Don’t base policy on moral panic Lurid tales of innocent men jailed for rape led to new rules on disclosure – with disastrous consequences

Governments have a regrettable tendency to make policy in response to headlines. It’s a particular temptation in matters relating to criminal justice, where harsh measures are frequently demanded by the ‘public’ – and ministers duly oblige. With any luck, especially in an administration with as many changes in personnel as the present one, he or she will have moved on by the time disaster strikes.

In this instance, disaster is not too strong a word for what’s happened to rape investigations. Victims who go to the police are already a tiny proportion of the estimated 510,000 women who experience rape or sexual assault each year, according to the government’s own figures. Now, though, the number of defendants being charged with rape has collapsed to a ten-year low. There was a drop of almost a quarter (23.1%) in 2017/18, with only 2,822 of the 41,186 rapes recorded by the police in England and Wales leading to prosecutions.

Women’s groups believe that much of the blame lies with draconian new rules on disclosure in rape cases, which are actively deterring some victims from cooperating with the police – and, it’s claimed, affecting decisions by the Crown Prosecution Service. Most people who saw the initial alarming headlines are completely unaware of what’s happening, even though it amounts to an unprecedented intrusion into just about every aspect of complainants’ lives.

Victims (but not defendants) are being asked to sign ‘Stafford’ statements, which give the police blanket permission to get hold of school, college and medical records going back decades. Some forces have even asked for access to notes made in counselling sessions following a rape, raising the prospect of the victim’s most intimate feelings and fears being exposed to the defence and even her alleged attacker. Some victims have apparently been advised to delay seeking counselling, in case it leads to accusations in court that they’ve been ‘coached’.

To be clear, nothing like this happens in other criminal cases. If you were mugged on your way home from work, you would not be asked to release your entire medical records, revealing episodes of depression or an eating disorder when you were a teenager. You wouldn’t have to allow the police access to your school reports, which might show that you once lied to a teacher to get out of a PE lesson. But I’ve heard about a woman who pulled out of a case because she didn’t want the entirely irrelevant fact she’d had an abortion exposed in court. Another couldn’t face being questioned by defence lawyers about her history of anorexia, knowing that it would be used as evidence of her ‘instability’. I’ve even heard of a victim whose school records showed that she once forged her mother’s signature on a note, a long-ago indiscretion that was treated as evidence destroying her credibility as a witness in an adult rape case.

These rules were introduced following a review of rape and serious sexual assault cases ordered by the then attorney-general, Jeremy Wright QC, in January last year. It followed an outcry over the collapse of several widely-publicised rape cases including that of a student, Liam Allan, whose trial was stopped after late disclosure of material to the defence.

The Metropolitan Police later apologised to Allan, saying that the officer in charge had missed key evidence that led to the trial being halted among 57,000 messages on the alleged victim’s mobile phone. In London and elsewhere, the police acknowledge that they are swamped with data from mobile phones and other personal records, increasing the length and complexity of rape investigations.

The Allan case prompted huge headlines, along with lurid claims that dozens of ‘innocent’ men might be languishing in prison because of disclosure failures in rape cases. But the results of the review ordered by Wright, published in June last year, were nothing like as widely publicised.

After examining 3,637 rape and sexual assault cases, the Crown Prosecution Service found 47 where the case was stopped amid concerns about disclosure – but concluded that none of them would have proceeded to trial even without the review process. In 18 of those cases, the police had felt under pressure to bring charges at an early stage because of fears that the defendant would abscond, commit further offences or interfere with witnesses.

No one wants men to be wrongly charged but the number of cases halted due to disclosure problems amounted to just 1.3% of the total under review. By then, Wright was about to move to a new job as Culture Secretary, and women reporting rapes were experiencing extraordinary levels of intrusion. I’ve even heard of a case where a rape victim was asked to take her mobile phone to a meeting at a police station so that her Facebook account could be accessed by the police and the defence.

Some complainants find the process unbearable and have said they don’t want to go ahead with a trial. Others, who very much want to see their alleged attackers prosecuted, have been told that their personal data includes material, such as explicit text messages, which has destroyed their credibility as witnesses. Victims’ advocates point out that a text message between friends, written after a few drinks, doesn’t prove consent in a sexual encounter several months later. But the collapse in the number of cases leading to prosecutions suggests that access to such material, even when taken completely out of context, is having dire effects. In September last year, the Guardian claimed that prosecutors in England and Wales had become markedly more risk-averse, alleging that CPS staff had been urged to take “weak cases out of the system”.

Rape cases are hard to prosecute, especially when the complainant and defendant knew each other before the alleged attack. But in an area of the criminal justice system dogged by myths about false accusations, it’s important to point out that the withdrawal of a witness, or indeed an acquittal, doesn’t mean that a complaint was fabricated or malicious. Juries have to be convinced “beyond reasonable doubt”, which is a high bar for convictions, and that happens only in about half of rape trials. The conviction rate is even lower (under a third) in trials involving younger defendants.

There is no doubt that last year’s moral panic about disclosure has had catastrophic consequences, not least in terms of the credibility of the criminal justice system. The new rules may not even be legal: following a complaint from myself, the Victim’s Commissioner for London and a number of women’s organisations, the Information Commissioner has launched a high-priority investigation into the way victims’ data is being handled.

The ICO is also investigating a separate issue into the practice of taking victims’ mobile phones, which are sometimes being kept for months while every last piece of data – some of it belonging to other people, who haven’t given consent for it to be examined – is extracted from them.

Victims don’t always realise, when they agree to hand over a phone, how long they will be without it. Last year, Dorset police were criticised by the Independent Office for Police Conduct for taking the phone of a stalking victim, Katrina O’Hara, leaving her unable to call 999 when she was attacked and fatally stabbed a few days later by an ex-boyfriend. “It is clear she was left afraid and vulnerable by not being able to contact police immediately,” the IOPC said.

Earlier this month, the Home Secretary, Sajid Javid, tacitly acknowledged the existence of a crisis when he announced a major review of rape investigations. At the same time, the conviction rate among rapes reported to the police is said to have reached a historic low of 1.9%. However you look at it, the criminal justice system isn’t working for rape victims, not least because of a bizarre role reversal in which they find themselves treated with as much, if not more, suspicion as their alleged attackers.

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Joan Smith is a novelist and columnist. She has been Chair of the Mayor of London’s Violence Against Women and Girls Board since 2013. Her book Homegrown: How Domestic Violence Turns Men Into Terrorists was published in 2019.

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