report it. Nothing is more guaranteed to deter genuine complainants from coming forward than to read reports full of factual inaccuracies and poorly supported arguments which do not paint an accurate picture of what happens when rape cases do go to trial.
[i] Crim L.R. [2020] 987, “The 21st century jury: contempt, bias and the impact of jury service.