8th August 2018

There has been a House of Commons Justice Committee enquiry into the disclosure of evidence in rape trials, news of which has been played out in the media, mostly signalling outrage that “essential evidence to acquit the defendant” is not, or has not, been provided to the defence.

The Crown Prosecution Service (CPS) is under an obligation to disclose any material to the defence which may either assist or harm any possibility of successful prosecution. Unfortunately in practice this has resulted in huge amounts of the victim’s personal information and data being disclosed to the defence. There has to be a balance between the right of the defendant to a fair trial and the right to a victim not to have her most personal and intimate records routinely disclosed as a matter of course in rape trials. This does not happen in any other form of assault trial.

What this means in practice is that at a very early stage a victim will be asked to sign a consent form allowing for disclosure. This can be for anything for example school records, medical records including¬†any therapy or counselling records, records held by Adult Social Care or Children’s Social Care issues in the care system as a child as well as emails, whatsapp, instagram, facebook etc.

In her recent blog on 25¬† July 2018 Dame Vera Baird together with Baronees Helen Newlove noted the “historic legacy of not believing women who complain of sexual offences and focusing much effort on seeing if she can be discredited”. She also points out that there are “well documented myths and stereotypes” surrounding rape such as women were “asking for it” by wearing so called provocative clothing. The second part of the “twin myths” which she highlights is an erroneous belief that if a woman has been in a sexual relationship and has a previous sexual history, then she is more likely to have consented to sex on this occasion rather than be telling the truth about being raped.

EVAW (End Violence Against Women Coalition) and Rape Crisis have also responded to the consultation describing it as a wasted opportunity noting that “serious questions about how the police and CPS deal with rape and sexual violence are being ignored”. They are also concerned about the attempt to discredit rape victims which is something that happens on a scale in sexual assault cases that is not seen in any other type of assault trial.

It is also worth noting that Nigel Evans MP (Tory) together with Liam Allan, a student recently acquitted of rape following the disclosure of fresh evidence are calling for a “disclosure watchdog”, having started the campaign “innovation of justice”. One of the things they are calling for is for “people who make false allegations (of rape) to be prosecuted.”

While it is obviously very worrying that there have been failures in disclosure of relevant evidence, the danger must be that women will be greatly discouraged by the knowledge that there will be every attempt made to discredit them within these proceedings. Clearly the correct balance has to be struck and it is vital that victims of rape are reassured that they will not be forced to disclose anything that is not strictly relevant to either discredit the prosecution case or assist the defence. Dame Vera in her blog discusses the case of a rape case involving a schoolgirl who was painted as a “lifelong liar” in court based on a past school record that she had forged her mother’s signature when she was in her early teens to get out of a day at school. This cannot be accepted particularly against a backdrop of rising numbers of rape cases being reported and continuing falls in prosecutions.

Blog by Gillie Robson, Family Law Solicitor