Since antiquity, rape, along with murder, arson, and treason have traditionally been capital crimes, meaning they have carried the death sentence. Rape law has always attracted controversy. In the 17th century, Sir Matthew Hale stated rape ‘‘is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent’’
In the present era, evidence suggests that the police are suffering a critical lack of training and resources when it comes to the disclosure and scheduling process in criminal trials. In a report entitled Making It Fair, published in July 2017, the HM Crown Prosecution Service Inspectorate and HM Inspector of Constabulary highlighted that:
“…police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor, while revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare. Prosecutors fail to challenge poor quality schedules and in turn provide little or no input to the police. Neither party is managing sensitive material effectively and prosecutors are failing to manage ongoing disclosure. To compound matters, the auditing process surrounding disclosure decision-making falls far below any acceptable standard of performance. The failure to grip disclosure issues early often leads to chaotic scenes later outside the courtroom, where last minute and often unauthorised disclosure between counsel, unnecessary adjournments and – ultimately – discontinued cases, are common occurrences.”
Lack of understanding around disclosure can lead to the accused being tried, and even convicted of an offence they did not commit. However, because the crime of rape is so emotive, it is difficult to introduce policies and procedures to mitigate the risk of mistakes being made or malicious allegations reaching trial.
Balancing justice in rape prosecutions
Few crimes cause as much controversy as rape. It is a highly politicised crime and there is an abhorrence to any actions that may indicate victim-blaming or placing the complainant on trial.
Two clear examples of this are the controversy around mentioning the victim’s sexual past at trial and commandeering their mobile phone for inspection following an allegation of rape.
The Youth Justice and Criminal Evidence Act 1999, section 41 provides that no evidence of the complainant’s sexual history can be cited nor can questions related to the complainant’s sexual past be asked during cross-examination without the Court’s permission.
In 2016, professional footballer, Ched Evans was found not guilty in a rape retrial (he had already served two and a half years in prison before his conviction was quashed and a retrial was ordered by the Court of Appeal). The case caused a storm of controversy because the Defence introduced new evidence from two men who had previously had sex with the complainant. Section 41(3)(c) provides that the Court can consent to evidence relating to the complainant’s sexual past if “the behaviour of the complainant at the time of, or as part of, the incident complained of is so similar to other behaviour that the similarity cannot reasonably be explained as a coincidence”.
In R v Evans  1 Cr App R 13, the Court of Appeal made clear that admission of sexual history evidence under section 41(3)(c) is rare and the Court must carefully consider the similarity of the behaviour.
Despite the restrictions, a 2015/16 study found that sexual history evidence was introduced in just over one-third of trials in England and Wales. A 2017 paper found that in 65% of sexual offence trials in Scotland, an application to admit sexual history evidence was granted.
On 13 May 2019, the Crown Prosecution Service (CPS) issued a statement on its website relating to the widespread media coverage reporting that complainants in rape cases must hand over their mobile phones or risk having their case dropped. The CPS clarified:
“…for an investigation to proceed and be fair for both complainant and suspect, all reasonable lines of enquiry must be pursued. This is not new and the policy has not changed – mobile devices will not be needed in every case – but when they are, there is explicit guidance that only material relevant to a particular offence may be pursued, to minimise unnecessary intrusion. This applies to all offences and is not restricted to allegations of sexual offending.
It has also been wrongly suggested that phone data will be handed over indiscriminately to lawyers representing the suspect, so that it can be used unfairly to discredit complainants. This is absolutely not the case, and there is clear legal guidance in place to ensure that private information which does not assist the defence or undermine the prosecution is not disclosed to the defence.
Even where material must be disclosed, there are further legal safeguards before it can be used in the course of any trial.”
However, the statement made clear that although a rape allegation case will not be automatically dropped if a complainant refuses to hand over their mobile device, if their refusal precludes the CPS from testing “a reasonable line of enquiry”, they may not be able to proceed with the matter.
The impact of a rape allegation is, with few exceptions, universally focused on the complainant. This is understandable – rape is a heinous violation of the victim’s person and soul. But being accused of rape can also be ruinous to a defendant’s life.
John (not his real name) told the BBC in late 2018 the price he had paid for failures in disclosure on the part of the police after he was accused of rape.
“From the moment my name was in the public domain, my life changed,” he said.
“Some family members and friends stopped talking to me. Some still don’t speak to me even though I was cleared.
“Walking down the street I felt that everyone was talking about me. My mother felt embarrassed to be with me.
“I was very well known in the area where I lived and loved the place. I don’t live there anymore. I had to move because people treated me differently during and after the court case.
“I can’t risk that happening again. I could lose my job if women I work with became aware that I was charged with rape even though I was cleared. The stigma and consequences never leave you.”
The woman who had accused John of raping her had previously made false allegations of rape against other men. He blames the police for the damage wreaked on his life, saying that if the police had investigated the woman accusing him properly and disclosed the fact that she had made false sexual assault allegations against three other men, the case would never have reached Court.
A key piece of evidence that threw significant doubt on John’s accuser’s claims related to her mobile phone use during a period in which she said she was semi-conscious while the rape was occurring. John’s defence lawyer instructed an expert to examine evidence from his accuser’s mobile phone. It showed that during the time she was ‘semi-conscious’, she was active on her mobile, making texts and calls.
However, while John’s mobile phone was taken from him immediately, the complainant’s phone was neither removed or examined for almost four months.
Regardless of the emotive aspects of rape, it is a crime like any other. The accused is innocent until proven guilty, has a right to a defence, and a fair trial. And as Tom Bingham states in his acclaimed book, The Rule of Law:
“…fairness means fairness to both sides, not just one. The procedure followed must give a fair opportunity to the Prosecutor or Claimant to prove his case as also to the Defendant to rebut it”.
In modern rape trials, it seems this ideal has been knocked off course by modern technology. It is time for the Government to bring legislation in line with everyday smartphones and other digital devices used by us all. Only then can we be certain that an accused will receive a fair trial in accordance with the Rule of Law and his human rights.
If you have been accused of a sexual offence, our criminal law team can help. You can contact us at firstname.lastname@example.org.