OPINION Disclosure in criminal trials: an unjustified moral panic in rape cases?

© iStock/Tinnakorn Jorruang
Two years on, an assessment of R v Allan’s impact on reform of disclosure duties in criminal trials – and the prosecution of rape cases more broadly. By Anthony Metzer QC and Dr Charlotte Proudman

On 30 January, as the Crown Prosecution Service released quarterly prosecution data for the first time, Victims Commissioner for England and Wales, Vera Baird QC wrote to the then Attorney General, Geoffrey Cox QC calling for a new and fully independent investigation of the ‘disastrous’ fall in rape charges and prosecutions over the last two years to tackle the ‘crisis of confidence held by rape victims in the justice system’ which, she said, was likely to affect complainants’ willingness to take cases forward.

This followed on from news that broke in December 2019 of a steep fall in rape convictions in England and Wales partially due to a lack of resources leaving the criminal justice system ‘close to breaking point’, according to a report by independent CPS watchdog Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI). The ‘unnecessary and intrusive’ disclosure of complainants’ phone and medical records has also been criticised by victims’ organisations.

Disclosure of personal material in rape and sexual assault cases has dominated headlines since the collapse of Liam Allan’s rape trial in December 2017. The CPS had charged Allan with 12 counts of rape and sexual assault. His trial collapsed after the police were ordered to hand over mobile phone records, which should have been disclosed to Allan’s legal team well in advance of the trial. A computer disk contained around 40,000 messages between Allan and the complainant, which reportedly showed that she had had consensual sex with Allan. There were also references to rape fantasies. The messages undermined the prosecution case to such an extent that all charges against him were dropped. Two years after the Allan case, this article explores its impact on the reform of disclosure duties in criminal cases and the prosecution and conviction of rape cases more broadly.

Following Allan’s acquittal, a series of sexual offences cases were dropped by the CPS because they had failed to comply with their duty of disclosure to the defence. Interestingly, but concerningly, the media has chosen to report almost exclusively on prosecutions for sexual offences which were dropped, excluding the vast array of other criminal cases which were dropped because of disclosure issues. Indeed, the BBC found through a freedom of information request in January 2018 that charges against 916 people for a range of criminal offences had been dropped in 2016-17 due to disclosure failures, which was a rise of 70% from the 537 in 2014-15. In our view, this has had the effect of creating a moral panic in those cases, rather than exposing the structural problems relating to disclosure within our criminal justice system as a whole. This may well be explicable by the media propagating the pervasive narrative that women lie about rape which taps into deep fears of false accusations. However, the reality is very different – Home Office research shows that only 4% of cases of sexual violence reported in the UK were found or suspected to be false by the police.

Catalyst for disclosure reform

The Allan case was widely reported in the media as a miscarriage of justice and it became a catalyst for reform of best practice for disclosure by the police and the CPS. Whilst it is clear that disclosure of relevant material is imperative for fairness and justice to prevail, the fall-out from the case, we would argue, has had an unfortunate wider impact upon possible rape cases since. The media rightly highlighted the failure to disclose unused material in that case which could support the defendant’s innocence and show the complainant to be lying. However, the knock-on effect has resulted in fears, not simply of an unfair and an ineffective justice system, but of also reinforcing the trope that women lie about rape. Allan was presented in the media (fairly in respect of the disclosure failure) as a victim of the system, and very sympathetically generally. The judge in the case said: ‘Mr Allan leaves the courtroom an innocent man without a stain on his character.’

There is, of course, an important distinction between a failure to disclose relevant material and a defendant’s guilt or innocence (we make no comment on the particulars of this case; as the judge stated, Mr Allan left court an innocent man). It is also important to note, again in general terms, that messages showing that a complainant and a defendant had at some stage had consensual sex does not necessarily indicate that consent is assumed and rape can never take place. The landscape of disclosure in criminal cases has been the subject of much debate since the Allan case. The first major review established after the Allan case was an urgent Joint Review of the Disclosure Process in the Case of R v Allan led by the Metropolitan Police Service and the CPS London. One month after the Allan case collapsed, the Review published a report finding that there was no evidence that the complainant’s phone download was deliberately withheld by anyone in the criminal justice system but rather the disclosure problems in the case ‘were caused by a combination of error, lack of challenge and lack of knowledge’. In our view, the consequence of disclosure problems for rape complainants has been marginalised by the criminal justice system. Rape complainants often undergo a gruelling investigatory phase; they are frequently subjected to harrowing (although necessary) interviews focusing with microscopic detail upon a traumatic event, as well as being generally compelled to hand over their phones.* In some cases they are also expected to divulge intimate details of past sexual relationships and their therapeutic notes. Complainants can be left waiting for months, or even years for their case to be heard, only to have the case delayed or dropped if the police and the CPS have not properly complied with disclosure duties. In these cases, surely complainants are disadvantaged by an unfair justice system before the trial itself?

The Justice Commons Select Committee conducted an inquiry into ‘disclosure of evidence in criminal cases’ and published its report in July 2018. The report reminded the CPS that it has a fundamental duty to disclose relevant material collected by the police in the course of an investigation to the defence to ensure a fair trial. It was acknowledged that there are disclosure problems across the board in criminal cases (not simply rape trials) and these have continued over many years. The report states: ‘Problems with the practice of disclosure have persisted for far too long, in clear sight of people working within the system… it is further disappointing that the Attorney General in place at the time of inquiry stated to us that he was aware of problems going back as far as 1996 but yet the problem had persisted and apparently worsened under his watch…’ (para 26).

Over the years, sensitive data on the phones of complainants and defendants has increased in volume due to the growth of smart phones and social media. Smartphones can contain up to 30,000 pieces of information. Meanwhile, the CPS budget has been cut by 25% since 2010 resulting in the CPS being overstretched at a time when it clearly requires additional resources. The report states: ‘The Law Society noted in their submission that at the same time as this increase in the volume of material, on-going cuts to the funding of the police, the prosecuting authorities and the defence have seen a reduction in the number of people dealing with cases’ (para 31). Drastic cuts to the police and the CPS are inevitably going to have a substantial effect on best practice for disclosure and the handling of sensitive cases, such as rape, that require more intensive work.

Funding v fairness: behind the numbers

There are growing concerns that balancing cuts to the policing and the CPS budget with a need to comply with resource-intense disclosure has resulted in fewer cases of rape (which are often more resource heavy) being prosecuted and therefore convicted. The CPS Annual Violence against Women and Girls Report published on 12 September 2019 shows that there has been an annual increase in the number of reports of rape to the police since 2007-08 when the figure stood at 12,673; in 2018 it rose to 57,600. Surprisingly, the increased reporting has been met with a fall in prosecutions and convictions. Between 2018-2019 there was a 15.1% fall in prosecutions and a 14.3% drop in convictions across the domestic abuse, rape and sexual offences caseload. There is a 12.3% fall in the number of investigations referred to the CPS from the police.

The reasons why the conviction rate is so low are complex and multi-faceted. Some of the reasons include the difficulties of proving to the high criminal standard of proof so that the jury are sure that a sexual offence has occurred, when the allegations are usually in private between two adults who fundamentally disagree as to what occurred. There can also be a reluctance of jurors to convict for other reasons, including false perceptions about how rape victims should behave (despite judicial directions mandatorily introduced to assist them) and a level of over-identification with the defendant by both male and female jurors; male jurors could put themselves in the shoes of the defendant, whilst female jurors might imagine that their fathers, husbands or sons could be in a position like the defendant. The disclosure failings presented in the media have, we argue, unfairly created a wave of sympathy towards the defendant on trial and reinforced doubt that the prosecution has fairly established guilt.

The CPS report made a number of recommendations for the CPS in sexual violence cases but it cannot compel an increase in policing and CPS budgets. The main recommendations illustrate the need for transparency to increase public confidence in policing: HMCPSI will hold a review of rape charging decisions to increase accountability and reassure victims of sexual offences; violence against women and girls (VAWG) statistics, including rape charges, being published more regularly; a mandatory training programme for specialist rape prosecutors; and a project to understand changing sexual behaviours and associated myths and stereotypes. The dangers with introducing flirtatious or even banal, practical text messages sent between the complainant and the defendant may have, for example, the unfortunate and surely unintended consequence upon the number of marital rape allegations proceeding. What the Allan case and the fall-out from it appear to have established is that evidence of a previous consensual sexual relationship has substantially contributed to negating claims of rape.

Many reports of rape cases are not prosecuted and even fewer end in conviction.** The current climate makes rape prosecutions and convictions even more challenging. The result, we argue, is that the state is failing in its duty to end violence against women and girls by allowing perpetrators of sexual violence to abuse with impunity. Given such concerns, the ‘end-to-end’ review overseen by the Criminal Justice Board is examining how the criminal justice system deals with rape cases from the moment they are reported until they conclude in a conviction or acquittal. Vera Baird QC, who sits on the review, commented that the CPS ‘should not see things like [the victim’s] disability, mental health issues or even previous sexual history as barriers to prosecution’. Baird QC has proposed to the government that rape victims ought to have their own independent legal advocates to challenge ‘intrusive’ probes into their private lives.

Director of Public Prosecutions Max Hill QC said that he shared ‘the deep public concern over the growing gap between the number of rapes being reported, and the number of criminals being convicted of this sickening offence’, and that the CPS is playing an active role in the review ‘which is looking right across the system to understand the reasons for this’.

Victims’ organisations have called for the ‘end-to-end’ review to adopt a number of proposals including guaranteeing a special advocate for every complainant to help them understand and navigate their way through the system; a ban on the complainant’s sexual history being adduced as evidence; the introduction of restrictions on disclosure rules for the examination of phones, as well as medical and other private records, to respect complainants’ privacy; a review of the rules on cross-examination in rape cases to prevent (mainly) women being subjected to degrading treatment; and the consideration of alternatives to jury trial for rape cases, which is a highly controversial proposal due to jury trials being a fundamental tenet of criminal law. The review is ongoing and it is not yet known whether any of the recommendations proposed will be adopted.

At risk of large-scale injustice?

As headlines showing the falling numbers of rape prosecutions (and convictions) proliferate, our criminal justice system may be failing to bring perpetrators to justice and provide legal redress for complainants. They run the risk of waiting months or even years before giving evidence at trial. Meanwhile they have to comply with wide-ranging and substantial disclosure requests. Such circumstances can make it difficult for complainants to trust the police and the CPS to prosecute their case with fairness, properly and without undue hardship for them. The London Rape Review conducted by the Mayor of London’s Office for Policing and Crime and the University of West London in 2019 found that thousands of rape cases have been dropped by complainants because of the ‘stress and trauma caused or exacerbated by the investigation’. Reform of the criminal justice system is needed more than ever. But without increased funding commitments, how can recommendations for reform be properly implemented? Expensive and time-consuming public reviews and inquiries into our problematic criminal justice system are in process but earlier reports have already identified the key problems. Remedying structural problems needs to be met with funding to implement widespread reform on many levels – without resources, we fear that large-scale injustice could almost inevitably be perpetrated to victims of rape and sexual abuse, if not across the whole criminal justice system.

 

* Complainants’ phone messages: The Court of Appeal has recently said that the complainant's phone messages do not have to be automatically handed over to the defence: McPartland and Grant [2019] EWCA Crim 1782.
** Rape case falling statistics: The number of rape cases referred by the police for charging decisions fell by 32% in the year to September 2019, while prosecutions by the CPS fell 26% and convictions dropped 21%, according to Guardian analysis of quarterly CPS prosecution data. Judicial review: The End Violence Against Women Coalition is bringing a judicial review against the CPS which claims the CPS has changed the way it makes decisions in rape cases in a way which is unlawful and which discriminates against and harms women. The Coalition has also urged the Attorney General to ‘reject the HMCPSI report as a satisfactory answer to the Rape Review[‘s]…questions’ and to urgently examine alternative ways of investigating current CPS policy and practice involving external experts.
Category: 
Issue: 
Author details: 
Anthony Metzer QC

Anthony Metzer QC is Head of Goldsmith Chambers and practises in crime, civil and immigration law and holds various judicial positions, including sitting as a Deputy High Court Judge.

Dr Charlotte Proudman

Dr Charlotte Proudman is a barrister at Goldsmith Chambers and a Junior Research Fellow at Queens’ College Cambridge.