12:56, November 06 448 0 theguardian.com

2019-11-06 12:56:04
Q&A: rape trials and the legal landscape

The resignation of Alun Cairns as secretary of state for Wales has highlighted one of the many difficulties prosecutors and police have in securing convictions in contested rape trials.

Why was Cairns’ friend, the Tory politician Ross England, so heavily criticised by a judge?

England, a former aide to the Welsh secretary, was called as a witness at a rape trial last year. His friend, James Hackett, was the defendant. Before the trial began the judge, Stephen Hopkins QC, ruled that the victim’s sexual history should not be mentioned in front of the jury because it was not relevant to the offence.

Defence attempts to drag into rape trials details about the personal life of a complainant have become a fiercely contested legal battleground. Last year a cross-party campaign by MPs and lawyers was launched to tighten the restrictions on introducing personal sexual histories into proceedings.

Two former Labour solicitors general, Harriet Harman and Dame Vera Baird QC, have warned that complainants are being subjected to invasive and unfair questioning about their past.

When England went into the witness box to give evidence at Hackett’s trial in April 2018 he made claims about the victim’s sexual history.

What was the judge’s response?

Judge Hopkins was outraged. In front of the jury he asked England why he had made the comments. “Why did you say that? Are you completely stupid?” he said. England said he had only been answering a question.

The judge replied: “No it wasn’t. It was quite clear what the question was. You have managed, singlehandedly, and I have no doubt it was deliberate on your part, to sabotage this trial. Mr England, as far as I am concerned, this matter so far as you are concerned isn’t ended. I shall be writing personal letters to people who are politically close to you and I hope they take appropriate action. Get out of my court.”

The judge ordered a retrial at which Hackett was eventually convicted at Cardiff crown court where he was sentenced to five years in prison. The fact that England had caused the first trial to collapse could not be reported until late last month when Hackett’s appeal against conviction was finally dismissed.

Have there been changes to the way rape cases are handled?

In 2017 the Ministry of Justice and the attorney general’s office published an analysis of more than 300 rape cases, showing that in 92% of them no evidence of the complainant’s sexual history was introduced by the defence.

The review suggested the bar for disclosure of such personal evidence was sufficiently high, and the law struck a careful balance between the need to protect complainants and to ensure defendants received a fair trial. The MoJ declined to impose a ban on rape complainants’ sexual history being revealed in court.

Concerns about the way section 41 of the 1999 Youth Justice and Criminal Evidence Act was being operated were expressed after the acquittal of the footballer Ched Evans in 2016. Evans’ retrial heard evidence from two other men who testified about the complainant’s sexual preferences and the language she used during sex.

Has the recent collapse in the number of rape trials been due to disputes over defendants’ sexual histories?

No. The steep decline in the number of rape cases coming to court, despite an increase in complaints, is due mainly to disputes over disclosure of the contents of complainants’ mobile phones. The volume of material emerging from digital records raises, however, a similar problem of how much of an alleged victim’s past should be revealed in court.

Victims’ organisations also allege that there has been a change in prosecution policy, a claim denied by the Crown Prosecution Service.