A powerful editorial in last Sunday’s Observer newspaper linked the facts that domestic violence killings have hit a five-year high and reported rape cases increased by 9% in the last year.

The domestic violence bill was delayed again as one of the casualties of the prorogation of parliament,

Rape, it seems, is becoming effectively decriminalised, with the vast majority of perpetrators free to continue offending. While reported rapes are on a frightening upward trajectory, all the key statistics for counter measures are tumbling in the other direction: in the past year rape charges fell by 38%, prosecutions by 33% and convictions by 27%.

“Today, a woman reporting rape has just a 3% chance of seeing her alleged rapist convicted”, according to the Observer.

The DPP blames both the police, for trying to second guess DPP prosecution decisions and making fewer referrals, and the welter of evidence available via new technology, particularly smartphones, which needs to be trawled through to gather evidence and build a case.

The apportioning of blame on the police looks more than a little unfair when you consider that CPS prosecution rates for rape have fallen almost twice as fast as police referrals to the CPS. The Observer concludes that the figures indicate ‘a damaging change in approach to prosecuting rape by the CPS’.

Rapists, it seems, continue to benefit from both the myths and stereotypes that have always clouded and challenged rape case evidence and the desire of the CPS to improve its conviction rates, with prosecutors encouraged to ‘take more weak cases out of the system’.  Since prosecutors also advise police on which cases should be referred to the CPS, they consequently have considerable influence over the falling police referral rates blamed by the DPP.

Government austerity measures which have seen a fall of 20,000 in police numbers since 2010 will also have limited police capacity to track down and arrest suspects, as well as investigate and consider the weight of evidence required to bring a successful prosecution.

The case studies in the Observer article demonstrate clearly the shocking experiences victims go though. One victim was told it was a ‘positive’ case. A year later it was dropped, in part because she did not look particularly scared or nervous when seen in CCTV images from earlier that night. The CPS needs to accept greater responsibility for the ineffectiveness of the system for bringing rapists to justice, both to provide justice for the victims and to deter future perpetrators; taking weak cases out of the system is not the answer.

After the storm there is calm; so the adage goes. There can be no doubt that Whitehall and government was hit by a storm yesterday. The new Prime Minister has made the most radical, decisive and, some might argue, brutal and ruthless re-shuffle of top positions in the government since… well, it’s hard to find a precedent if one is honest. Shock and awe might well be a headline; just as likely are two variations, depending on your perspective: shock and awesome or shock and awful.

What is clear is that this is a new look government and, as the days go by, we should start to see what the priorities are (apart from the obvious one that has topped all since 2016) and crucially how they will be addressed. Social care, education and a significant increase in the numbers of front line police officers have all been promoted by the new PM on the doorstep of Downing Street. There is another to add to the list and one that matters in terms of justice and building public confidence in our criminal justice system – the needs and rights of victims of crime.

One of the more interesting and, perhaps positive appointments has been that of Robert Buckland to the post of Secretary of State for Justice and Lord Chancellor. A barrister by profession the new Secretary has held previous roles in government as Solicitor General and latterly, Minister of State at the Ministry of Justice. He takes office just after the new Victims Commissioner, Dame Vera Baird, has begun her role. So perhaps we might hope to see a new, reinvigorated approach to victim care. 

Speaking at the Modernising Criminal Justice conference last month the Justice Secretary (the then Minister of State) opined that the criminal justice system should be much more effective at rehabilitating offenders so they don’t go on to commit more crime and create more victims and that “We all want to see justice delivered for victims of crime and a system that properly supports and protects those victims and vulnerable people too.”

The words offer promise. But, as we know, we have had many such words and noble intentions over the years. They need to be translated into action. Public confidence in the criminal justice system has taken something of a battering of  late: fewer prosecutions, a rise in violent crime, an approach to evidence gathering that has left some victims feeling re-victimised by the system. There are lots of problems that are crying out for solutions.

We know that we will never have a crime free society; there will sadly, always be new victims. But what we can do is make sure that when people do fall victim to crime they are offered the support they need and that their rights are comprehensively and effectively delivered. And we can only be sure of this when criminal justice agencies and support services are held properly to account, when their performance is measured against the outcomes victims need and to which they have entitlement.

We at Supporting Justice believe that it’s only by a rigorous, outcomes focused assessment that we can drive improvements and deliver a more effective, holistic service to victims of crime. We look forward to seeing progress in this area, and, as always, stand ready to assist the new Secretary of State in his endeavours. For more information on our approach to effective monitoring of services you may want to look at this short presentation Quality Mark and the relevant section on our website Audit and assessment

The central point of any accusation and prosecution for the offence of rape is that of consent: did the complainant (victim) give consent to sexual activity or not? On that hinges the case and any possible conviction.

Once again the issue of consent has surfaced in the context of rape and other sexual offences. This time it relates to the issue of asking (some may suggest forcing) complainants (victims) to give consent for the police to trawl through (carefully assimilate) the data contained on the complainants mobile phone and other digital devices. Failure to give this consent may result in the termination of any proceedings. The rationale behind asking for this consent is that important information that relates to the case and upon which crucial decisions (including innocence or guilt) may be determined, could  be on the phone and so make it necessary for the police (and CPS) to have access to said phone data in order to proceed with the case. Victims of domestic abuse and violence may also find themselves in a similar position.

That, I must say, all sounds fairly reasonable. We all want as many relevant facts to be available so that a just and fair decision can be arrived at in any criminal proceedings. If there is information available that will help determine whether someone is guilty or innocent of a serious offence then it is surely reasonable to ask that this may be made available to those responsible for making such decisions;  ultimately a jury in a court trial.

Well, yes, so far so good. But is this suggestion of asking a victim (complainant) to hand over their phone, possibly for many months ( the guidance suggests that the police “may be able” to offer an alternative phone to the victim), fair and proportionate? In defending the new consent form being rolled out in police forces, Assistant Commissioner Ephgrave of the Metropolitan Police has, reassuringly, suggested that this is not the finished article but a useful step along the way. Yet the premise ( and so the foundation) of the form seems to be to help address the recent and highly damaging problems around disclosure in sexual offence trials which have attracted a lot of attention.

It is certainly the case that disclosure issues can and have made a complete hash of cases and that no one, complainant, defendant, the criminal justice system or us, the public, isn’t impacted by them particularly when it comes to confidence in the system. But the new consent form does not look like the right way to help address this. The problems in the past have been about disclosure – this is not the same as not knowing about or ignorance of available information. The material was there, the police and CPS had it; they just didn’t pass it on. I’m not sure how trawling through a mobile phone addresses this, though accept that it will certainly help gather lots more information.

And that’s another issue. If the police are able to keep the phone for an extended period and give it a thorough examination what happens to the information they glean. The guidance suggests it will be kept and states that if there is any evidence of other criminal activity it may be pursued. Does this help build confidence among victims? Consider a complainant (rape victim) who may have contacts who aren’t always absolute sticklers for obeying every law of the land – and, if being honest, I suspect that could apply to just about all of us. Knowing what is on the phone (the odd text, What’sApp, email) am I going to be relaxed about handing the phone over to the police? Am I, perhaps, not more likely to just forget about it and try to get on with my life? Am I more likely to be denied justice (that sounds clinical and not at all reflective of the trauma involved)?

And what about the perception that the desire to have access to all the data on a phone is but another way of building a picture of the victim that, in truth, should have nothing to do with the case. Remember the days when juries were asked to reflect on whether the short skirt the victim (complainant) was wearing contributed to the offence happening. That helped undermine  trust in the criminal justice system and it’s hard to see how this new measure, well intentioned as it is, will help restore said trust.

Asking victims (complainants) to hand over their mobile phones and consent to what some may see as a “fishing trip” isn’t the way to address the problems with disclosure. It is, perhaps, a bit of a sledgehammer approach to what is, obviously, a hugely sensitive area. I’m sure the motives are honourable and that the police and CPS are really trying to help. But it doesn’t look to have got off to a good start. If the criminal justice system is to work it must, as the Director of Public Prosecutions and AC Ephgrave said in their briefing command “trust and confidence”. This approach is, indeed, far from the finished article.

If all this sounds to be but an academic discussion let’s remember what this is really about, indeed, what our criminal justice system is (or should be) about: people. As a rape victim has recently said: “They were the most private details of my life and they were going to be revealed to anyone and everyone involved in the case when all I was trying to do was get justice. Who in their right mind would go ahead with a complaint when this is how they’re being treated?” she said. “People are just going to get away with rape.”

Best intentions are not always enough. We need also to be aware of unintended consequences.

A response to HMIC report – PEEL: Police effectiveness 2015 (vulnerability). A national overview

By David Kenyon (more…)