Written evidence from Centre for Women’s Justice
Introduction
Centre for Women’s Justice (CWJ) is a lawyer-led charity focused on challenging failings and discrimination against women in the criminal justice system. We carry out strategic litigation and work with frontline women’s sector organisations to challenge police and prosecution failings around violence against women and girls (VAWG). As such we have gathered evidence which provides the basis for our recommendations for changes to improve the experience of victims.[1] This submission covers the following areas in which CWJ has relevant expertise:
These matters are not currently addressed in the Draft Bill, but we believe they are so important that we invite the committee to consider their inclusion.
It is widely understood that the criminal justice system is not delivering for victims in rape and other sexual offences cases. One important way to address this is for sexual violence victims to receive independent legal advice, and in some instances legal representation, alongside ISVA support. This is necessary because of difficulties in the way the criminal justice system operates for victims in RASSO cases, and because of the need to build confidence for victims in these cases and to improve their experience of the process. The Bill should be amended to introduce a right to independent legal advice and, where necessary, representation for rape victims.
From 2019 to 2021 we received 689 legal enquiries via ISVA services and dealt with many further enquiries from women directly. We have received enquiries via 36 ISVA services across the country. We have no doubt that there is a huge unmet need for legal advice amongst rape victims. A recent submission by CWJ to the Ministry of Justice was informed by our extensive experience in dealing with the legal issues raised by survivors of sexual violence. Its key points include the following:
We see a large number of disproportionate requests for third party disclosure in rape investigations. Police should only make requests for third party disclosure where there is a reasonable line of enquiry. The Court of Appeal established in R v Alibhai[3] that this means “it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test”.
Blanket requests, not founded on any specific reason arising from the facts of the individual case, do not meet this test but are nonetheless frequently made in our experience. In many cases police request a range of highly sensitive, personal third party materials including ISVA notes and ISVA counselling records, GP and other health records, therapy records, social services records and education records. Often officers state that materials are requested by, or required by, the Crown Prosecution Service (CPS).
The mere assertion by a suspect, without more, that the victim’s account of a rape is untrue and therefore that she is lying, is not a sufficient basis to access her personal records for a credibility vetting. If this were so, then the same would apply in a vast range of other crime types, and also to the suspect’s own personal records in such a case.
However, most of the women we support feel that if they refuse to consent to police requests they will be treated as having something to hide. Sometimes they are told by the police that if they do not provide access to records their case cannot be forwarded to the CPS or will be rejected by the CPS.[4] For some women, extensive requests for third party disclosure present such a deterrent that they disengage from the criminal justice process altogether.[5] The primary concern for many victims is that their private records may be put in the hands of the defendant.
When ‘fishing expeditions’ take place, sometimes incidents are uncovered which are entirely unrelated to the rape but show the victim in a bad light. For example, in one of our cases a request for university records revealed that a student was accused of cheating in an exam when she was caught looking at her phone. This was given as a reason for no further action (NFA) being taken in the case, despite the fact that to use this information the defence would have to surmount the hurdle of a non-defendant bad character application.
The result of such an approach is that any woman who breaks rules, such as cheating in an exam, can potentially be raped with impunity (in those common situations where there is no independent evidence to prove the rape). If such cases were prosecuted by the CPS, and the admissibility of the exam incident was considered by a court, the injustice may not be as great. However, in practice such disclosures often lead to NFA decisions, and there is no opportunity to test the admissibility of the information in the third party records, or the jury’s view of her account of the rape.
The decision whether to accede to an inappropriate disclosure request should not rest on the shoulders of victims, many of whom are vulnerable and traumatised. Rather it is incumbent on the criminal justice system to apply the law correctly and not to make inappropriate disclosure requests in the first place. This would also save resources for the police and CPS, and speed up rape investigations. The Bill provides an opportunity to put safeguards in place to address this issue at a national level.
Further information is available in CWJ’s 2021 submission on third party materials to the CPS and National Police Chiefs’ Council.
The Bill offers an opportunity to introduce safeguards against the inappropriate disclosure of therapy records in rape investigations.
A range of governmental reviews and statistics indicate that the number of reports of rape to the police has risen sharply, to over 60,000 per year, but only a tiny fraction of cases reported are charged, in the region of 3%. The tiny number reaching trial is partly due to police and CPS deciding that there is insufficient evidence to prosecute, and partly because victims withdraw due to the extreme stress of the process and repeat invasion into their privacy with a range of disclosure requests.
Tens of thousands of victims who need therapy in order to cope with the aftermath of a rape feel reluctant to access therapy or to open up freely within therapy, for fear of disclosure of their records to the accused. They fear this because they hear from therapists, support workers, advisers and the police that their therapy notes can be subject to disclosure. This would be concerning enough if investigations were concluded within several months, but it is not uncommon for a rape investigation to take a year, two years or even longer. The current situation also deters those who have engaged in therapy from reporting rape to the police.
Victims’ fear of disclosure of their therapy records does not generally arise from a desire to hide material which may undermine the prosecution case or assist the defence. Therapy records contain deeply personal material, both related and unrelated to the rape. Most people would not feel comfortable sharing the contents of their therapy sessions with their nearest and dearest, let alone a person who has abused them.
Therapy records obtained by the police as relevant material may not be disclosed to the defence if the prosecution consider that they do not meet the test for disclosure, or they may be disclosed with redactions. However, this fact does not assuage the concerns of victims, as they have no idea what may or may not be disclosed to the defendant. They cannot have any confidence that the disclosure test will be applied correctly or rigorously with their privacy in mind. Some victims may not understand the intricacies of the process but will be deterred from therapy, as they are aware that therapy records are regularly requested by the police.
This could be addressed by introducing safeguards through the Bill, to restrict access to therapy records on the grounds that confidentiality is inherent to the therapeutic process, similar to the approach to legal professional privilege. This is clearly in the public interest because of the wider ramifications for the mental health and wellbeing of all victims.
Over the past thirty years CWJ’s director, Harriet Wistrich, has been at the forefront of challenging convictions of women who have killed their abusive partner while subject to coercive control and other forms of domestic abuse. CWJ recently undertook a major piece of research considering the barriers to justice for women who kill their abuser.[6] Although the focus of that research is on the small number of women who kill, it also sheds light on the criminal justice system’s ability to deliver justice more widely for those who offend due to their experience of abuse. Through our legal advice and casework service, we also regularly receive referrals from women facing prosecution for a wide range of alleged offending resulting from their experience of domestic abuse and other forms of VAWG and exploitation.
Nearly 60% of women in prison and under community supervision in England and Wales are victims of domestic abuse. Our recently published Double Standard report sets out how women’s offending is often directly linked to their own experience of domestic abuse, and how victims can be unfairly criminalised in a wide variety of ways. This is also reflected in cases referred to our legal advice team, and in the work of Justice for Women and Harriet Wistrich over many years.
The Victims’ Bill does not address the deficiencies in law and practice that can lead to the unjust criminalisation of victims of domestic abuse and other forms of VAWG and exploitation. This is a significant gap which could be addressed by:
a) Adding new statutory defences to the Bill to provide effective defences for those whose alleged offending results from their experience of domestic abuse;
b) Adding reference within the Bill to a further key principle for the Code of Practice – to ensure victims are protected from unjust criminalisation;
These measures would protect victims and help to stimulate work by central government and local agencies to implement reforms throughout the criminal justice process in order to achieve the following outcomes:
This would also encourage disaggregated data collection, publication and analysis to improve understanding of the criminalisation of women who are victims of domestic abuse and other forms of VAWG, including intersectional discrimination experienced by Black, Asian, minoritised and migrant women.
Further information and case studies are set out in our Double Standard report and in our submission to the government’s Victims’ Bill consultation.
We are supporting a campaign brought by our client, ‘Daisy[7]’, to introduce legislation which recognises children born of rape as ‘secondary victims’ of crime and affords them rights for the first time under the Victims’ Code.
Affording ‘rape-conceived’ persons this status in the Victims’ Bill would help counter the dearth of recognition and support currently available for children (and adults) who are born as a result of rape, for whom such a discovery can be profoundly traumatic. In addition, affording individuals born of rape their own statutory right to pursue a criminal complaint, if they wish to do so – will significantly improve the prospect of historic rape/child sexual abuse offences being recorded and investigated. It may even result in prosecutions being brought – where appropriate – in cases where the pregnancy itself is/was compelling evidence of the crime.
We agree with Centre for Social Justice that formally recognising children conceived in rape as victims of crime is a vital step in improving the state’s response to child sexual abuse. It has the potential to achieve real practical, as well as symbolic, change. If rape-conceived persons had a clear statutory right to a make a complaint to the police in relation to the crime – and (accordingly) access to the rights enshrined within the Victims’ Code – it is hoped that this would also lead to improved training and guidance for police and prosecutors on the ground, better equipping them to consider evidence-based prosecutions in cases where rape-induced pregnancies come to light.
We propose as a minimum that the Victims’ Bill should be amended to introduce clauses to the effect:
a) That persons ‘conceived by’ (or ‘born as a result of’) rape are henceforth to be recognised as victims, or ‘secondary’ victims, of crime;
b) That, as such, they are entitled to the rights set out in the Victims’ Code; and
c) That statutory authorities have a duty to ensure appropriate services are available that meet the support needs of (i) women who fall pregnant following rape, and (ii) children/adults who are affected by the discovery that they have been born in rape.
Further information is set out in our submission to the government’s Victims’ Bill consultation.
We strongly support the proposal to place the Victim’s Code into primary legislation. A key problem is the Code’s lack of teeth which means that in practice many of its provisions are simply ignored. We also strongly support an oversight and enforcement mechanism which monitors and maintains standards, without relying on victims to raise complaints.
The VRR scheme provides that when a decision to offer no evidence is made by a prosecutor, this does not trigger a right to request VRR until after Crown has formally offered no evidence. If the VRR is then upheld, there is nothing that can be done to re-instate the proceedings as the defendant has been formally acquitted and the double jeopardy rule applies.
In cases where a decision to offer no evidence is made some time in advance of trial, especially now that trials are hugely delayed due to the court backlog, there is time to provide a VRR prior to the CPS formally offering no evidence, so that justice can be done in those cases where the VRR is upheld.
The VRR process needs to be adapted to enable the VRR to take place prior to the CPS formally offering no evidence, where the timing allows (if necessary on an expedited basis). Two case examples included in our submission to the government’s Victims’ Bill consultation (pp. 13 and 14) illustrate the importance of making this change.
Centre for Women’s Justice
10 June 2022
[1] We use the term ‘victim’ as that is the term used by most criminal justice and other official agencies, however the term ‘survivor’ is preferred by women’s sector organisations.
[2] See R(TB) v CPS and South Staffordshire Healthcare Trust [2006] EWHC 1645 (Admin)
[3] R v Alibhai and others [2004] EWCA Crim 681
[4] Also reported by officers interviewed for the evaluation of the Northumbria pilot Sexual Violence Complainant’s Advocates Scheme published December 2020, see page 22 final para, pages 47-48, 60-61: https://needisclear.files.wordpress.com/2020/11/svca-evaluation-final-report-1.pdf
[5] Also confirmed in the Northumbria pilot evaluation report
[6] Centre for Women’s Justice (2021) Women who kill: how the state criminalises women we might otherwise be burying
[7] Daisy will not be using her full name in any campaign material, so as to avoid any risk that her birth mother (who, as a victim of rape, is entitled to lifelong anonymity) is not publicly identified.