Relatively few headlines catch my attention. Especially those that relate to crime. When you have been a part of the criminal justice system for the thick end of 30 years, one’s skin is rather thick.

However, I recently read that in the year ending March 2020, 99% of allegations of rape reported to Police (in England and Wales) resulted in no legal proceedings. Therefore only in every hundred did. That’s an eye-watering statistic for sure.

Rape has always been an exceptionally difficult crime to prove but is there now the ghastly and unpalatable thought that this most heinous of crimes may be being committed with such regularity precisely because the conviction rate is so alarmingly low? After all, deterrents are a vital component in any criminal justice system – but only if they are (a) present and (b) effective. In fact this whole discussion elicits some fairly major discomfort and will likely be a difficult read for many. However, as I have been saying to colleagues in the legal profession and students for years, decades even, these issues don’t just go away by not discussing them. It is, in my humble opinion an issue that requires discussion for a variety of reasons.

In the year to March of this year, in excess of 55,000 rapes were reported to Police. Less than 1.500 individuals were convicted – the lowest number on record. It is anticipated that the problem may even be worse, if that seems possible. Rape is often part of what is referred to as the ‘dark figure’ of crime – in other words, it is extremely under-reported. With stats like those above, it is perhaps of little surprise. Some elect not to approach the Police out of shame and embarrassment; some because they anticipate they will not be believed; some dreading the court process and facing their attacker and some feeling that they will somehow be transformed from victim to accused.

Some estimates from the Office for National Statistics suggest that, potentially, the 55,000 figure I mention above may be DOUBLE that, standing at 107,000.

Whilst males can, of course, be victims too, this is overwhelmingly a crime committed by men against women – in fact they account for almost 90% of such reports.

Undeniably from a victim reporting an allegation right up to and including the conclusion of a criminal trial, we are witnessing the lowest number of guilty verdicts that has ever been seen. But why..?

Last year, before all the chaos of ‘coronavirus’, the Prosecution service in England and Wales, (the CPS, equivalent to our COPFS) discovered after an investigation that the entire criminal justice system was close to breaking point, suffering from neglect and a lack of resources. As a result of cuts, they claim that there are fewer Police available to conduct investigations into all crimes but especially those for highly complex and sensitive matters, such as rape and serious sexual assaults. Of course as resources diminish, paradoxically, reports by victims are increasing, creating double trouble.

However, there are possibly at least two other reasons – one is that prosecution services themselves are ‘cherry-picking’ cases that they believe they can win to avoid negative statistics and publicity. The other is somewhat more controversial and it is this. Overwhelmingly, rape is a crime where only two people are present and, starkly, the two ‘stories’ could not be more diametrically opposed. The system we have in this country is that ‘proof’ of any criminal activity must be ‘beyond reasonable doubt’ and the burden always rests with the Crown. Is it therefore surprising that in circumstances where a jury feels there is doubt, they acquit? Hardly. When you ask a jury to be sure as regards guilt it doesn’t or won’t take much to destroy any issue of credibility of the complainant. A juror feeling ‘almost certain’ or ‘thinking’ that the individual in the dock has ‘probably’ committed a crime is insufficient. Further, rape is an act of ‘intent’. An individual must be certain that consent was withheld (for consensual intercourse) but proceeded nonetheless. Given that there is often only two people present, with very different versions of events, no CCTV or even forensic evidence, it is perhaps not overly difficult to see why convictions, at least in part, are so low.

That is not to say that a ‘crime’ has not perhaps been committed. Of course not. ‘No’ means ‘no’, without explanation or qualification, but as I have said previously on these pages, it would be wholly incongruous if the procedures , robust procedures, that we have in place for other crimes were somehow altered for specific offences.

Like many other aspects of the criminal justice system, I suspect education, at a very young age might be the best option. Otherwise, we may find it very difficult to ever increase the conviction rate, notwithstanding the heinous nature of the offence.

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