Rape Review progress report: ‘could do better’

In February, the government published a progress report in regard to their ‘end-to-end’ Rape Review.

In his article for the Daily Mail, coinciding with the progress report, the Lord Chancellor and Secretary of State for Justice, Alex Chalk KC MP, commended the progress to date, extolling that the report, ‘shows more rapists being brought to trial, with the number of adult prosecutions higher than in 2020, and sentences up by around a third’.

While an aim of the criminal justice system is of course to fairly and successfully prosecute those individuals who are guilty of rape, some of the actions in the report appear to miss certain key rights of defendants. The report is aimed at instilling confidence in those who report sexual offences. However, the rights of defendants mustn’t be jettisoned in the process. History has shown that trimming back crucial protections for convenience serves nobody, including the victims of crime.

While several of the report’s headlines will no doubt appeal to the wider public and garner support for this government, when one looks at the reality of several of the measures, things are not entirely as they seem. Is Mr Chalk’s glowing (and self-marked) report really justified?

The detail

To anyone with a passing interest in the criminal justice system, several issues jump out. Firstly, the report considers digital disclosure (‘key lever 5’), including the extraction of data from a complainant’s mobile phone. The swift handling of digital data extractions and the return of mobile devices to a complainant (24 hours is proposed) is welcome. However, it is crude and unhelpful to refer to the process as a ‘digital strip search’. This doesn’t correctly describe the position and feeds into the very narrative which may deter reporting of offences.

Crucially, a complainant cannot be compelled to provide access to their mobile phone. Extraction of data can only take place with the complainant’s agreement. This has always been the position, albeit it is now legislated for under the Police, Crime and Sentencing Act 2022 (Section 37). Even if a full download is completed, the defendant nor their legal representatives are given unfettered access to the data. Only material which satisfies the statutory test of disclosure (in that it may undermine the prosecution case or assist the defence case) will be disclosed. Further safeguards exist within the trial process and rules of evidence, such that only relevant material will be admissible for use in court. The reality is that only a fraction of material, if any at all, is disclosed, with an inevitably smaller amount being relied on in court. Deckchairs, arranging, etc.

While the needs of the complainant are rightly a key focus, the importance of a fair and proper investigation (and subsequent disclosure) mustn’t be forgotten. The well-publicised case of Liam Allan is a stark reminder of the risk of miscarriages of justice if this isn’t properly considered. The report states, ‘[W]e need to ensure that victims… are confident that they will be supported, listened to and believed at every stage’. While a complainant must of course be fully supported throughout the process, the sanctity of the right to be presumed innocent until proven guilty must remain. Investigators have a duty to consider all reasonable lines of enquiry, which may point toward and away from a suspect’s guilt.

Also, worth lamenting, ‘key lever 6’ is aimed at improving the experience of complainants attending court. Like an excited pupil barrister freshly on their feet and making a duff point, the report announces, ‘Pre-recorded cross examination (s28) was used by 139 victims in adult rape cases between April-June 2023, an increase of 31 on the previous quarter, sparing victims from retelling their story in the glare of a live trial’.

This special measure, under Section 28 of the Youth Justice and Criminal Evidence Act 1999, allows complainants to be cross-examined in advance of the trial, by video link, from outside the court room. This video is played to the jury during the trial. Makes sense, on the face of it.

The aim of the measure is clear. It removes the complainant’s need to give live evidence at a trial, in any degree of proximity to the defendant, and hopefully with less time between the initial complaint and cross-examination. However, a study by University College London found that the conviction rate was 20% lower in rape trials (since 2016) that involved pre-recorded cross-examination. This isn’t altogether surprising. In Section 28 cases, the jury often get the entirety of the complainant’s evidence on a screen. We consume a vast amount of distressing information via a screen, from harrowing news stories to grizzly crime dramas. It may well be the case that such over saturation means that we are becoming impervious to what we see on screen. Members of a jury may feel disconnected from a complainant and their evidence, in contrast with facing the defendant, in person, in court.

Whatever the rationale behind the use of Section 28, the data shows it is having a negative impact on conviction rates, something complainants probably aren’t told before deciding whether to use the option or not.

The report majors on how complainants will be afforded greater protections in their reporting of sexual offences and ongoing support in any investigation. It’s mostly commendable stuff, but we’re left wondering, is the Rape Review one of substance or more about sound bites?