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Process
1 Introduction
The aim of the concluding section of the Criminal Law module is to explore how
the substantive criminal law can be studied as part of the broader field of the
criminal process as a whole. This will be done largely through one principal
example: the offence of rape.
All but the last of the topics in this section of the module (sentencing) are dealt
with in some detail in the module document Rape and the criminal justice system,
which is available both as a handout and on WebCT. Sentencing will be covered in
a separate lecture handout.
Additional sources of reading on the law of rape, but which do not deal with the
law enforcement, evidence / court procedure, and sentencing elements of the
syllabus:
A. Ashworth Principles of criminal law (5th ed., 2006) pp 337 352.
C.M.V. Clarkson et al. Clarkson and Keating Criminal Law (6th ed., 2007) pp 625
659.
Further general reading can be found in:
J. Bourke Rape; a history from 1860 to the present day (2007; Harding Law Library
KH 19/B (short loan); see especially Chapter 2 (Rape myths) and Chapter 3 (No
means yes); the full text of Chapter 2 is available on WebCT.)
The principle limitations of crime statistics recorded by the police relate to:
(a) Recording decisions by the police
Until 2002 some police forces adopted what the Home Office has called a prima
facie model of recording crime, whereas others adopted an evidential model. This
lead to considerable variation in the extent to which crimes were recorded. The
move towards the adoption of the prima facie model in the National Crime
Recording Standard (NCRS; completed in 2002) resulted in an increase in the
figures for recorded crime which was not a true reflection of any change in the
occurrence of actual crime.
The Home Office Counting Rules embody the prima facie approach:
An incident will be recorded as a crime (notifiable offence)
1. For offences against an identified victim if, on the balance of probability:
(a) the circumstances as reported amount to a crime defined by law (the
police will determine this, based on their knowledge of the law and
counting rules), and
(b) there is no credible evidence to the contrary.
(Source: Section A of the General Rules section of the Home Office
Counting Rules (revised April 2007), available at
http://www.homeoffice.gov.uk/rds/pdfs07/countgeneral07.pdf, last
accessed 3/3/2008)
In 2003 the Home Office reported that:
The national picture for total crime demonstrates an overall NCRS impact
of 10 per cent on the recorded crime statistics for 2002/03. In other words,
the crimes counted in 2002/03 were 10 per cent higher than they would
have been under pre-NCRS recording, reflecting a change in recording
practice rather than a real increase in crime.
(Source: J. Simmons & T. Dodd, Crime in England and Wales 2002/2003, p.
34. Home Office; full text available at
http://www.homeoffice.gov.uk/rds/pdfs2/hosb703.pdf, last accessed
3/3/2008)
The Home Office counting rules aim to ensure consistency in recording; however,
it is unlikely that practices such as up-criming or down-criming have been
eliminated.
(b) Decisions by victims and others to report offences to the police
People decide to report or not to report crimes for many reasons. In some
circumstances these individual decisions can have a very significant effect on the
figure for recorded crime; rape is almost certainly an example of where this factor
can been seen to affect the criminal statistics.
The British Crime Survey (BCS) and police recorded crime present a
broadly similar picture of changes in crime since 2005/06. Overall, the
BCS shows no significant change in crime (for the second year running)
and police recorded crime shows a two per cent decrease.
3.1.
Note that the Sexual Offences Act 2003 created an offence to be known as assault
by penetration, with the same maximum penalty (life imprisonment) as rape:
2 (1) A person (A) commits an offence if(a) he intentionally penetrates the vagina or anus of another person (B)
with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.
Some jurisdictions, such as Canada, have adopted the former approach. However,
the Home Office Review of Sex Offences: Setting the boundaries (2000; full text
available online at http://www.homeoffice.gov.uk/documents/vol1main.pdf)
recommended that rape should not be subdivided into lesser and more serious
offences. Although the Sunday Times reported that the then Home Secretary, Jack
Straw, had been thinking of adopting something like the Canadian approach
shortly before the 2001 General Election, that view did not prevail in the Sexual
Offences Act 2003.
For further discussion of these issues see the module document Rape and the
criminal justice system, section 5.
Note that the SOA 2003 did create one further offence of rape to apply in
particular circumstances:
5(1) A person commits an offence if
(a) he intentionally penetrates the vagina, anus or mouth of another
person with his penis, and
(b) the other person is under 13.
(2) A person guilty of an offence under this section is liable, on conviction
on indictment, to imprisonment for life.
5.1 Introduction
Whatever decisions legislators and courts have made about the requirements for
criminal liability in any offence, the question of whether those who break the law
will be found guilty and punished depends upon a great many other factors. For
example, the way in which the police do their work will clearly influence the
number of offenders who are prosecuted, and the jury selection process can be
assumed to have some impact upon the number of guilty verdicts in the Crown
Court. In this lecture we shall consider police handling of rape as an example of
the importance of law enforcement to a study of law and legal policy.
Research for the Home Office has pointed out that whilst in 1977 about 32% of all
reports of rape resulted in a conviction, that figure had reduced to 5.6% by 2002.
(L. Kelly et al. A gap or a chasm? Attrition in reported rape cases Home Office
Research Study 293, 2005, p.25; full text available online at
http://www.homeoffice.gov.uk/rds/pdfs05/hors293.pdf, last accessed 3/3/2008.
See also the 'Rape & CJS' handout, section 4.1.) More recent research has
confirmed that the figure is approximately 6%. (A. Feist Investigating and
detecting recorded offences of rape Home Office Online Report 18/07, 2007; full
text available online at http://www.homeoffice.gov.uk/rds/pdfs07/rdsolr1807.pdf,
last accessed 3/3/2008.)
The Crown Prosecution Service will decline to prosecute a case of rape if there is
not a realistic prospect of conviction, or where they believe the public interest
does not require a prosecution. In recent years the CPS has confirmed that it will
not simply accept at face value a statement from a complainant that they wish to
withdraw the complaint:
If we suspect that the victim has been pressured or frightened into
withdrawing the complaint, we will ask the police to investigate further. If
necessary, we will ask the court to delay any hearing so that a thorough
investigation can take place before we decide about the future of the case.
If the victim confirms that the complaint is true but still wants to withdraw
that complaint, we will consider first whether it is possible to continue with
the prosecution without that evidence (the evidential test) and then, if it is
possible, whether we should continue with the case against the victims
wishes (the public interest test).
(Crown Prosecution Service Policy for prosecuting cases of rape c.2005; full
text available online at
http://www.cps.gov.uk/publications/docs/prosecuting_rape.pdf, last
accessed 3/3/2008.)
The central issue is the perception of many women that they have been treated
as though they were the accused when a rape case is tried. Much public attention
during 1997 - 98 was given to a few cases in which defendants in person crossexamined complainants in an intimidatory manner: see e.g. Brown (Milton) [1998]
EWCA Crim 1486. That problem has been addressed by the Youth Justice and
Criminal Evidence Act 1999. However, this should not be allowed to distract
attention from the manner in which barristers cross-examine complainants.
You need to be aware of the research which shows how the law worked in practice
under s.2 of the Sexual Offences (Amendment) Act, 1976 and the cases
concerning that provision (e.g. Viola, Brown).
You also need to know how s.41 Youth Justice and Criminal Evidence Act 1999
changed the law on sexual history evidence, including the interpretation of the
new law by the courts in the light of the Human Rights Act (R. v. A.), and the
assessment of whether the 1999 Act is likely to have ended the problems
associated with s.2 of the 1976 Act. The issues are dealt with in some detail in the
rape handout, section 4.2.
The Home Office has published the report of a major review of the operation of
s.41 YJCEA. One of the findings of the review was that the new provisions had not
had any effect in halting the decline in the proportion of rape prosecutions which
result in a conviction. The report also found that procedural rules about how s.41
was to be implemented by the courts were frequently ignored, and contains
extracts from interviews with judges and barristers about the operation of the law.
The Rape & CJS handout contains extracts from the report which you should
ensure you have read. (Liz Kelly, Jennifer Temkin, Sue Griffiths Section 41: an
evaluation of new legislation limiting sexual history evidence in rape trials Home
Office Online Report 20/06; full text available online at
http://www.homeoffice.gov.uk/rds/pdfs06/rdsolr2006.pdf, last accessed 3/3/2008.)
[It is possible to suggest that s.100 Criminal Justice Act 2003, which limits the
admissibility of evidence of the bad character of a person other than the
defendant, applies to the cross-examination of complainants in rape cases.
However, it has been argued by Colin Tapper that the CJA will have no significance
in these circumstances because the YJCEA already applies stricter tests to what
can be asked in cross-examination in rape trials. For the purpose of this module
the view of Tapper has been adopted; no details of Part 11 Ch. 1 of the CJA 2003
will be given. See C. Tapper "Criminal Justice Act 2003: Part 3: Evidence of Bad
Character" [2004] Crim. L.R. 533, 553(July).]
6.4 Anonymity
Should people who allege rape remain anonymous throughout the investigative
and court processes? If there is an argument in favour of anonymity for the
complainant, is there an equally good argument for protecting an alleged rapist
through anonymity? If so, should the anonymity continue after charge, or even
after conviction?
Until recently the law was that for most sexual offences, including rape, the judge
had to warn the jury of the (alleged) danger of convicting solely on the basis of
the evidence of the complainant. However, s.32(1) of the Criminal Justice and
Public Order Act 1994 changed the law:
Any requirement whereby at a trial on indictment it is obligatory for the
court to give the jury a warning about convicting the accused on the
uncorroborated evidence of a person merely because that person is
(a) an alleged accomplice of the accused, or
(b) where the offence charged is a sexual offence, the person in respect of
whom it is alleged to have been committed,
is hereby abrogated.