In a series of interviews during the last few weeks of Alison Saunders’ tenure as Director of Public Prosecutions, much of the media focus was on the issue of collapsed rape trials and serious concerns relating to disclosure.

Indeed, this issue seems to have been the defining one over the past year. Back in June, the Crown Prosecution Service (CPS) published the outcome of its review of rape and serious sexual offences (RASSO) cases where 3,600 cases were looked at to ensure that disclosure was being managed effectively. The CPS states that this additional scrutiny of pre-trial prosecutions was carried out to ensure that prosecutors were satisfied that the police had pursued all reasonable lines of enquiry, and that there was a clear strategy to ensure disclosure was carried out effectively and in a timely manner. 47 prosecutions for rape or serious sexual offences which were stopped in that period were found to have issues with the disclosure of unused material.

The report identified several common themes including:

  • communications evidence such as texts, emails and social media being examined too late in the process;
  • the failure to identify and obtain material such as medical or social services records; and
  • the emergence of new evidence after charge

Despite these steps to review current cases and a revised Code of Crown Prosecutors (see our related blog), the issue of prosecuting rape and serious sexual assault remains in the political spotlight.

Ann Coffey, a Labour MP for Stockport, addressed the House of Commons on 21 November seeking an urgent independent inquiry into the prosecution of rape cases. With a motion entitled “Rape Myths and Juries”, she suggested that juries might not be best placed to deliver justice in such cases because they are likely to believe stereotypes surrounding rape victims which are dominant in society as a whole. She set out a number of issues, including that “rape myths” shift the blame onto the victims for their own rape and can stem from a lack of understanding about what consent is. Coffey argues that due to widespread belief of these “rape myths”, juries are reluctant to convict.

In an FOI request to the CPS, Coffey secured figures which show that, despite an increase in reporting (in 2016-17 the number of rapes reported was 41,186; over the last five years there has been a 150% increase in the number of rape allegations reported), only 32% of prosecutions brought against young men (18-24 years old) resulted in a conviction last year. However, figures for the previous year 2016-2017 put the conviction rate for young men (18-24 year olds) at 27% indicating a 5% increase in conviction rates. These figures lead to headlines such as: “Revealed: less than a third of young men prosecuted for rape are convicted”.

One of the solutions put forward is that judges should hear rape trials alone. Leaving determination to a judge who has a wealth of experience and knowledge in the area and whose role it is to be unbiased and devoid of stereotyping in this way. An outcome of this, it is suggested, is that conviction rates will rise. This is not the first time judge only trials have been proposed (see here in relation to fraud), but such an overhaul in the cornerstone of our judicial system requires serious consideration.

Juries are a fundamental part of our criminal justice system and a cornerstone of our adversarial system. They work effectively because they reflect the myriad views, values and standards of our society. Undoubtedly some jury members may be persuaded by “rape myths” however others will not and by bringing their own life experiences and opinions into the jury deliberations; members of a jury act as a ‘checks and balances’ system for each other to reach a sound decision.

If there are concerns about the perceived low level of rape convictions secured, perhaps scrutiny should be directed towards the police and prosecutorial bodies, not the deliberations of a jury room. The CPS is running on skeletal public funding and overstretched staff (which has led to failures in investigation and prosecution). Another avenue of inquiry might be the CPS’s charging decisions and the pressure they face to prosecute cases without critically assessing whether the case meets the evidential threshold i.e. is there a reasonable prospect of conviction?

The so-called solution of judge only rape trials comes with its own flaws. Where juries can bring fresh perceptions to the process, judges can become ‘case hardened’. Jurors bring a range of insights as opposed to the single and by definition atypical experience of a single judge, and so are more likely to be able to appreciate issues at stake (for defendants and complainants) in the round. Judges are not infallible and the absence of eleven other people addressing oversights and holding the judge to account is dangerous; juries protect the judiciary from accusations of bias.

If the aim of such a review is to have a fairer process for complainants, the answer is not to scrap trial by jury but it must be to focus on an increase in funding to the police and CPS so that they can investigate and prosecute cases properly.