The Hatton Hotel, 51-53 Hatton Garden,

3rd September 2003

 

 
 
The Legal Secretariat to the Law Officers

Attorney General’s Chambers

9 Buckingham Gate
London

SW1E 6JP

Tel: 020 7271 2400

E-mail: [email protected]

Thank you very much for inviting me to join you at this first conference of London  rape prosecutors.

 

It gives me a chance

·        to meet those of you who I haven’t already met before

·        to tell you about developments in government’s attempts to tackle rape – and to seek your views

·        and, importantly, to hear your views about the progress you are making in ensuring rape is prosecuted

 

One of the things I most value about holding the office of Solicitor General is being able to work with you in the CPS.  And I am very encouraged by the concerted approach being taken to the prosecution of rape, not only here in London  - but across the UK.  The national network of rape prosecutors is already in operation and met earlier this year.  You have the active support not only of your policy lawyers in CPS HQ – Karen Kneller and Pam Bowen – but also of the DPP and the AG and myself.

 

The issue of rape is of particular concern to me – not just as someone who’s concerned to see that the CJS – and all public services – responds to the concerns of women – but also because I represent a London constituency.  25% of all reported rapes are in London so it is very much a constituency issue as well as a national issue for me.

 

As Law Officers, the AG and I account for your work to the Houses of Parliament – the Attorney in the Lords and me in the Commons.  And there has, over recent years, been greatly increased concern – reflected in  debates and parliamentary questions  - about the prosecution of rape.

 

 

 

This increased concern in the House of Commons has partly been attributable to the very welcome increase in the number of women MPs.  In every Home Office debate or Solicitor General’s Question time, you can count on MPs like Julia Drown, Fiona McTaggart or Vera Baird to name just a few, who will get up and ask what is being done about tackling rape

 

And the increased interest is partly due the general concern that though the number of rapes reported has increased, rape is still – of all violent crimes

·        less likely to be reported

·        less likely to be prosecuted and

·        less likely to result in a conviction

 

Our objectives – and this is shared across government – is to work together to support you and your partners in the CJS to

·        do more to tackle crime – particularly serious violent crime

·        to bring more offenders to justice and to

·        build public confidence in the CJS

 

What is needed is

·        a proper understanding of the seriousness of the crime of rape

·        the right substantive laws

·        the right procedures

·        a strong partnership between the CJS partners

·        a proper focus on the victim and

·        the right sentencing

 
The seriousness of rape

 

Those of you who are involved in these cases will know only too well how devastating the effect of a rape can be.  Rape traumatises the victim but, often, friends and family as well.

 

But it is not long since many held the view that if a woman had been raped she probably brought it on herself, or more likely that even though she said “no” she meant “yes”.  That she was his wife or girlfriend – so what’s the fuss about or, that she was drunk and so was “fair game”. And it was only as recently as the early nineties that marital rape became a crime– and it was the CPS that challenged the conventional wisdom that a man was entitled to sex with his wife, and even if it was against her consent it was not a crime.

 

So there’s a lot of myth and “baggage” around the crime of rape.  This affects the victim herself, as well as many of those in the Criminal Justice System as well as the public and the press.  Some, who really ought to know better display appalling ingnorace about rape – or event think it’s something to laugh about.  During a debate on the Sexual Offences Bill in the House of Lords, Baroness Saltoun said “as far as oral penetration is concerned, most people have a set of teeth.  Clenched teeth can provide quite a good defence……for that reason it is possible that oral penetration should be considered a lesser offence”

 

The very rare cases of women who’ve made false allegations get widely reported.  And for many, confirm the sense that rape complaints are to be treated with suspicion rather than rigour. We have to continue to challenge these attitudes – wherever we find them - and be absolutely clear – as I know you are -  that sex without consent is rape, there can be no excuses and it is a serious crime.  Our focus on rape is not political correctness – it is a criminal justice imperative.  And we will not be deflected

 

And I want to say a word, too about the numbers.  There has been a big increase in the number of reported rapes.  To the extent to which ir reflects an increase in rapes that is very worrying.  But to the extent that it reflects a greater preparedness to report – that is very encouraging.  Rape victims always face and ordeal when they report.  The fact that they have greater confidence and are more prepared to report is welcome and must be built on.

 

The figures also show an increase in the number of offenders convicted of rape.  From 320 in 1981 to 522 in 2001 – an increase of 63%.

 

But, this means that, against a background of an even greater increase in reporting, the conviction rate has fallen.  And its also the case that the conviction rate has fallen as a percentage of those proceeded against.  This reflects, I suggest, that prosecutors are more ready to press on with cases which, in the past, would not have been proceeded with – particularly in cases where the victim and defendant were known to each other.  Obviously there should be as few as possible cases taken to court – with the ordeal both for the victim and the defendant – where there is no conviction.  But it will always be the case that it is hard to predict with certainty how the jury will react in a case where often there is no independent evidence and it is her word against his. And it must be right for prosecutors not to second guess the jury but leave it to them to decide.

 
The right substantive laws

 

We need to be sure that we have the right substantive law defining rape.  And the Sexual Offences Bill – which has finished its passage in the House of Lords and will begin its Commons Stage next week – will make further changes.  The Bill has not yet become an Act.  The CPS fed into the policy discussions before it was published. I would very much appreciate your views as prosecutors on how the new provisions might help.  What would help me – as, together with my ministerial colleagues in the Home Office, Bev Hughes and Paul Goggins, we take the Bill through parliament – is for me to be able to connect my fellow MPs with the reality of rape and the CJS attempt to tackle it – rather than what may be uppermost in their minds – which will be what they read about in the newspapers. Operation Saphire and some of your team of prosecutors will be giving a presentation to the MPs who will be on the standing committee considering the Sexual Offences Bill before the committee stage starts. You have already been asked over the summer to forward examples of cases which have encountered the problems that the new laws are intended to address, and those reached me last week. All this will be very helpful in focussing the minds of the MPs.

 

The Bill includes the following changes

·        where the victim is a child under 13 the prosecution will not have to prove lack of consent

·        there will be a presumption that the victim did not consent where the victim was asleep, unconscious held against her will or threatened with violence.  That presumption will, of course, be rebuttable.

·        The current defence of honest or mistaken belief, however unreasonable such belief might be, is to be changed and the test is to be one of reasonableness

·        Rape will be redefined to include penetration of the mouth by the penis

 

There are other changes and I would ask you to consider them all and give me the views bases on your practical experience.  It will also give me the opportunity draw the attention of the House of Commons as the Bill goes through the House – to all your good work as Crown Prosecutors.  And it will enable the debate in the House of Commons to proceed on the basis of the reality of the awful seriousness of rape rather than any myths.

 

 

The right legal procedures

 

However good the substantive law, effective prosecution of rape is enormously difficult. And it is particularly difficult for male victims of rape to come forward.  Effective prosecution of rape is much more difficult than other violent crime for three principle reasons

·        Firstly, as I said, because it is likely to be the victim’s word against the defendant’s – with no other witnesses present

·        Because he is likely to argue in his defence that she consented – and that is the case with stranger rape as well as “relationship rape”

·        Thirdly because if he is acquitted she may feel that she is stigmatised by the jury, by their verdict, not only as prepared to consent to sex in circumstances which are repugnant to her, but also as a liar.

 

The combination of those factors – her word against his and his allegation of consent – means that she inevitably faces a further ordeal in supporting a prosecution.  He will call her a liar and allege consent in circumstances which, if believed by the jury, could depict her in a way which is grievously offensive to her. (Such as consenting to sex with a stranger – or with a group.)

 

It is those things which successful prosecutions of rape have to overcome.  And that means an absolute focus on giving her sufficient support to enable her to give her best evidence.

 

The CPS has, of course, been putting more emphasis on communicating directly with, and recognising the need to support, the victim. And since summer last year you have been able to apply to the courts for special measures to protect victims to enable them to give their best evidence.

 

Careful use of special measures to protect victims in court

 

I know that many of you believe that the special measures are of great importance and that you feel that it enables you to get cases to court which otherwise would not be possible.  But special measures are new – new for the police, for you and for the judges – as well as for juries. It is important that there is close liaison with the police in deciding not only whether special measures should be applied for but which of the special measures is most appropriate.  And, though I know that judges are ready to grant them, it is still important to set the case out as clearly as possible for the judge so that he/she knows in detail why that victim needs special support and why that particular special measure is appropriate, in your view. And if the case results in an acquittal it may be because in that case the victim is vulnerable – that may well be the sort of case where an acquittal is more likely.

 

Need for more training – for counsel too

 

It is now the case that the police are training officers to specialise in rape investigation, and judges must receive specific training before they are permitted to preside over rape cases, and you and your CPS colleagues are now specialising to handle rape cases and rape cases are only handled by specialists. But there’s also the important role of counsel in the “prosecution team”. Here in London, I know that you monitor the performance of counsel in rape cases.  I’d be interested to hear your feed back on this.  I know that many counsel already attend courses on special measures – the Speaking up for Justice Training. But could the CPS do more to use your position to ensure that you do not instruct counsel in rape cases uless they have the appropriate training?

 

Close partnership between CJS partners

 

The closer partnership between the police and the CPS makes a great difference to sustaining the victim – and thus the prosecution.  The closer working between police and prosecution will be reinforced by the CPS taking responsibility for giving advice at the earliest opportunity and ultimately taking responsibility for charging.  And it will be reinforced, too by the closer working of the police, prosecution and the courts.  This is being exemplified at local level by the fact that since April, each area now has a local criminal justice board.   These are the chief officers of the police CPS and the courts together with probation.  The aim is for that Board to spearhead in each area narrowing the justice gap and increasing confidence in the Criminal Justice System.  Those are the government’s two key objectives of the CJS and certainly rape is a crime where there is a large gap between the number of offences and the number of offenders brought to justice and there is a lack of confidence among rape victims in how they will fare in the CJS

 

Special importance of London

 

Ministers recognize that getting London’s CJS strategy right is a key part of improving the National picture, and of increasing confidence.  London has a disproportionate amount of serious crime, and also, as the capital, receives a great deal of  media coverage. This is why we have 3 of us CJS Ministers  meet every month to focus on London-specific issues: Baroness Scotland from Home Office, Leslie Christopher from DCA and myself.

Your experiences of the specific needs of London can and should inform those  discussions. That is why a gathering like today’s is so valuable.

 

Accountability – when things go well, or badly.

 

The new Sexual Offences Bill will put the spotlight on rape prosecutions and your work and that is welcome.  It is right that your work on these difficult and important cases should be recognised.  It is an opportunity for me to put forward into the parliamentary debate and more widely that the CPS is at the forefront of thinking on these issues and of putting best practice into effect.  I am keen to do that.  Tell me about the difficult cases which you manage to pull of.  But please also tell me in advance of cases where things have gone wrong.  I am often asked about them in the House and need to know in advance.

 

Sentences which reflect the seriousness of the crime

 

To ensure offenders are brought to justice and victims have confidence in the CJS, we must have the right level of sentencing.

 

The Sentencing Advisory Panels Guidance and the subsequent case of Milberry are very helpful.

 

The new guidelines laid down in Milberry give new starting points

 

Lowest - For a rape without any aggravating or mitigating features – 5 years on trial

Middle – 8 years on trial for

·        Rape by 2 or more

·         rape by person with responsibility for victim

·        rape following abduction

·        rape of child or vulnerable person

·        racially aggravated rape

·        repeated rape in one attack

·        rape by man suffering from life threatening sexually transmitted disease

Top – 15 years

·        serial rapes

·        perverted or phsychopathic tendencies where likely to remain a danger

 

Aggravating features

·        use of violence

·        use of a weapon

·        offence planned

·        serious mental or physical consequences on victim

·        degredation of victim during rape

·        broke into victim’s home

·        presence of children

·        covert use of drug

·        history of sexual assaults or violence against victim

 

Further factors to take into account

·        degree of harm to victim

·        level of culpability of offender

·        level of risk of offender in society

 

 

There are, however, still some cases where the judge does not seem to reflect the full seriousness of the crime in the sentence.  Of course, where the sentence is too high, the defence appeal.  When it is too low there is no general prosecution right of appeal but the AG and I can refer a case to the Court of Appeal. You can refer cases to us

·        It must be within 28 days of sentence

·        I like to see what the victims view of the sentence is – if you can ascertain it

·        It is helpful for prosecuting counsel to stay in the frame to cross-check the facts as set out in the reference.

 

We have done so with a number of rape cases. In December last year the Court of Appeal heard 5 cases which I referred and the Attorney General appeared personally as advocate.

 

In one of those cases a father indecently assaulted his daughter and raped two of her 12 year old friends.  The Court increased his sentence of 8 years to 13 years.

 

In another the offender committed over 100 rapes on his daughter when she was 14, 15 and 16.  He got three years 10 months.  On my reference it was increased from 3 years 10 months to 10 years.

 

I have looked through the 7 rape cases that we have in the pipeline –and it is interesting to note that none of them are stranger rapes. Some of them involve sickening levels of violence.   This might indicate that it is still in the area of

·        acquaintance rape, or

·        rape within the family,

·        rape of children within the family,

 

that, despite Milberry, in some cases the sentence fails to reflect the seriousness of the crime.

 

I have discussed with Karen and Pam ensuring that you see these Court of Appeal references as they are made and we keep you informed of the outcome.

 

One of the questions I’d like to pose to you is this? And this is about taking into account for the purpose of sentencing not just a guilty plea leading to a discount – but a “repugnant” defence being an aggravating feature.

Of course he must be able to challenge her evidence – and be able to put his defence.

But  we know about how much it traumatises the victim when she is accused in court of lying, or consenting to sex with a stranger or with a group of strangers or with a member of the family.  And this must be a disincentive to victims supporting a prosecution.

Currently, he can put such a defence with impunity.  But should we not see such a defence – when disbeleived by the jury evidenced by a guilty verdict – as an aggravating feature of the offence.  After all a guilty plea is a mitigating factor.  A not-guilty plea based on repugnant allegations about the victim could be seen as an aggravating feature.

 

Finally I’d like to thank all of you for the work you do as rape specialists.  I am full of admiration for your commitment and determination and it is one of the many great pleasures for me as Solicitor General to be working with you.