Report into rape prosecutions shows glacial pace of change at a time when redress under the Human Rights Act is threatened

It will be with a sense of deep concern, frustration and possibly even exhaustion that victims, campaigners and lawyers will read the recommendations of Dame Elish Angiolini QC’s recent report into the investigation and prosecution of rape in London.

The heads of the Metropolitan Police Service and Crown Prosecution Service commissioned the independent review last year and the report and the authorities’ response to it were published at the beginning of June.

Yet again the report raises failures at the first crucial stages of reporting and investigation, stereotyping and lost opportunities as well as communication problems between relevant bodies. To those who work in the field these issues will be far too familiar. It is a timely reminder of why so many victims of serious crime rely on their fundamental rights under the European Convention on Human Rights, enforced through the Human Rights Act, to achieve redress and justice – the only way in law to challenge such failures.

A 2014 HMIC report on police crime recording, Making the Victim Count, recommended that ‘The presumption that the victim should always be believed should be institutionalised’ and pointed to the fact that 26% of rape and sexual offences reported had not been recorded as a crime. Worryingly, Dame Elish’s report found that some officers resented this approach because of the perceived need to pursue cases ‘whether or not the allegation is true’ and considered that being ‘utterly professional’ while maintaining an ‘open mind’ might be a better approach. Such comments ignore the decades of failures that more recent reforms, guidance and policies have sought to address and possibly suggests continued resistance by those at the front line of these cases.

Dame Elish has also recommended an amendment to the law that governs sexual offences. The legal definition of ‘consent’ in this context is set out in the Sexual Offences Act 2003: “a person consents if he agrees by choice and has the freedom and capacity to make that choice”. Back in 2007 the Court of Appeal, in the case of Bree clarified the principles of consent in the context of intoxication by alcohol.

The law was not changed in any way by this case. It merely set out that a person may become incapable of consent by virtue of intoxication. Dame Elish has recommended that this principle be explicitly set out in the Sexual Offences Act “so that the impact of severe intoxication from substances is embedded in the legislation and that a powerful social message is established”.

There is possibly the sense that the law would be better understood or accepted if it was Parliament that set out these rules, rather than the courts. Many are uneasy about ‘judicial activism’ and the concept of unelected judges making new laws. However in the Bree case the court itself made it clear that it was not setting out any new law. The issue of capacity to consent is one of fact, rather than law. While any reinforcement of the clear principles of consent is to be welcomed, it is worrying that a “powerful social message” is needed for the police and prosecution to be able to gather and present the evidence necessary to secure convictions.

Dame Elish recommends that specialist prosecutors from the Crown Prosecution Service be readily accessible to senior police officers making decisions in rape cases. We represent women who, despite being the victims of serious crimes resulting in substantial physical and emotional trauma, have never had their allegations referred onto the Crown Prosecution Service. Indeed, in one case, the police told a victim that the CPS had made the decision not to prosecute her attacker but during the police complaint process it became clear that this had not happened; the case had never been referred to the CPS. In the context of this report it is unsurprising that this failure came in the case of an attack perpetrated when the victim was unable to give consent, and reflects the culture of disbelief, particularly where alcohol is involved, that still pervades.

These debates continue, while the Government remains committed to scrapping the Human Rights Act, the very law relied on by the victims of the serial rapist Warboys who were failed by the Metropolitan Police, to highlight the systemic issues in rape investigations and to obtain some redress for the additional distress and injury caused by the police failures.

The report also comes amidst criticism of the CPS for pursuing prosecutions of rape victims.

In one shocking case, [R v A [2010] EWCA Crim 2913] the police and prosecution did believe that the woman had been raped. They accepted that she was the victim of a horrific crime. She however, retracted her allegations and claimed that she had lied, in a desperate attempt to stop the prosecution because she feared for the repercussions for her should her husband be prosecuted. When she was then prosecuted for perverting the course of justice, she admitted that she had lied when retracting the complaint. The prosecution then added an alternative charge, on the basis that she had falsely withdrawn a true allegation. She pleaded guilty to that offence.

Although she was released from prison on appeal, her conviction was not overturned, rather a lesser sentence (a community order) was imposed. She was still considered guilty of a crime and worthy of punishment.

One of the public interest reasons given in favour of pursuing a prosecution for a false withdrawal of an allegation is where an unconvicted offender continues to commit crimes and escape justice, and this puts other members of the public at risk. There is a certain bitter irony here considering the police and prosecution have yet to put their own house in order in preventing offenders like Warboys from continuing to commit crimes. The report also highlights the significant gaps between the police policy on investigations, and the reality for the officers. Evidence given to the investigation by officers raised concerns that “the staff were being held to account against policies that they could barely hope to comply with due to excessive workloads” and most staff had a fear of being subject to a gross misconduct investigation. In response the MPS has promised a revision of the policies as well as a review of resources to reduce workloads placed on officers.

For the victim who is failed by the police (on an individual or systematic level), the complaints process is the only way to ensure that officers are held to account for any misconduct committed. Whilst it is no doubt a hugely stressful job, the importance of the work that the officers are tasked with should be a reason to focus on raising standards and helping officers achieve those high standards, as well as ensuring officers that should not be in such a role are identified as soon as serious concerns are raised.

Similarly, the report comments that “in a category of cases that do not achieve as high a level of conviction as other crimes, has affected the outlook of the Rape and Serious Sexual Offences Unit prosecutors” and describes an isolated and “conveyor belt style of working” which is a hugely depressing account of the work of those at the forefront of achieving justice in their cases.

Efforts made to encourage increasing numbers of victims to come forward and report rape and serious sexual offences are having an effect. The state has a duty to respond properly, to investigate and prosecute effectively. Great changes have been brought about by the resilience, dedication and perseverance of complainants, campaigners and lawyers, assisted by the protections enshrined in the European Convention on Human Rights and enforced via the Human Rights Act. The government’s current proposals threaten these fundamental rights.