The press widely reported on Director of Public Prosecutions Alison Saunders comments in an interview to the Evening Standard (8 August) relating to prosecuting rape cases. Headlines of “Prosecutors told to dig into accused rapist’s past” and “Alleged rapist past put on trial” picked up on comments attributed to Saunders in the Standard such as: “we are looking at how to prosecute certain types of cases, the more difficult ones. They tend to involve drugs or drink and people who know each other”. She apparently developed this by saying, “Some of it will be if you have already been in a relationship, understanding the dynamics of coercive and controlling behaviour and presenting cases in a way that doesn’t just look at the individual incident”.

Tackling violence against women and girls is a priority area for the CPS. Indeed if you look at the stats (CPS Violence Against Woman annual report 2016) sets out that rape, domestic abuse and sexual offences now account for 18.6 per cent of the CPS's total caseload and this figure has been increasing year-on-year. Though compared to (non-rape) sexual offences where the conviction rate is 78% the conviction rate for rape is 57.9%.

When we first read these comments, we questioned whether the DPP was misreported. The suggestion that the defendant’s sexual history must be relevant to “presenting cases in a way that doesn’t just look at the individual incident” appears to be the polar opposite to the approach taken to a complainant’s sexual history, which is caught by s. 41 Youth Justice and Criminal Evidence Act 1999 (“s. 41”).

The introduction of s. 41 was founded on an attempt to protect a complainant from cross-examination on the basis of the ‘twin-myths’, i.e. “that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief” (.R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278C per McLachlin J).

S. 41 operates to restrict evidence of a complainant’s sexual history unless admitted through a specific gateway – in practice, the effect of s. 41 is to make the questioning of a complainant’s sexual history an exceptional course.

As presented in the media, the DPP’s comments would appear to advocate for a position where a defendant would face questioning on their sexual history while being prohibited from questioning the complainant on the same basis. This cannot be right.

Since then Alison Saunders has written a letter to clarify her remarks.

On balance, it would appear that the DPP was articulating a desire for prosecutors to ensure that a full investigation was conducted into the circumstances leading up to the sexual contact between the complainant and the defendant.

Indeed, as reported in the Law Gazette 14 August, Saunders confirmed that where an offence takes place in the context of a relationship, it is appropriate for investigators to look at longer-term patterns of behaviour which may add weight to the prosecution case. She explained that this approach was given a legal basis in relation to domestic abuse when section 76 of the Serious Crime Act came into force in December 2015 (with the offence of controlling and coercive behaviour). (See related blog). Confirmation was given that there is no intention on the part of the Crown Prosecution Service to apply this to all rape cases.

In any event, evidence of the defendant’s sexual history would not be automatically admissible and any application to introduce such evidence would be subject to judicial oversight.

Bringing to justice the perpetrators of sexual offences should be a priority of the police and prosecution. This is an understandable desire given the significant reduction of resources which have led to bare-boned investigations often comprising of little more than the taking of a complainant’s account.

However, this requires proper resourcing and expertise not alarmist headlines.