Balancing justice for rape victims and those accused
Rape is a vile crime which can do massive damage to the lives of victims:
To make a knowingly false accusation of rape is also a vile crime which can also do massive damage to the life both of the immediate victim, the person falsely accused, and to the indirect victims, which can often include genuine rape victims whose truthful complaints are taken less seriously as a result.
There are also instances where both the accuser and the person in the dock are innocent victims. Most often this happens when through mistaken identity the wrong person is accidentally accused of a real rape. DNA evidence and other improvements in forensic technology has made such cases much rarer, but the possibility for mistakes is still there.
The prosecutor's dilemma
There is no way to construct a criminal justice system which will not sometimes fail all these types of victim. It is difficult to increase the chances of convicting genuine rapists without increasing the risk of ruining the lives of some innocent people through wrong convictions: it is equally difficult to take measures to avoid convicting the innocent without the risk that some guilty individuals will also get away with their crime. This is not an argument for doing nothing: it is an argument for proceeding with great care.
The high profile collapse of two rape trials last month, and subsequent review of about 30 rape prosecutions threw this problem into stark relief.
I may be slightly biased because the prosecuting counsel concerned is an old friend - I knew Jerry Hayes both when he was chairman of Eastern Area YCs, a post in which I followed him a few years later, and when he was MP for Harlow. But I think that the innocent young man who had been wrongly accused in the first of those cases was most fortunate that the prosecutor was an honourable man with the wiser judgement to see that his job was to administer justice rather than to get as many convictions as possible.
But this month we learn that the parole board is proposing to release John Warboys, the so-called "Black Cab rapist," of whom we can be as certain as is ever practically possible that he really was guilty of rape.
Warboys had been given an indeterminate sentence in 2009: this was a device introduced by the last Labour government which was supposed to enable very long sentences for the worst perpetrators, but which was ruled unlawful by the European Court of Human Rights (ECHR) because it was being used far too often for people who had not done anything serious enough to justify banging them up for the rest of their lives. Unfortunately the fallout from this ruling is now starting to mean that people who there really was a good case for locking up for a very long time to protect the public are starting to be released.
(In case anyone reading this is not aware of the distinction, there are two European Courts, one which is part of the EU and which the UK is leaving because of Brexit and one which isn't and we're not.
The European Court of Justice (ECJ) is part of the EU and the writ of the ECJ will cease to run in Britain when the transitional period of exit from the European Union is completed. The ECHR is part of the Council of Europe which Britain is not leaving. This is the court which has caused the sentences of thousands of convicted criminals to come under review. In many cases they may well have been right to do so, but others - as with the case of Warboys - will cause reasonable people grave concern. )
So this is the challenge:
How on earth do we get as close as possible to a system which locks up guilty people who really are a threat to women and vulnerable people, and keeps them behind bars until they are no longer a threat, without doing the same thing to innocent people?
Is the present system biased?
Many people are convinced that the present system is loaded in favour of the rapist and against the victims of rape. A Home office study published in 2005, Number 293, is often quoted as having found that only 4% of rape allegations are false. I'll come back to that 4% figure, but this study did indeed argue that although false allegations do exist they were much less common than many police officers and officials in the justice system then believed. The study also noted that the proportion of reported rape allegations leading to a successful prosecution was a little over 5%. (It is still in the same area.) Hence the argument runs that about one woman in 25 making a rape allegation is lying but only about one man in twenty accused of rape is convicted.
You don't have to be certain that the 4% estimate is reliable to recognise that a conviction rate of 5% has alarming implications. Even if you believe that eight out of ten rape allegations are false - and to the best of my knowledge nobody has ever made a credible argument that the proportion is anywhere remotely that high - this would still imply that three quarters of rapists get away with it.
This is a strong argument, but even before the events of the past few weeks there were also many people who believe that the attempt to treat rape victims in a more humane manner and to address the low conviction rate has swung the pendulum too far in the other direction, creating a de facto presumption of guilt rather than innocence and a real danger of convicting innocent people.
No easy answer
There is no easy answer to the question of how society can protect people from being raped and get justice for victims without ruining the lives of those wrongly accused. How difficult this is to get right is illustrated only too clearly by the case of footballer Ched Evans whose conviction for rape was subsequently quashed.
There was once a time when it was a regular tactic of defence barristers in rape cases to raise the past sexual history of the accuser in a manner which all too often effectively put the victim on trial.
It is right that this is no longer usually permitted
It is also a good thing that accusers in rape and sexual assault cases usually have anonymity to provide them with some protection from the humiliation which is often associated with this crime.
Indeed, what happened to the female witness in the Ched Evans case demonstrate that anonymity for witnesses in rape trials can be necessary even if the accused is found innocent. If press reports are accurate the woman in the Ched Evans case has said all along that she does not remember the key events of the night in question, never directly accused Evans or the other footballer involved of raping her and, some reports suggest, originally went to police to report a missing handbag.
There is a clause in the rules which normally ban introducing evidence about the sexual history of a witness in a rape case, which permits an exception in special circumstances. The appeal court made a controversial ruling that those special circumstances applied and that exception could be used in the Evans case, as did the subsequent retrial.
By all accounts this was an immensely difficult decision and I understand the viewpoint of those who fear that it might set a precedent which undermines this important rule. But I can also see why the Appeal Court and the retrial jury did not regard the original conviction as safe.
I am not going to try to second-guess the courts by pretending that I know of a perfect way they could have dealt with the Evans case, I refer to it only to illustrate how difficult it is to run a justice system which is fair to both accused and to victims.
Incidentally it is not just the criminal justice system which has a problem with this issue but society.
Between his release from prison after his initial conviction, and his being acquitted at the retrial after that conviction was quashed, Evans was the target for a largely successful campaign to stop him ever being employed as a footballer again from people who for various reasons did not consider that his prison sentence was sufficient punishment. Effectively a self-appointed lynch mob took it on themselves to wreck the employment chances and prospects of rehabilitation of someone who had served his punishment for what turned out to be an unsafe conviction and who was eventually cleared.
Meanwhile the woman in the case, although the people doing this were of course breaking the law, suffered a campaign of harassment on social media and had to change her identity.
There is much controversy over this difficult case but there should be two things that everyone can agree with: first that the campaign of harassment against the woman involved was wrong, and secondly that the case illustrates that there are no easy answers to the questions of how we deal fairly with sexual crimes.
How reliable is the 4% figure?
I referred earlier to Home Office Research study Number 293 of 2005, and how this study is often quoted as having found that only 4% of rape allegations are false. That way of describing their finding implies a much greater degree of certainty to this finding than the authors of the report actually claimed. What they actually wrote is that
"Nine per cent of reported cases were designated false, with a high proportion of these involving 16- to 25-year-olds. However, closer analysis of this category applying Home Office counting rules reduces this to three per cent. Even the higher figure is considerably lower than the extent of false reporting estimated by police officers interviewed in this study."
These comments were made on the basis of a detailed study of about two and a half thousand reported rape cases in three geographical areas which had a slightly above average rate of rape convictions (about 8% compared to a national average of a little over 5%. Of the 2186 reported cases which could be categories, police classed 216 as false allegations, which represents about 9% of the 22,884 cases in the study which it was possible to classify. Those cases, incidentally, represent about a third of those which the police classed as "no crime."
The authors of the study had clearly done a lot of detailed work, but to try to form a view about the proportion of rape allegations which are false they had to make a huge raft of assumptions. None of those assumptions struck me as unreasonable and they may very well be right, but equally, a different study making alternative and also defensible assumptions might have concluded that 20% of rape allegations are false.
I think most fair-minded and intelligent people reading the study would conclude that
1) The authors are almost certainly right that the majority of rape allegations are genuine
2) The authors were probably right that there were at that time a significant number of people in the police and criminal justice system who overestimated the proportion of false allegations of rape.
(However those attitudes appear to have changed significantly and this is probably much less true in 2018 than it was in 2005.)
3) The authors recognised that false allegations of rape do happen and there is no reasonable doubt that they were correct about that.
4) Nobody knows for certain what the real proportion of false allegations is, but the overall proportion is irrelevant to any given case anyway. Each individual case has to be judged on the evidence in that case without pre-judging the evidence from the accused or the accuser and witnesses.
CONCLUSIONS
The only way to treat both the accused and accusers or witnesses fairly is to take seriously the possibility that they may be telling the truth until and unless it is conclusively proved otherwise.
The more vile the alleged offence, the more important it is that the accused is treated as if innocent until proved guilty - but that does not mean ignoring what the accuser has to say.
DNA testing, CCTV and other forensic advances may solve crimes which might otherwise have been insoluble, but they will not remove the need for old-fashioned police work.
Police, prosecuting and defence lawyers, judges and juries all need to be better advised about advances in science and the meaning of statistics and the provision of a series of books to advise juries about science (including statistics) is a big step forward.
The duty of the prosecution to disclose evidence to the defence in a timely way is an essential safeguard against wrongful conviction and there is evidence of the need for a full review of whether this is happening properly.
It is a recipe for massive injustice if people use social media to "take the law into their own hands" whether by persecuting witnesses who they believe to have brought false charges or defendants who they believe have not been sufficiently punished. Britain may need stronger laws against such social media lynch mobs and it is the duty of service providers running social media platforms to help prevent those platforms being used in this way.
To make a knowingly false accusation of rape is also a vile crime which can also do massive damage to the life both of the immediate victim, the person falsely accused, and to the indirect victims, which can often include genuine rape victims whose truthful complaints are taken less seriously as a result.
There are also instances where both the accuser and the person in the dock are innocent victims. Most often this happens when through mistaken identity the wrong person is accidentally accused of a real rape. DNA evidence and other improvements in forensic technology has made such cases much rarer, but the possibility for mistakes is still there.
The prosecutor's dilemma
There is no way to construct a criminal justice system which will not sometimes fail all these types of victim. It is difficult to increase the chances of convicting genuine rapists without increasing the risk of ruining the lives of some innocent people through wrong convictions: it is equally difficult to take measures to avoid convicting the innocent without the risk that some guilty individuals will also get away with their crime. This is not an argument for doing nothing: it is an argument for proceeding with great care.
The high profile collapse of two rape trials last month, and subsequent review of about 30 rape prosecutions threw this problem into stark relief.
I may be slightly biased because the prosecuting counsel concerned is an old friend - I knew Jerry Hayes both when he was chairman of Eastern Area YCs, a post in which I followed him a few years later, and when he was MP for Harlow. But I think that the innocent young man who had been wrongly accused in the first of those cases was most fortunate that the prosecutor was an honourable man with the wiser judgement to see that his job was to administer justice rather than to get as many convictions as possible.
But this month we learn that the parole board is proposing to release John Warboys, the so-called "Black Cab rapist," of whom we can be as certain as is ever practically possible that he really was guilty of rape.
Warboys had been given an indeterminate sentence in 2009: this was a device introduced by the last Labour government which was supposed to enable very long sentences for the worst perpetrators, but which was ruled unlawful by the European Court of Human Rights (ECHR) because it was being used far too often for people who had not done anything serious enough to justify banging them up for the rest of their lives. Unfortunately the fallout from this ruling is now starting to mean that people who there really was a good case for locking up for a very long time to protect the public are starting to be released.
(In case anyone reading this is not aware of the distinction, there are two European Courts, one which is part of the EU and which the UK is leaving because of Brexit and one which isn't and we're not.
The European Court of Justice (ECJ) is part of the EU and the writ of the ECJ will cease to run in Britain when the transitional period of exit from the European Union is completed. The ECHR is part of the Council of Europe which Britain is not leaving. This is the court which has caused the sentences of thousands of convicted criminals to come under review. In many cases they may well have been right to do so, but others - as with the case of Warboys - will cause reasonable people grave concern. )
So this is the challenge:
How on earth do we get as close as possible to a system which locks up guilty people who really are a threat to women and vulnerable people, and keeps them behind bars until they are no longer a threat, without doing the same thing to innocent people?
Is the present system biased?
Many people are convinced that the present system is loaded in favour of the rapist and against the victims of rape. A Home office study published in 2005, Number 293, is often quoted as having found that only 4% of rape allegations are false. I'll come back to that 4% figure, but this study did indeed argue that although false allegations do exist they were much less common than many police officers and officials in the justice system then believed. The study also noted that the proportion of reported rape allegations leading to a successful prosecution was a little over 5%. (It is still in the same area.) Hence the argument runs that about one woman in 25 making a rape allegation is lying but only about one man in twenty accused of rape is convicted.
You don't have to be certain that the 4% estimate is reliable to recognise that a conviction rate of 5% has alarming implications. Even if you believe that eight out of ten rape allegations are false - and to the best of my knowledge nobody has ever made a credible argument that the proportion is anywhere remotely that high - this would still imply that three quarters of rapists get away with it.
This is a strong argument, but even before the events of the past few weeks there were also many people who believe that the attempt to treat rape victims in a more humane manner and to address the low conviction rate has swung the pendulum too far in the other direction, creating a de facto presumption of guilt rather than innocence and a real danger of convicting innocent people.
No easy answer
There is no easy answer to the question of how society can protect people from being raped and get justice for victims without ruining the lives of those wrongly accused. How difficult this is to get right is illustrated only too clearly by the case of footballer Ched Evans whose conviction for rape was subsequently quashed.
There was once a time when it was a regular tactic of defence barristers in rape cases to raise the past sexual history of the accuser in a manner which all too often effectively put the victim on trial.
It is right that this is no longer usually permitted
It is also a good thing that accusers in rape and sexual assault cases usually have anonymity to provide them with some protection from the humiliation which is often associated with this crime.
Indeed, what happened to the female witness in the Ched Evans case demonstrate that anonymity for witnesses in rape trials can be necessary even if the accused is found innocent. If press reports are accurate the woman in the Ched Evans case has said all along that she does not remember the key events of the night in question, never directly accused Evans or the other footballer involved of raping her and, some reports suggest, originally went to police to report a missing handbag.
There is a clause in the rules which normally ban introducing evidence about the sexual history of a witness in a rape case, which permits an exception in special circumstances. The appeal court made a controversial ruling that those special circumstances applied and that exception could be used in the Evans case, as did the subsequent retrial.
By all accounts this was an immensely difficult decision and I understand the viewpoint of those who fear that it might set a precedent which undermines this important rule. But I can also see why the Appeal Court and the retrial jury did not regard the original conviction as safe.
I am not going to try to second-guess the courts by pretending that I know of a perfect way they could have dealt with the Evans case, I refer to it only to illustrate how difficult it is to run a justice system which is fair to both accused and to victims.
Incidentally it is not just the criminal justice system which has a problem with this issue but society.
Between his release from prison after his initial conviction, and his being acquitted at the retrial after that conviction was quashed, Evans was the target for a largely successful campaign to stop him ever being employed as a footballer again from people who for various reasons did not consider that his prison sentence was sufficient punishment. Effectively a self-appointed lynch mob took it on themselves to wreck the employment chances and prospects of rehabilitation of someone who had served his punishment for what turned out to be an unsafe conviction and who was eventually cleared.
Meanwhile the woman in the case, although the people doing this were of course breaking the law, suffered a campaign of harassment on social media and had to change her identity.
There is much controversy over this difficult case but there should be two things that everyone can agree with: first that the campaign of harassment against the woman involved was wrong, and secondly that the case illustrates that there are no easy answers to the questions of how we deal fairly with sexual crimes.
How reliable is the 4% figure?
I referred earlier to Home Office Research study Number 293 of 2005, and how this study is often quoted as having found that only 4% of rape allegations are false. That way of describing their finding implies a much greater degree of certainty to this finding than the authors of the report actually claimed. What they actually wrote is that
"Nine per cent of reported cases were designated false, with a high proportion of these involving 16- to 25-year-olds. However, closer analysis of this category applying Home Office counting rules reduces this to three per cent. Even the higher figure is considerably lower than the extent of false reporting estimated by police officers interviewed in this study."
These comments were made on the basis of a detailed study of about two and a half thousand reported rape cases in three geographical areas which had a slightly above average rate of rape convictions (about 8% compared to a national average of a little over 5%. Of the 2186 reported cases which could be categories, police classed 216 as false allegations, which represents about 9% of the 22,884 cases in the study which it was possible to classify. Those cases, incidentally, represent about a third of those which the police classed as "no crime."
The authors of the study had clearly done a lot of detailed work, but to try to form a view about the proportion of rape allegations which are false they had to make a huge raft of assumptions. None of those assumptions struck me as unreasonable and they may very well be right, but equally, a different study making alternative and also defensible assumptions might have concluded that 20% of rape allegations are false.
I think most fair-minded and intelligent people reading the study would conclude that
1) The authors are almost certainly right that the majority of rape allegations are genuine
2) The authors were probably right that there were at that time a significant number of people in the police and criminal justice system who overestimated the proportion of false allegations of rape.
(However those attitudes appear to have changed significantly and this is probably much less true in 2018 than it was in 2005.)
3) The authors recognised that false allegations of rape do happen and there is no reasonable doubt that they were correct about that.
4) Nobody knows for certain what the real proportion of false allegations is, but the overall proportion is irrelevant to any given case anyway. Each individual case has to be judged on the evidence in that case without pre-judging the evidence from the accused or the accuser and witnesses.
CONCLUSIONS
The only way to treat both the accused and accusers or witnesses fairly is to take seriously the possibility that they may be telling the truth until and unless it is conclusively proved otherwise.
The more vile the alleged offence, the more important it is that the accused is treated as if innocent until proved guilty - but that does not mean ignoring what the accuser has to say.
DNA testing, CCTV and other forensic advances may solve crimes which might otherwise have been insoluble, but they will not remove the need for old-fashioned police work.
Police, prosecuting and defence lawyers, judges and juries all need to be better advised about advances in science and the meaning of statistics and the provision of a series of books to advise juries about science (including statistics) is a big step forward.
The duty of the prosecution to disclose evidence to the defence in a timely way is an essential safeguard against wrongful conviction and there is evidence of the need for a full review of whether this is happening properly.
It is a recipe for massive injustice if people use social media to "take the law into their own hands" whether by persecuting witnesses who they believe to have brought false charges or defendants who they believe have not been sufficiently punished. Britain may need stronger laws against such social media lynch mobs and it is the duty of service providers running social media platforms to help prevent those platforms being used in this way.
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