Dame Vera Baird
In this article, Sean Bw Parker evaluates the Victims’ Commissioner’s analysis on rape in her annual report of 2021/22 from the perspective of the phenomenon of false allegations and the miscarriages of justice that are a consequence of them. As readers will see, Dame Baird adopts a one-sided and entirely ideological approach to allegations of sexual offences, which works on the basis that complainants of sexual offences are telling the truth. It is worrying that the Victims' Commissioner fails, entirely, to consider the possibility and reality of innocent victims of false allegations of rape, the wrongful convictions that are caused by them, and the extensive forms of harm and stigma that they can experience when justice goes wrong. The structure of the article is for Sean’s comments to come after the Victims’ Commissioner’s text in bold and italics.
The Victims’ Commissioner’s 2021/22 Annual Report was published on 21 June 2021 (see here).
In my first annual report in 2020, I made headlines by saying that we were witnessing the effective decriminalisation of rape. During my subsequent years in post as Victims’ Commissioner, little has swayed me from that perspective.
Little ever does seem to sway activists from their ideological stances, whatever their job title.
Despite a long-delayed end-to-end rape review, various governmental action plans and plenty of tinkering round the edges, you can’t escape the numbers; they continue to speak for themselves.
Numbers are statistics and can be reported in various ways depending on the interests of the reporter.
Rape prosecutions: a lottery
For victims, reporting rape is effectively a lottery and the odds are rarely in your favour. In the year to December 2021, there were 67,125 rape offences recorded – an all-time high. Yet the number of completed rape prosecutions plummeted from 5,190 in 2016-17 to just 2,409 in 2020-21. The numbers of convictions almost halved (2,689 in 2016/17 compared to 1,409 in 2020/21). Only 5% of rapes that were given an outcome by the police in the year ending December 2021 resulted in a charge.
These are not rape offences, they are rape allegations. In 2016-17, Alison Saunders was head of the Crown Prosecution Service, and arguably responsible for more false or spurious convictions than anyone, as evidenced by her sacking due to disclosure issues which included the Liam Allan scandal. Her successors figures might alternatively be seen as an attempt to return the statistics to a state of normality beyond the biased 'Come forward' and ‘Believe the Victims’ media, police and CPS campaigns.
If you defy the odds and secure a charge, you will likely have to wait the best part of three years from reporting before you will get to trial. Along the way, your trial date will almost certainly be fixed, then cancelled and then relisted months into the future. The joint thematic inspection on rape found that on more than one occasion, this happened just hours before victims were expected in court. You will have lost sleep dreading re-visiting what happened at the trial only to have to get over it and draw your resolve together again. You will be tested at every juncture.
The ’victims’ you claim here are alleged victims as per the presumption of innocence. Further, delayed trials are exhausting and stressful for both accuser and accused individuals who may be victims of false allegations.
And should you persevere to the trial – perhaps more than a year from when the defendant was charged – you are likely to find giving evidence highly re-traumatising. Some victims tell me they find their experience in court worse than the offence itself.
That you admit that answering questions truthfully in court is more stressful than a crime traditionally seen as second in seriousness only to murder - and to many more serious - speaks volumes in itself.
Despite warm words from the government and from our criminal justice agencies, this is still often the stark reality for rape victims.
By using the term ‘rape victims’ here, do you mean complainants following a guilty verdict or alleged rape victims who make allegations that they have been raped? Government and criminal justice agencies feel bullied by activists into supporting everything they claim, as they tend to play on emotions, as opposed to dealing with the facts.
Balancing the right to privacy in rape investigations with the right to a fair trial
In this Annual Report I can reflect on some of the changes that have come about through the work of my office. In at least one particular way, we have been able to make the criminal justice system a slightly less hostile place for victims of rape.
I think you mean complainants. Are defendants not entitled to the criminal justice system being slightly less hostile too?
Campaigners have coined the phrase ‘digital strip-search’ to describe the routine requests for a rape complainant to hand over their mobile phone almost immediately upon making a complaint. Historically, the phone’s contents have been comprehensively downloaded and fully scrutinised. Independent Sexual Violence Advisers are clear that a failure to hand over the phone frequently results in the investigation almost immediately being closed. Victims are effectively being forced to choose between justice and their right to a private life.
Rape has traditionally been seen as a very serious crime, its etymology meaning the desecration or appropriation of property. If it is accused, responsible investigators need the full picture. There is no privacy in this situation for the defendant, so why should there be for the accuser? As per the presumption oif innocence, all allegations should be scrutinised to determine their truthfulness. What is there on the phone that they don't want to see? Anything like the 40,000 text messages sent from Liam Allan's accusers' phone, but not disclosed to his solicitor?
In a joint HMICFRS/HMCPSI report, inspectors cite examples of senior officers and CPS prosecutors asking for full downloads of victims’ phones when it was “neither reasonable nor proportionate”.
Translation: when it wasn't in the best interests of the prosecution. Again, you should say ‘alleged victims’.
An unpublished inquiry by CPS themselves reported that 60% of demands for download made were ‘irrational and over-intrusive’.
I'm sure many of the falsely or spuriously accused feel similar when their homes are denuded of computers and their own phones ransacked.
And such demands fall nearly exclusively on the victim. The victim’s credibility is put under the microscope by the police and CPS in a way that would not happen with any other kind of complainant. This intrusion is in contravention of most established legal frameworks, which require such requests to be ‘reasonable and proportionate’ in pursuit of content which forms part of a reasonable line of enquiry.
Good to see use of the term 'complainant' at last, though right after two incorrect uses of victim when you should have said ‘alleged victim’. The 'believe the victims' policy set the standard for contravention of most established legal frameworks, as commented on by Judge Richard Henriques amongst many others.
With the Police Crime Sentencing and Courts Bill, the government were minded to legislate more generally around seeking evidence held on personal electronic devices. But in doing so an unintended consequence risked effectively legitimising these excessive intrusions into rape victims’ private lives. As a result, the proposed clauses in this Bill would run in entirely the opposite direction to the promises made by government in its end-to-end rape review just months prior
There are no 'rape victims' before a verdict is announced in a criminal trial. There are complainants, the vast majority of whose claims don't pass the bar for charge. Of those that do, an increasing number have been found to be malicious, leading to more and more prison sentences being handed to them, simply for following your instructions to 'come forward' (with no consequences for mendaciously doing so).
I worked to persuade government to embed essential protections for victims into this legislative provision. I brought together leading voices in this area, including key victims’ groups, the National Police Chiefs’ Council lead for disclosure, ACC Tim De Meyer, and the Information Commissioner’s office. This group brought their valuable expertise, and we worked in partnership to shape my proposals.
Though initially resistant, the government reflected on their position and began to agree with my line of thinking. They took our clauses on, built on them and improved our work. For instance, they specifically added protections to specify that a complainant cannot be coerced into handing over their private digital information, by threatening that their investigation will be closed should they fail to comply.
Really good to see you use the correct term here for complainants. However, the government might be 'resistant' because they are wary of passing ever more punitive policies over what they can tell is a politicised agenda dressed up as 'being kind', which would undoubtedly cause more innocent victims of false allegations to be convicted. Maybe it's not just the government that needs to 'reflect'.
This should be the start of a significant step forward for victims. Fear of handing over personal information acts as a powerful barrier to reporting and seeking justice, with large numbers of victims withdrawing from the justice system once they have reported for just this reason. Excessive requests for victims’ digital material should lessen. But this is only half the story.
If you're going to make such a life-shattering accusation as an allegation of rape, then you have a duty to let the investigators have all the information they need to complete the fullest picture possible. Anything else is biased against the accused or the defendant, which isn't how things used to be done in the UK. And there are no victims before verdict (if then). As a senior barrister with a KC, it is worrying that you persistently fail to appreciate that the underlying presumption that is supposed to underpin our criminal justice system and give legitimacy to its operations is that alleged offenders are presumed to be innocent and the duty is on the prosecution to show beyond a reasonable doubt with reliable evidence that they committed the offence that they are accused of,
Third-party materials
Rape complainants still face similar intrusions into their personal lives in the form of demands for ‘third-party’ materials. This is a complainant’s private data which is in the hands of third parties, such as medical, therapeutic, education and social services records.
How is this different from an investigation into an accused individual who is supposed to be presumed innocent? Our system of justice is supposed to investigate allegations and should consider everything that is available as allegations are easily made but often impossible to disprove.
These records are frequently sought as a matter of course in what is yet another attempt to comb through everything that is recorded about them to see if there is any imperfection in their earlier lives which may call into question their credibility.
It's not about 'imperfection', it's about trying to construct an entire context, as grey-area complaints such as alleged rape depend on context. It is akin to attempts to interpret mens rea in other types of alleged criminal offences. You need to see any and all available evidence to determine whether the allegation is valid or malicious.
The pursuit of this material is nothing other than a credibility test of the victim.
If the defendant is going to be subjected to being considered as guilty before proven innocent in alleged sexual offence cases, which inverts the presumption of innocence, then the least the complainant can face is a 'credibility' test.
It is hard to see the logic of legislating to stop the demands on complainants for their personal digital data whilst leaving this personal material in the hands of third parties open to random scrutiny by the police and CPS. It is obvious that there is a cultural issue in those criminal justice agencies and that will not be changed by directing that they must not make over intrusive demands for digital data whilst continuing to allow it with third-party material.
Requesting a contextual picture of a complainant's life, personal or otherwise, is a necessary part of investigations, and is not 'over-intrusive'. To claim it is infantilising. Such serious allegations, with profound, extensive and often permanent forms of harm and stigma when they are falsely made, must not be consequence-free.
In particular, there is no logic in banning the threat to stop the prosecution, if the complainant does not consent to handing over digital material, if that same threat can still be used to obtain third-party material. The only way to change culture, practice and to protect rape victims is to legislate to control requests of both kinds of material: digital phone records and third-party data.
The 'culture' doesn't need to change, complaints of sexual assault or abuse need to be treated as what they are, unproven claims or allegations that may or may not be truthful, as opposed to attempting to criminalise allegations that are unproven made by complainants who are not to be seen as victims at this stage.
The government committed in the House of Lords to consider legislation to protect against third party material demands. I urge government to use the upcoming Victims’ Bill to legislate so that criminal justice agencies are left in no doubt that this practice must stop. Additionally, in my response to the Victims’ Bill consultation, I recommended that there should be a statutory system of protective privilege for the confidentiality of sexual assault victims’ therapy records in any criminal proceedings. This, too, must now be delivered.
I presume that the Victims' Bill will also provide for victims of miscarriage of justice, false allegations and total life destruction, by means of comprehensive compensation by the taxpayer funded CICA.
Independent legal advice
We also need to see the government commit to free, independent legal advice for rape complainants. This must be provided by a qualified lawyer who can counsel on matters affecting the victim’s human rights, such as disclosure and their past sexual history being brought as evidence at trial.
To date, the government have only committed to a limited consultation as part of last year’s end-to-end rape review. Almost 12 months since its publication, I’m yet to see any action in this area. This is despite the successful three year pilot of exactly this kind of independent legal advice which I established when I was the Police and Crime Commissioner for Northumbria. The pilot was evaluated with 23 of the 25 professionals who had been involved in it believing and that it should be rolled out nationally. It brought unmistakable positives for victims and for the police who were able to resist Crown Prosecution Service demands for time-consuming searches of private material by narrowing down what should be pursued in agreement with the opinion of a qualified solicitor. It undoubtedly improved justice outcomes and I have long argued for its national rollout. So, why the delay?
'Successful' here presumably means more guilty verdicts, as you seem one-eyed in understanding both sides of a situation. Just because you have long argued for its national 'rollout' doesn't mean the CPS, dysfunctional as they are, need to just roll over.
Independent legal advice helps to protect victims’ human rights and enhance their overall confidence in and continued engagement with proceedings. As part of my evidence to the Home Affairs Select Committee inquiry into rape prosecutions last year, I restated my commitment to this measure. I was pleased to see in their final report, they too recommend the government commit to this. My strong view is that the Justice Secretary should simply drive this key work forwards.
Maybe that kind of steamrollering coercion is why you're not getting your contract renewed. And, what about a more balanced approach that seeks to protect the human rights of those falsely accused of sexual offences so that their confidence in the criminal justice system might be enhanced?
Improving the court experience for rape victims
Attending court can be hugely intimidating for victims of crime. Many will find the experience highly-retraumatising. For rape victims, this is particularly the case.
Correct, sex trials are traumatising for both parties, alleged rape victims and those supposed to be considered innocent until proven guilty, and their attending friends and family.
Special measures are ways to help victims to give their best possible evidence in court. An exceptionally effective one is known as ‘Section 28’ after the clause in the statute which introduced it.
S28 says that a complainant may have their evidence videoed by the police (instead of making a written statement) which is then served on the defence. The defence then have time to prepare and when they are ready will cross-examine the complainant which is also video recorded. These two videos then become the complainant’s evidence for the trial, to be played whenever it takes place.
This will likely result in many more not guilty verdicts for defendants, simply due to absence of one party in court who cannot be effectively cross examined in front of a jury and which is arguably contrary to the human right to a fair trial.
A huge advantage is that once the recordings are done, the complainant has finished with the proceedings. They can get on with their life and take therapy if they need to. This gets them out of the court queue, saving them perhaps years of anxious waiting. Completing their evidence close to the time of offence also aids memory recall and helps to reduce the distress experienced by some witnesses when giving evidence to a full courtroom at trial.
All while the supposed to be presumed innocent defendant, who may well be innocent, has had their life shattered, family torn apart or lost, work decimated, self-esteem destroyed, and so on.
S28 was piloted long ago and was rolled out nationally for vulnerable complainants from the start of the pandemic. I worked with the Criminal Bar to press for this rollout and the Government response was excellent.
In what way was the government response 'excellent'? What does ‘excellent’ mean here?
However, that limits the use of S28 mainly to child victims. It is good news that the Deputy Prime Minister has resolved to roll it out also for ‘intimidated’ witnesses which includes adult rape complainants. After its announcement in December, it has since been rolled out to a total of 26 out of approximately 85 Crown Courts in England and Wales. This is excellent and this work must be sped up even further. There are clear views amongst some criminal justice professionals that this should be the default way in which all sexual assault complainants give their evidence. The courts have been using video evidence for almost two decades and S28 is too beneficial for victims not to be used throughout the court system in England and Wales.
Presumably defendants who are victims of false allegations don't get to be 'intimidated' by life-altering Crown Court trials.
Time for real accountability
Since 2016/17, we have seen a catastrophic decline in rape prosecutions.
No, we haven't. We've seen an attempt to repair the damage done by a disgraced and criminally politicised Director of Public Prosecutions.
That year, the Crown Prosecution Service decided to cut the number of rape cases it prosecuted to increase its conviction rate to 60%. They would take on only what they considered to be ‘stronger’ cases. Within a year it was prosecuting almost 1,000 fewer rapes, and by the next year 2,000 fewer rapes. If there is no prosecution, there can be no conviction and this decision meant that rape convictions have been at their lowest ever for nearly 4 years – having fallen dramatically from 2991 in 2016/17 to 1,517 this year. That is almost 1,500 rapists per year who are still on the streets who could have been convicted if this decision had not been taken.
The fact that 8 out of 10 defendants are known to their complainants negates the idea of 1500 'rapists on the streets'. Any word suffixed with 'ist' implies a repeated pattern of intentional behaviour. These cases aren't usually that. 1500 is, however, the number of wrongfully convicted people per year in the UK, according to the CPS, and repeated by the BBC.
I, and others, have repeatedly called for it to be reversed. In its end-to-end rape review, the government committed to reversing the drop in charges by the end of this parliament. Yet the government’s action plan contained few concrete measures to genuinely transform how rape is investigated and prosecuted. And at the current rate of progress, it would take approximately 17 years to return rape charging levels to those of 2016/17.
It's strange how a government-appointed official sees the term 'progress'. Progress is surely having fewer rape convictions, but you seem to want more? You seem to see justice as a numerical game; about the statistics on the percentage of allegations versus the number that lead to convictions, rather than a process where each individual who is accused of an alleged offence has the right to a fair investigation of the allegation and a fair trial.
Meanwhile, a key rape review recommendation was the roll out of Operation Soteria. The pilot (named Operation Bluestone) saw a group of highly experienced academics invited into a police force to carry out rigorous scrutiny of how it investigated rape. Its findings were of huge concern and this team of academics devised a system of ‘offender-centric’ investigation which, as ‘Operation Soteria’, has now passed on to five other forces, with the prospect of rolling it out to a further 14 police forces shortly.
As I'm sure you're aware Operation Soteria is a US imported system of criminalising athletes and students by letting university boards directly report students to the police with extreme prejudice. The term 'offender-centric' is bizarrely prejudicial in itself. Further, there are also highly experienced academics that would totally disagree with your approach and interpretations. Again, you only seem to see what you want to see and turn a blind eye against a more holistic approach towards allegations of sexual offences and the phenomenon of false allegations where innocent victims have been wrongly convicted.
Ultimately, the aim is to embed Soteria as a National Operation Model. Soteria has seen strong engagement from the police so far and the government intends to also extend this to the Crown Prosecution Service. However, to date, there has been minimal engagement from the CPS, with only sporadic participation undertaken with the Soteria academics.
This is possibly because the CPS and some remaining balanced and objective academics suspect Operation Soteria is a corrupt piece of socio-legal engineering that might further destroy the lives of innocent victims of false allegations.
It has taken many months for the CPS to appoint an academic of their own – with no clarity, at the time of writing, of their terms of reference. Assuming the CPS genuinely open their doors to scrutiny, I look forward to a much-improved charge and conviction rate.
I think by now I understand by 'much-improved' you mean more convictions, however spurious and harmful to innocent victims who are wrongly convicted.
I urge government to ensure that all criminal justice agencies are fully engaged in Soteria and that it is rolled out to all areas without financial cost to the forces. The government has said that it will publish national and regional rape ‘scorecards’ so that at least some numbers will be made public. Transparency of data is to be welcomed but shining a light on the issue does not equate to accountability.
You want to punish some forces for not agreeing with you without question of how you define the treatment of the allegation of rape. You don't seem to care about individuals who might be, and are falsely accused and wrongly convicted, you just seem to care about pushing your own ideology, without regard for whomsoever it damages.
Yet it is accountability that drives change. If agencies continue to fail rape victims, what then?
Alleged victims and if agencies continue to fail innocent victims of miscarriage of justice or the next 'Victims Commissioner' , what then?
There has been public outrage about this for a long time and improvement is long overdue.
No there hasn't. There has been a great deal of public bemusement about what activists define as rape, and a growing tide of furious mothers, wives and daughters of the falsely accused.
There needs to be determined leadership in place, to bring about the quantum improvement so obviously needed. If the justice agencies do not offer change, the responsibility falls to government and the legislature to take more serious steps, to change the criminal justice agencies until they do this essential part of their work effectively.
The word 'victim' was used 30 times in this nine-page article when alleged victim should have been used.
By Sean Bw Parker
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