End-to-end rape review: Government report aims to improve numbers of rape prosecutions and build public confidence in the police and CPS

18th June 2021 Business Crime

An ‘end-to-end’ Government review has been published today, which looks at how our criminal justice system deals with serious sexual offence cases, with a mission to “to understand why we are letting down rape victims, and to right this wrong.”

The review, which started in 2019 and was led by Justice Secretary Robert Buckland, provides a set of actions that are intended to “drive system and culture change”, according to Home Office Minister Kit Malthouse, as the Government tries to grapple with shockingly low rates of prosecutions and convictions for serious sexual offences – an incredibly important issue that we have previously highlighted.

The Home Office Minister’s comments reflect a shift in approach, from a focus on the credibility of victims toward a more suspect-orientated investigation that “recognises that patterns of behaviour are a significant feature of rape and sexual offences” – albeit, in the knowledge that a delicate balance must be struck, given the fundamental principle that a defendant is innocent until proven guilty.

In summary, the review aims to:

  • Return rape prosecutions to 2016 levels
  • Ensure and improve victim engagement at every stage in the process
  • Push through complex and high quality cases
  • Increase public confidence in the police and CPS
  • Increase guilty pleas and improve timelines on cases coming to court
  • Limit requests for information from victims to what is “reasonable and proportionate”
  • Maintain defendants’ right to a fair trial through quality case building and “robust and appropriate” disclosure 

Here, we consider the potential impact of the review and the shift in focus that it envisages on this challenging and highly controversial area of criminal justice.

Need for change

It cannot be argued that this area of policing and public prosecutions isn’t in dire need of improvement as prosecutions and successful convictions have “plummeted year on year since 2016/17”.

The review makes welcome commitments on victim support, ministerial accountability, reporting and, crucially, on funding for the sector including boosting funding for rape and domestic abuse services for 2021/22 by £176 million, which includes the introduction of a new £27 million national fund to expand the recruitment of specialist sexual and domestic violence advisors. The review also recognises CPS efforts to counter ‘rape myths and stereotypes’ with prosecutors being trained on updated guidance to ensure they do not adversely affect decision making on bringing charges.

‘Digital strip search’

Among the many areas addressed in the review some of the most sensitive deal with the initial stages of the police investigations and the requests for information being made of victims.

Investigating Police forces have a legal responsibility under the Criminal Procedure and Investigations Act 1996 to pursue all reasonable lines of inquiry, regardless of whether they lead toward or away from a suspect.

In 2019, Police relied upon this responsibility to introduce consent forms requesting permission to access and extract data from complainants’ and witnesses’ mobile phones. Examples include call data, text messages, application and location data, as well as internet browsing history. Victims expressed concern and campaigners quickly likened the practice to a ‘digital strip search’ of victims, arguing that it would discourage people from coming forward.

In June 2020, the Information Commissioner’s Office published findings in a report that found Police were acting outside of their duty to pursue reasonable lines of inquiry by extracting ‘excessive amounts’ of personal data from mobile phones and that these ‘intrusive demands’ were indeed leading to cases being dropped.

The review highlights that victims are being “asked to give away their phones, a support lifeline” at an early stage when support is most needed and that prosecutors are still asking for a full download of a complainant’s or suspect’s phone.

In response the review reiterates that requests for personal information must be necessary and proportionate and made only in accordance with reasonable lines of inquiry in the case, highlighting “notable differences in the police and CPS’s understanding of requirements and investigative thresholds that need to be met”.

The review repeatedly references the ambition “that by the end of the Parliament no victim of rape will be left without a phone for more than 24 hours” and suggests that in the minority of cases where it is not possible to return a phone within that timeframe the victim should be provided with a replacement.

A race against time?

It is well known that Police resources are overstretched. It is entirely possible that the 24 hour time frame cited will ultimately have an adverse effect on the overall quality of investigations, as Police may not be able to properly consider the case within this short window and will feel less confident about early requests for digital evidence.

It does feel as if the review’s recommendations in respect of defendant’s rights and ensuring fair trials is somewhat of an afterthought. The focus on limiting requests for information from victims and the speed of the digital enquiries is potentially problematic. It could leave Police with a weaker evidential case to present to the CPS in order to bring about a prosecution, or, as we have seen in high profile failed rape cases such as Liam Allan, it could mean that vital exculpatory evidence is missed, leading to potential miscarriages of justice. The Met apologised to Mr Allan in 2018 after the rape case against him was dropped because they had failed to disclose text message evidence from the complainant’s phone that undermined her account.

In cases of serious sexual offences such as rape, initial evidence gathering and first accounts provided by victims and suspects is crucial to how a case develops. The early securing of vital evidence is particularly important when the stakes are so high for all involved in the case. What happens if, say, the police were to return a complainant’s phone only to later realise its relevance to the case? The phone could be lost in that time and with it evidence that may have proved a suspect’s guilt or innocence.

There have been relatively recent developments in the law governing Police bail and justified criticism of the length of time it takes to conclude investigations even where the facts appear relatively clear at an early stage. It is obviously vital to the public perception of justice that investigating Police gain the confidence of victims who report these crimes, and reports of Police withholding victim’s phones for months and even years are undeniably damaging. However, it is equally vital that Police have enough time to conduct their enquiries thoroughly and feel able to effectively secure potentially crucial digital evidence, as the possible impact on both victims and defendants cannot be overstated.

It is generally agreed that there certainly should be a framework governing the timeframes for digital enquiries, although the stated position in the report that victims have their own phones returned within a 24 hour period seems unrealistic and further thought is needed in our view.

Should such a short time limit be too rigidly enforced then a number of unintended consequences may arise; the accuracy and reliability of the extracted data relied upon by the CPS may be open to scrutiny by a defendant at court, crucial evidence may be overlooked and rushed investigations may lead to mistakes that ultimately impact upon proceedings for both parties.

It is imperative in our view that the lessons from earlier failures are learned and that the importance of early securing of evidence and full and robust disclosure is not overlooked in the rush to achieve higher numbers of convictions, because of the inherent risk of serious miscarriages of justice and the long-lasting damage this does to public trust in the system as a whole.

How can we help?

If you are involved in a sexual offence investigation, whether as a victim, suspect or witness, and you would like further information about these proposals, please feel free to contact our Crime Team via our website, by email or by telephone on 0345 241 5305.

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Daniel Martin is a Partner located in London in our Business Crime & Regulation department

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Michael Rimola is a Trainee Solicitor located in Londonin our Trainee Solicitors department

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