Attorney General's Office

Solicitor General: sex crime conviction and attrition rates - what are they and what should they be?

Solicitor General Vera Baird QC MP

I am delighted to speak at this 8th annual conference of St Mary's centre. As someone who has been nagging, at least the legal establishment, for twenty years about rape I find it inspiring to be at an event organised by St Mary's, which has been nagging even longer and to see this town hall filled with people dedicated to supporting the needs of those affected by sexual violence.

I want to pay homage to the work of St Mary's. St Mary's was, and remains, a pioneer organisation. It was the first Sexual Assault Referral Centre (SARC - we didn't know that term then) - and Bernie Ryan, the centre manager, and Cath White, the clinical director, and their team of doctors and crisis workers and researchers are not only committed to delivering the best possible service to victims of serious sexual assault, irrespective of age, gender or background but are also committed to sharing their expertise at home and abroad. This is through the training they deliver to forensic doctors and nurses and other partner agencies, their research, and in Cath's case assisting me personally in looking at myths which impact on rape trial outcomes with a view to judicial training and beyond.

The problem we face

Three million women across the UK experience rape, domestic violence, forced marriage, female genital mutilation, human trafficking, prostitution or another form of violence every year. A few facts for us to consider:

• The total annual cost of violence against women is estimated to be £40.1billion per year.
• Violence against women is both a cause and consequence of gender inequality and the Government is committed to tackling gender inequality.
• Crimes of violence against women have a devastating effect on victims, their families and friends who hear about it and see its impact.

Historically, male domination has led to this issue being neglected. This is not a criticism of men but something that does not happen to an individual is not going to be at the top of their agenda. It was the advent of about 100 women MPs in 1997 that put this at the top of the Government's agenda, where it remains.

When this influx of women occurred, there were in the House of Commons, All Party Groups to campaign on issues such as whisky, beer, cider and for every Indian Ocean Island it would be nice to visit. There was nothing about violence against women so the new women set one up, campaigned and made real progress.

Now men in government have understood it and have taken it up. It is as much Alan Johnson as Harriet Harman and I who drive it forward.

Of course it is not just women and girls who are the victims of sexual violence, men and boys suffer too. However, in terms of numbers the vast majority of victims are female.

Together We Can End Violence against Women and Girls: A Strategy

In 2009, after a decade of work on rape, domestic violence and other issues sometimes compartmentalised, and following one of the largest public consultations ever, we launched our Strategy: Together We Can End Violence against Women and Girls (VAWG). This represents the government's holistic approach to combating all forms of violence against women and girls and supporting its victims across the three areas of prevention, provision and protection.

Whilst our ideal remains to prevent all VAWG, most relevant today is protection which includes delivering an effective criminal justice system, our priorities being to:

• Provide end-to-end support for all victims from report to court;
• Bring more offenders to justice by improving reporting and conviction rates; and
• Rehabilitate offenders and/or manage the continuing risk they may present to women and girls.

A number of detailed reviews were done as part of the strategy. They include the Health Taskforce Professor Sir George Alberti, from whom you have already heard. I look forward to the results and predict that he will help to improve the quality of Forensic Medical Examiner (FME) provision, perhaps to the high standard of St Mary's and will generally recommend what more the NHS can do.

Another report commissioned as part of the VAWG Strategy was that of Victims' Champion Sara Payne, entitled 'Rape - The Victim Experience'.

Her findings suggest, not surprisingly, that a conviction is the ultimate goal in every case and at any price. Women wanted:
To be believed

• To be treated with dignity
• To be reassured that it was not their fault
• To feel safe and comforted
• Not to feel like a 'victim'
• To have services that support them and their family
• To feel in control
• To be able to make informed choices

She accepts that those needs may be as important as a conviction in terms of aiding a victim's recovery.

It is surely no coincidence that these priorities so closely mirror what organisations like St Mary's already set out to achieve. But these are not alternatives. Conviction or no conviction women are entitled to have the support to recover optimally and we have a duty to provide the means for that as a priority. Clearly a conviction is more likely if she is sustained and supported.

We still have a job to do in the provision of support. Firstly, not all regions have a SARC. The Department of Health's National Support Team is tackling this by helping areas to roll out SARCs and ensure the delivery model is the best. We know that there are challenges to delivering effectively on the ground across agencies, some of whom have come late to the party.
This has to dovetail with an effective criminal justice response to those victims who report rape or sexual abuse is sometimes inadequate. We were taken aback by the Reid and Worboys cases (Worboys was the taxi driver case), which show a need to address attitudes which surround rape.

In the Worboys case, many of the women had had a drink at the time and so were under-valued, seen as likely to be poor and unsympathetic witnesses. Of course, he gave them a drink. We make too little of the fact that much rape is serial offending and serial rapists target women who have had a drink or to whom they can give drink or women with vulnerabilities, particularly learning disabilities and mental health issues, all of which they know will cause the criminal justice system, if not at policy level, at ground level, to think that they will not carry the day in court and so perhaps the statutory authorities, with low expectation of a good outcome, will not drive the case forward strongly enough.

The problem was not public confidence in the way in which rape complaints are handled but the response of public authorities.

There is a truism about people with vulnerabilities which have historically been seen as obstacles to conviction, in that the authorities are less likely to pursue their cases which they expect to end in an acquittal and benevolently do not want to put someone through the process. That means that such people get a lower standard of justice and soon know that and don't report - meaning that we have a whole sector of society not only unsupported but unprotected against this crime.

None of the support seen as essential in Sara's report will remedy that. There has to be a flexible and responsive system to deliver criminal justice for society.

Baroness Stern's review

Although a series of measures to improve the investigation and prosecution of rape were announced by the Home Office in April last year, after Worboys, we concluded that we needed to complement this work by getting someone to drill down to find what further we can do to ensure the effective handing of rape.

As I mentioned we consulted on violence against women last summer but we received most evidence about domestic violence and less about rape. So we decided we needed more evidence and asked Baroness Stern, an independent cross-bench peer, to hold an inquiry into rape and to:-

• Examine the response of the public authorities to rape complaints and examine how more victims can be encouraged to report;
• Explore ways in which the attrition rate in criminal cases can be reduced and, how to fairly increase the conviction rate;
• Identify how to increase victim and witness satisfaction and confidence in the CJS in addressing rape; and
• Explore public and professional attitudes to rape and how they impact on outcomes.

Baroness Stern will publish her report in March. She has visited many parts of England and Wales and consulted widely and I look forward to her findings. She has taken on that rape is often a serial offence and we must get people very well supported so that they can testify also for the protection of others

The criminal justice system, conviction rates and attrition

Prosecution of serious sexual offences is difficult. Typically, there is little, if any, direct supporting evidence of what has occurred. The prosecution must first establish that sexual activity has taken place. However, as sexual activity is lawful in normal circumstances, they must also address what was in the minds of the complainant and the suspect to show that there was no agreement, at that time, to have sex. The prosecution must also prove that the suspect did not have a reasonable belief in the complainant's agreement. Where they have mental health issues or learning disability or have consumed alcohol or taken drugs it will be important to explore whether complainants had the capacity to consent.

These are complex issues, which is why it is so important for the police and CPS to work jointly, from the start of the investigation, to ensure that every piece of evidence, no matter how apparently insignificant, is gathered, with a view to building an effective case.
Cases are not winnable without the support or people from the third sector which has, in the past, been patchily funded and insecure and we are looking at an improved commissioning process that can better sustain this important sector.

Attrition is the process by which rape cases drop out of the legal system and therefore do not result in a criminal conviction. A criminal conviction is just that. There are two ways of presenting conviction rates. The first is as a proportion of all reported cases. The second is as a proportion of all prosecuted cases.

In the last few years we have all seen conviction rates as low as 6% of reported cases, often coupled with assertions that they have fallen from 25% in the eighties. That points to the problems with such figures.

It is only since 1991 that it has been an offence for a man to rape his wife and prior to that the only rapes that reported were stranger rapes, quite rare since partners however tenuous would follow the rule for husbands and wives and not consider that rape could be committed.

After a decade of trying to encourage reporting we get all kinds reported and the non-stranger rapes which are the massive majority are more difficult.

Where convictions are presented as a proportion of all cases prosecuted by the CPS the current figure is 58%.

My concern about the use of the 6% figure is the effect it has on public confidence and particularly the confidence of potential or actual rape victims. Few other crimes are counted this way.

It relies on reports of rape and outcomes from court recorded in the same year. In fact many rape cases do not begin and end in the same reporting year.

It is also dependant on the accurate recording of data by all police forces and courts across the length and breadth of England and Wales. Because this method of measurement is not used for other offences, it is not user friendly for the police and it is impossible to carry out a comparison with any other crime.

Nor does it distinguish between reasons why cases drop out of the system. Sometimes reports are by third parties, a friend, relative or partner of the alleged complainant. When the police speak to the person directly they find there has been a misunderstanding, either no rape or perhaps some lesser offence actually occurred. Nor does this figure take into account the fact that some victims, for entirely valid reasons, simply do not wish to proceed with a criminal investigation or prosecution. And it is manipulable, in that if a crime resembles those which don't get a conviction it is easier to drop it at the start from the statistics and trigger the circular process I have already outlined.

This is an issue to consider as we try to enhance public confidence. Perhaps we should count more logically.

The Fawcett Commission report on women and the criminal justice system found that about a third of women offenders have been raped, higher than in the general population. Experiences of violence and abuse can be a key factor in women's pathways to crime; if the issue is not addressed early enough by health services, we can do little to support women to stop offending.

We doubly wrong those women we haven't supported to make early complaint and then go on to imprison when their trauma drives them into chaotic lifestyles and crime. So, there is a lot to consider about relying on the 6% figure.

A theme underlying your conference is "Is it possible to have a system that protects the rights of the defendant and protects the rights of the victims?"

The short answer to that must be 'yes'.

Lets look in headline at some of the things we have done.
One of the earliest was to ban previous sexual history as evidence of consent in the Youth Justice and Criminal Evidence Act 1999. It had been used to put allegations out of the blue to undermine her confidence to testify and humiliate her. It had scant relevance to consent. I was once in the Court of Appeal when they said that it was self-evident that if a woman had had sex with a man before, she was more likely to have consented on this occasion. Actually, it may be much less likely, for a whole raft of reasons, and the remark made the point that previous sexual history evidence was misunderstood. I do not think that excluding irrelevant prejudicial material is an assault on the defendants rights. It remains admissible for other reasons if it is fair to put it in.

Next we changed the need for consent to that for free agreement, a more modern concept and brought in the test of reasonableness to qualify the defence of belief in consent. Prior to that, a jury could accept that a woman had been forced to have sex without her consent and been traumatised by it. But if the defendant asserted, however unreasonably that somehow he thought she was consenting, that statement and the high standard of proof would require the jury to give him the benefit of the doubt. I think that was obliging juries to behave counter-intuitively because of the rules and it was right that we put in place the test of whether his alleged belief was reasonable. And there is now something to put in interrogation by police who were unable to do more with an assertion of belief in consent but now can question whether anyone would regard such a belief as reasonable and perhaps make the defendant realise that the sensible course is to acknowledge guilt.
That too seems to me to have redressed an imbalance and ended an abuse not to have undermined fair rights for a defendant.

As part of our efforts to reduce attrition let me highlight another piece of work in the Criminal Justice System; an attempt to neutralise myths that can interfere with jury deliberations in trials.
There is a myth that if someone is raped they will complain of it immediately. If someone does not, the defence will often suggest that she was happy with sex at the time but something must have made her change her mind later.

In other words, the defence say that a late complaint is a false complaint. Of course we know that it is common for women who have been raped not to report the matter at once because they are traumatised, full of guilt and shame, questioning their own judgement about being with the man in the first place.

In a case called R v JD, the Court of Appeal said that trial judges should say in that kind of case that although a late complaint may be untrue, often people do complain late because of those factors. It can redress the otherwise unfair assumption a jury might make.

We got a panel of experts to work out all the myths they believe may have an effect and then Treasury Counsel drafted possible directions for judges to use to bust these myths. It is entirely up to the judges but they may feel able to take on some or all of these myth busting directions.

A further example is that rape victims will always suffer physical injury - sexual injury. Forensic medical examiners can explain that absence of injury is not necessarily inconsistent with an allegation of rape. Sometimes they do and sometimes they don't, leaving the defence to comment that rape was unlikely because the evidence is that she was not injured. FMEs need not just to put their findings of no injury into a statement but to make clear that they are not evidence either way. Otherwise it is open to defendants not to require the attendance of the doctor, to read the statement to the jury, and comment in closing speech to suggest that there would have been injury if the sex had been forced.

The issue of drink has been taken on by the Court of Appeal in the case of Bree. Here they made clear that a woman being too drunk to remember saying no should not have her case withdrawn from the jury by the judge. The proper issue is whether she was so drunk that she was incapable of consenting and - as the court said - that stage can be reached long before unconsciousness.
If she is incapable of consenting she cannot consent and so it is rape and the issue of saying no or not doing so is not the point. None of these changes, some of them brought about in sound case law by a judiciary which, these days, really does "get" this issue, have only brought commonsense and fairness to bear in trials with no detriment to the fair rights of the defendant.

Let me mention the Crown Prosecution Service in closing, not least because you had the admirable Director of Public Prosecutions, Keir Starmer, here yesterday. The CPS is a pioneer in tackling violence against women. It is, we believe, the first public prosecution service to integrate all forms of violence against women under the UN definition into a strategy and action plan which relates work in this area to a wider gender equality agenda.

The CPS Violence against Women strategy and action plan is aimed at integrating, coordinating and improving prosecutions and support for victims in a range of crimes of violence against women.

The DPP, together with the CPS Chief Executive, is visiting every CPS Area focusing on Violence against Women. I suspect that they are treading where Baroness Stern will soon follow in that I suspect that we now have the right ideas at policy level but need to ensure their implementation in every place all the time.

So the government is committed to tackling violence against women. This is an important conference. I am so pleased that many of you here today are in positions where you will be able to take up this challenge and directly influence for the better. I would like to commend you all on your efforts so far. Let us go forward together with determination with the most ambitious possible aim, of ending the abuse of the vulnerable and stopping violence against women programmes to ensure that we contribute to making the community a safer place for all.