04:32, December 21 265 0 theguardian.com

2017-12-21 04:32:03
Why does police mishandling of evidence only make headlines in rape cases?

How do cases that highlight problems around disclosure in criminal trials become a media frenzy? That is what happened following the collapse of two rape cases in the last week. The trial of Liam Allan collapsed after it transpired that the Metropolitan police failed to disclose relevant evidence that might support the defence case until moments before the trial. A second case, the trial of Isaac Itiary, collapsed after material was not given to the defence team until his lawyers asked for it.

Scotland Yard confirmed that all of its current sexual offences investigations are to be reviewed to ensure compliance with disclosure legislation. These cases have rightly highlighted the systematic issues about fair disclosure, which have the potential to cause injustice for defendants and complainants alike.

But what is regrettable is a disproportionate focus on failed rape prosecutions when collapsed trials for other crimes are widespread, yet they rarely hit the headlines. A report in July this year concluded that the police did not properly disclose evidence in four out of 10 crown court cases, resulting in delays and collapsed trials. Rather than investigating disclosure in all serious criminal cases, one well-rehearsed story emerges: complainants in rape trials often lie or are slightly unhinged – the cliched woman in the attic of Gothic fiction – and so, defendants should be granted anonymity.

Unusually, it was the prosecution’s own barrister, Jerry Hayes, who uncovered the lack of disclosure. He said: “I would like to apologise to Liam Allan … there could have been a very serious miscarriage of justice.” This is the same Jerry Hayes (a former Tory MP) who was publicly criticised after saying on Question Time in 2013: “Clearly they weren’t raped because the person wasn’t prosecuted,” while making an argument in favour of anonymity for defendants in some rape and sexual offences cases.

The microscopic reporting of collapsed rape trials is part of a broader backlash against the Harvey Weinstein allegations and the #MeToo movement, which exposed endemic sexual harassment and even rape. The reporting of the Allan and Itiary cases has the power to regress, not progress, gender equality.

The judge in the former case explicitly said that: “Mr Allan leaves the courtroom an innocent man without a stain on his character.” However, the reporting on cases such as these, with a focus on a few text messages out of 40,000, may leave future victims less likely to come forward.

The reporting of the Allan case sends a message to women that your allegation of rape might not be believed if you claim that a sexual encounter was consensual and later report rape; it might not be believed if you have ever discussed rape fantasies; and that your sexual preferences will be made public. This contrasts with the law, which says a woman can withdraw her consent to sexual intercourse at any time.

Bizarrely, the CPS has guidance on charging women who falsely allege rape and/or domestic abuse but not any other serious crimes. An overzealous emphasis on prosecuting alleged false rape complainants has resulted in the UK prosecuting more cases than the US – 109 women between 1999 and 2014. Yet, only 3% of rape reports are false.

Prof Lisa Avalos, who has researched the prosecution of alleged false rape reports, argues that fear of prosecution deters complainants from coming forward. I vividly remember a friend of mine who was raped asking me whether she should report the incident because she might not be believed and she could be prosecuted. I felt angry by the stark reality that she could be re-victimised by a system that is supposed to support her and ensure justice is upheld.

Rape is one of the most under-reported crimes. In England and Wales, about 13% of reported rapes end in a conviction – that is, conviction on a range of charges from rape to lesser offences such as sexual assault and others. More needs to be done to encourage women to report cases of rape. This does not entail granting defendants anonymity in rape cases. On Tuesday, justice secretary and lord chancellor David Lidington told the BBC’s Today Programme that he would keep an open mind about granting rape defendants’ anonymity.

But why not grant defendants’ anonymity in murder, terrorism or paedophilia trials? What materially distinguishes rape? Perhaps it is the fact that the complainants are overwhelmingly female. There is no empirical evidence that women who make complaints that they have been sexually violated in the most egregious way are less likely to tell the truth than any other category of complainant. Let’s not forget that naming those accused of rape can result in other women coming forward to report other incidents of assault by the same perpetrator.

The lesson learned from the Allan and Itiary cases is that drastic public funding cuts to the criminal justice system degrade justice. Radical reforms of the current disclosure process are needed in all criminal cases. This will require increased public funding of an under-resourced public body and perhaps sanctions for non-disclosure. Reform of the justice system should be the message we learn, rather than a moral panic that some women lie about rape.

Charlotte Proudman is a human rights barrister specialising in violence against women and girls