The public needs accurate reporting on rape, not 'tabloid rhetoric'

A broadsheet newspaper has been criticised by lawyers for the 'sloppy' reporting of a 'pep talk' given to prosecutors on how to increase rape convictions.

The criticism follows an online news report from The Telegraph, this week, that jurors in rape trials will be more informed about the previous sexual behaviour of male defendants.

According to the paper, Alison Saunders, the Director of Public Prosecutions, has told prosecutors to focus on the controlling or coercive behaviour of men leading up to alleged rapes, rather than just the incident itself so juries have 'a fuller picture of [a] male suspect's character'.

However, criminal lawyers have pointed out that juries will not automatically hear more about a defendant's past just because the DPP has willed it so.

'Evidence concerning a defendant's previous 'bad character' is governed by a series of strict statutory provisions under the Criminal Justice Act 2003,' remarked Danielle Reece-Greenhalgh, an associate at Corker Binning. 'The prosecution may only make applications to adduce such evidence where the facts of the case require it, and not in such a way as would cause prejudice against a defendant.

'The new guidance implies that prosecutors should find evidence connected to a defendant's conduct in previous relationships. This would involve a prosecutor requesting that the police follow these lines of enquiry with previous partners.'

Putting aside the reliability of evidence gained from such sources, Reece-Greenhalgh explained that a prosecutor would then have to persuade a judge that such evidence had substantial probative value.

'While previous allegations of rape or serious domestic violence/coercive behaviour similar to the conduct in question might pass that threshold, a court is unlikely to find that evidence of a previous partner who claims generic bad behaviour by the defendant should be admitted for the jury's consideration.'

The Telegraph also reported that the DPP's guidance would lead to evidence, such as CCTV, social media, and witness testimony, now being collected from the hours before an alleged assault.

'It is unclear how this can be described as a novel approach to sexual offence investigations as this is the type of material which has been gathered for many years,' remarked Reece-Greenhalgh.

She added: 'This latest guidance appears to constitute more of a 'pep talk' by the DPP to prosecutors than any signal for real change in the way rape trials are conducted.'

Under the Twitter thread 'Let's Count The Ways In Which This Newspaper Report Gets Law Wrong', The Secret Barrister took aim at The Telegraph's 'bald assertions', 'tabloid rhetoric', and misleading statistics on rape convictions.

'While 23,000 [rapes] may be reported, far fewer are prosecuted,' explained the anonymous barrister. 'Only 4,643 rape cases were prosecuted last year. The conviction rate at Crown Court was 57.9 [per cent].

'That's not to say there's not a problem with attrition '“ the disparity [between] reports and prosecutions is troubling. But a different issue. By not giving the relevant statistics, the article gives an entirely distorted picture to its readers.'

The barrister also took issue with the story's assertion that two years ago, Saunders introduced new guidelines which meant men accused of rape had to prove a woman had consented.

'The burden of proof in criminal proceedings is alive and well. No one has to 'prove innocence',' said The Secret Barrister. 'The DPP does not have the power to uproot the fundament of our criminal justice system and require the accused to prove consent.'

'People have understandable fears [and] concerns about sexual offending and the way in which these cases are dealt with. They are awful offences that cause incomparable harm to victims, and need serious treatment by the justice system,' they added.

'But the public also need accurate and sensible media reporting to inform them. This kind of amateur sloppiness, which could have been easily avoided by checking with a criminal lawyer, is damaging and irresponsible.'

John van der Luit-Drummond, deputy editor

john.vanderluit@solicitorsjournal.co.uk | @JvdLD