Consent, Complainant Credibility & Special Measures: Review into Investigation & Prosecution of Rape Cases Proposes Changes to Law

How the criminal justice system responds to allegations of rape and other serious sexual offences is a major social and political issue. Following the historic sexual abuse revelations concerning celebrities and politicians, and to counteract public perceptions of an institutional reluctance to secure justice for complainants in these particularly difficult and complex cases, the government and investigating authorities are encouraging reporting, meaning allegations are being made on a more frequent basis. Yet despite a reported 68% rise in rape offences being recorded, there has only been a 17% increase in offences being charged.

In June 2014, the Met and Crown Prosecution Service (CPS) commissioned an Independent Review into the Investigation and Prosecution of Rape in London following the significant rise in the number of both recent and historic rape allegations being made. Recently, the final report was published, encouraging ‘a radical change’ in the approach to rape cases and proposing, amongst other things, changes to sexual offence laws to clarify the meaning of consent and better meet the needs of complainants.

The Review finds that ‘the complexity and intricacy of the legal framework’, particularly the legal meaning of consent, gives rise to misunderstanding by both the investigating and prosecuting authorities as well as jurors. To tackle these issues and more, 46 recommendations are made relating to resourcing, improved training and enhanced complainant care. From the perspective of criminal defence, proposed changes to the law include:

• amending the substantive criminal law on rape contained in the Sexual Offences Act 2003, ‘so that the impact of alcohol and other substances on capacity to consent is embedded in legislation’;
• codifying and strengthening the existing common law powers that allow expert evidence to be led to rebut ‘any inference adverse to the complainant’s credibility or reliability that may be drawn from subsequent behaviour or statements of the complainant’; and,
• amending the law relating to special measures for vulnerable complainants, so as ‘to dispense with a written application for a screen or live link [when giving their evidence]’, described as an option ‘which should be a matter of right for complainants in rape cases’, as well as for increased use to be ‘made of existing provisions permitting a witness to give evidence in private’.

The evidential hurdles in rape cases can be difficult to clear, as alleged incidents tend to relate to what is often an intimate and private interaction. The state of mind of both the complainant and accused is crucial, making rape a unique crime that poses particular challenges when compared to other violent crimes.

Unfortunately, the inherent complexities and intricate legal framework are often seen as barriers to successful prosecutions, rather than as necessary safeguards that seek to ensure the law is balanced, criminal proceedings are fair for all those involved and that cases are decided on sufficiently strong evidence. Here we provide an overview of how the law on rape currently operates in England and Wales, and some of the issues these difficult cases can raise for those defending such allegations.

An Overview of the Law on Rape in England & Wales

The law that governs rape and the policies, practices and procedures that set out how allegations of rape are investigated and prosecuted, are complex. It is one of the most serious sexual offences that raises various and difficult evidential issues. However, as the Court of Appeal has stated, ‘the problems do not arise from the legal principles. They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence’.

Due to their complexity, the investigation and prosecution processes involved in rape cases are often protracted. It is the Crown Prosecution Service (CPS) that decides whether to prosecute those accused of rape. In many rape cases, gathering sufficient evidence to prove beyond reasonable doubt that the complainant did not consent and the defendant did not reasonably believe that the complainant consented is the key issue. However, if the CPS considers there is sufficient evidence, it will inevitably authorise the charge on the basis that it is in the public interest. The case will then be prepared for proceeding through the court process.

Consent & Reasonable Belief – The Law

Context is of vital importance in rape cases, which require the determination of consent and reasonable belief. The offence of rape is contained in section 1 of the Sexual Offences Act 2003. It is committed where a person intentionally engages in a penetrative sexual activity with another person who didn’t consent to the activity and there was no reasonable belief that that person consented.

Consent is defined in section 74 of the Sexual Offences Act 2003, and is taken to mean that consent to sexual activity is a choice that can only be given by a person who has the freedom and capacity to make that choice. Consent, which can be withdrawn at any time, can be given to a particular sexual activity or be given with conditions, such as only consenting to sexual intercourse if a condom is used.

This means that as well as proving the physical act of rape, the prosecution must also prove that the complainant did not consent and that the accused did not have a reasonable belief that the complainant consented. Whether an accused has a reasonable belief, i.e. what their state of mind was when or if intercourse took place, is determined by having regard to all the circumstances. This means that when someone is being investigated for rape, police officers will interview them to actively discover and establish the steps that were taken to obtain the complainant’s consent.

The Act also sets down a set of rebuttable presumptions where consent will not be deemed to have been given. For example, where the incident is alleged to have occurred under the threat of violence or the complainant was asleep, unconscious or involuntarily intoxicated by a substance or alcohol. In these cases, the burden of proof is reversed – it is for the defence to adduce sufficient evidence to raise an issue as to whether there was consent and the accused reasonably believed there to be consent.

Capacity to Consent & the Voluntary Consumption of Alcohol or Drugs – The Law

Particularly difficult cases arise where a complainant alleges they were incapacitated having voluntarily consumed alcohol or drugs when the alleged incident took place. In England & Wales, the current law is found in R v Bree [2007] EWCA Crim 804, where the Court of Appeal emphasised that the focus is on whether the complainant is capable of choosing whether to have intercourse, which depends on the actual state of mind of the individuals involved at the time of the alleged incident.

Where a complainant voluntarily consumes substantial amounts of alcohol, but remains capable of choosing and agreeing to have intercourse, it will not be rape. However, where a complainant temporarily loses their capacity to choose, through drink or for any other reason, they are not consenting, and subject to the defendant’s state of mind, it will be rape.

The Court also affirmed that the Act’s definition of consent for the purposes of the law of rape was clear, sufficiently addressing the issue of consent in the context of voluntary intoxication: ‘it would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions [of capacity to consent] to be related to some prescribed level of alcohol consumption. Experience shows that different individuals have a greater or lesser capacity to cope with alcohol than others, and indeed the ability of a single individual to do so may vary from day to day. The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves’.

Yet despite these comments, it is within this context that the recent review on rape investigations and prosecutions recommends that the legislation be amended to incorporate ‘the principles set out in the case of Bree so that the impact of alcohol and other substances on capacity to consent is embedded in the legislation’ and that ‘a powerful social message is established’.

Allegations of Rape – Criminal Defence

In response to societal and political pressures to increase the conviction rate in rape cases, the authorities are increasingly using trawling methods, aimed at quantity rather than quality, when gathering evidence and building their case against an accused. Court procedures in rape cases have also been reformed to be more complainant-centric, as can be seen by the increased use of special measures. Further, under the Criminal Justice Act 2003, elements of the law were reformed to allow the admissibility of bad character and hearsay evidence.

The cumulative effect is that rather than having the presumption of innocence and the fundamental right to a fair trial, the accused often has to prove their innocence and present the strongest case possible.

It often rests on the defence to truly test the creditability of the complainant and veracity of evidence. Rape cases are often the most complex and difficult. Unfortunately, allegations of sexual offences require a forensic examination of the cogency of the alleged incident, which can be especially unpleasant for both a complainant and an accused. At Tuckers, we understand that such sensitive issues place a particular strain on those alleged to have committed a sexual offence, as well as their family and close friends. You can find out more about our approach to sexual offences criminal defence here.

Expert Sexual Offences Defence

At Tuckers, our Special Casework Team, headed by leading criminal defence lawyer Richard Egan, provide exceptional representation for those forced into the criminal justice system. The quality of the defence statements and other documents produced in rape and other serious sexual offences cases by Richard and his colleagues have been positively commented on by both the court and prosecutors alike. Their attention to detail and careful preparation means they have an outstanding record in defending their clients, with many cases being dealt with before trial.

For those accused of the crime of rape or any other sexual offence, we are well prepared to fight their corner every step of the way, with professionalism and sensitivity, deploying our expertise and specialism to devise and work to an effective defence strategy and build the strongest defence case possible. For more information, please e-mail eganr@tuckerssolicitors.com, or contact Richard Egan on 0771 112 9918.