Proposed reforms to sexual offence prosecutions: too black and white?

“Evidence shows that the criminal justice process for rape and serious sexual offences is still flawed and more can be done to ensure sexual offences are tried justly without traumatising complainants.”

So says the Law Commission in its explanation of its proposals for the reform of sexual offence prosecutions, published on 23 May, 2023 (the culmination of a project which originated from the government’s 2021 End-to-End Rape Review).

Few would argue with the first part of the Law Commission’s statement. Complainants, defendants and prosecutors have for many years struggled with delays, overly-complex rules of evidence and procedure, and other difficulties. And the second part is certainly true, too: complainants will almost always find the criminal trial process stressful, and sometimes traumatic. But this does not tell the whole story. Any reform of the criminal justice system must also keep the rights of the defendant at the centre.

It is often easy to forget that fairness to the defendant does not need to mean unfairness to the complainant; the two are not mutually exclusive. Unfortunately, the Law Commission may have fallen victim to this fallacy. Although the rights of the defendant are acknowledged in the Law Commission’s consultation paper, they often appear as secondary concerns. Saying they are an ‘afterthought’ may be putting the position too strongly.

The Law Commission states that all of the provisional proposals it has set out have been tested against the defendant’s right to a fair trial, which it describes as “a fundamental constitutional right recognised by the common law and guaranteed by the European Convention on Human Rights”.

However, this balance has been lost in the forest of detailed proposals, discussions and comparative legal analyses found through the Law Commission’s lengthy public documents. The core paper is 730 pages long, while the summary runs to more than 50 pages.

It’s impossible to do justice to a paper of this size in one short article, but there are two very important points worth noting.

The first is that the Law Commission often veers towards a black and white approach, forgetting the all-important shades of grey. At times it reads like a populist manifesto rather than an independent dispassionate review. A criminal rape trial has a zero-sum outcome for a defendant; a loss means being branded a rapist for life and at least four years imprisonment. What the paper could but does not do, is consider ways of allowing more specific identification of what exactly an individual has done wrong, eg differentiating categories of rape and sexual assault as we do with unlawful killing. Instead, it presents a set of options which would create a straitjacket for any defendant.

Secondly, the Law Commission’s paper includes a number of what are described as ‘more radical proposals’. The Law Commission explains that it felt duty-bound to include these in the paper; inevitably, it is these which have received the most media attention. Perhaps irresponsible to include them?

These proposals include the idea of introducing specialist examiners to take evidence from complainants, allowing them to avoid the attentions of a defence advocate. But (unless the most extreme option of employing ‘communications experts’ rather than lawyers was chosen) these advocates would ultimately be drawn from the same overall pool of skilled criminal barristers as those acting for the prosecution. This proposal could imply that a barrister instructed by a defendant would treat a complainant more poorly than one working in this special role, which is to cast aspersions on the professionalism of the criminal bar.

This proposal, along with some others in the paper, such as introducing vetting of juries or even removing juries from certain trials altogether, would if taken up represent a lurch to a more managed, investigative process.

This is where the paradox lies, which ultimately undermines this vast set of proposals. Despite the inclusion of ‘radical’ proposals, the Law Commission does not consider the option of a much broader reform of the system as a whole. Instead, there are attempts to overlay aspects of a European-style inquisitorial system onto an adversarial system. This could only result in increased confusion, further miscarriages of justice and would do much more harm than good.

Sandra Paul is a partner at Kingsley Napley LLP.