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Supporting vulnerable witnesses through the Criminal Justice Process - 26 Feb 2015

26/02/2015

Speech by Alison Saunders, Director of Public Prosecutions, St. Mary's Centre 13th Annual Conference 2015

Introduction

Good afternoon. I am delighted to be here again at this important event.

Since I was here a year ago the CPS has done a great deal of work on the crucial issue of rape, as well as wider work to better support all victims of crime.

On rape specifically we have worked jointly with the police to develop - and then implement - a National Rape Action Plan.

The action plan was drawn up after the drop in reported cases of rape referred by the police to the CPS in 2012-13. The number of cases charged has since turned around but ensuring we deliver the absolute best we can in cases of rape is a long term endeavour - and one which we are fully committed to.

In all the work that we do, one thing is absolutely clear - the value of sexual assault referral centres and Independent Sexual Violence Advisors.

That obviously applies to the important work you do with victims, but it also applies to the assistance you provide to improve the wider criminal justice system. Working with SARCs, ISVAs and victims groups, such as Rape Crisis, has been vital in informing our work on this issue.

Thank you.

I have been asked to speak today about supporting vulnerable witnesses through the criminal justice system.

For many victims and witnesses, that system is an alien and forbidding landscape.

For the most vulnerable, there are significant barriers to justice and we all need to do everything possible to ensure they are appropriately supported.

I am going to talk about three aspects of our work which I believe will make a real difference for vulnerable victims and witnesses. They cover the different stages of a criminal case in which the CPS is involved:

  • Firstly, providing practical guidance to police officers and prosecutors on how to assess and address vulnerability at the investigation and case building stage;
  • Secondly, ensuring victims and witnesses are provided with the right support to enable them to give their best evidence;
  • And thirdly, providing better information to victims and witnesses at court.

I should say here that I use the word "victim" because when someone goes to the police they feel they are a victim of crime and I am happy to respect that. There is, of course, no presumption of guilt and whether someone is legally a victim of a specific crime by a specific person is for a court to decide.

Vulnerability in case building

In the first instance, it is important that as we build our cases, we assess the needs of a victim or witness on an individual basis - without being influenced by or relying on pre-conceived or stereotypical notions and assumptions.

To this end, we have been working very hard to improve the guidance available to our staff and to the wider public generally, and last month we published a new toolkit for prosecutors dealing with all cases of violence against women and girls (VAWG) involving vulnerable victims.

The toolkit emphasises that effective case building and prosecution requires early consideration of the credibility of the overall allegation, rather than a focus solely on the victim or witness. This should be with the intention to address head-on, any issues relating to vulnerability - for example, inconsistencies which might be viewed as a lack of credibility - and in order to support, rather than undermine the case.

The ability of a victim or witness to give a clear and coherent account will depend upon their powers of recall and/or concentration, their understanding of the events and their ability to communicate.

Accordingly, before making a decision not to treat a vulnerable witness as being able to give credible or reliable evidence, it is important that prosecutors take all practicable steps to support them to provide their account, and look to gather other evidence in support.

The new toolkit sits alongside our offence-related guidance, ensuring a consistent approach to the evidential and public interest stages of the Full Code test, in the Code for Crown Prosecutors. It encourages our prosecutors to explore the extent of the victim or witness' vulnerability, and to consider the possibility of adducing information from psychologists and other professionals to explain behaviour related to the impact of the offending.

Prosecutors are also encouraged to refer to Mind's Mental Health Toolkit for further guidance on issues such as:

  • Common diagnoses, symptoms and experiences of mental distress;
  • The impact of lower level' mental health issues on the ability to give evidence;
  • Possible side effects of medication such as anti-depressants; and
  • The types of triggers which can cause or exasperate mental health issues or distress.

Rape/Consent

The need for our prosecutors to carefully assess and address vulnerability is of course particularly important in the context of rape and sexual offending, where cases often turn on the issue of consent, or involve the conflicting accounts of the complainant and the suspect.

To this end, alongside the toolkit on vulnerability, as part of the National Rape Action Plan, the police and CPS have also developed other materials specifically concerned with consent in rape cases - including toolkits for prosecutors and a public-facing leaflet.

The toolkits emphasise that someone consents if she or he agrees by choice and has the freedom and capacity to make that choice.

The capacity to consent can be affected by, for example, the influence of drink or drugs, or a condition or disability.

And freedom to consent can be affected by a position of power, age or dependence, such as in domestic abuse scenarios.

Our focus on this issue has started a real debate, which I welcome. There has, however, been some misunderstanding of the approach we are taking, with suggestions that I was changing the law and shifting the burden of proof.

If the law had changed and the burden of proof for sexual offences now lay with the alleged offender to prove his or her innocence, I would have been among the first to stand up and oppose such a move.

I would have agreed that placing the onus on a man to prove, in the courtroom, a woman's consent to sex is not the way to increase rape convictions and is a reversal of the fundamental principle of our legal system - that you are innocent until proven guilty. But that is not the case.

I would have agreed that to imply that people must get a time stamped signature on a bedroom contract before disrobing was not only misguided but utterly unrealistic.

The law on rape has not changed and nor has the burden of proof. As ever, once all the evidence has been gathered, it remains for the prosecution to prove that the victim did not consent, or have the freedom and capacity to do so, and that the suspect did not have reasonable belief that the victim had consented.

I did say that I thought society is confused about consent. I still believe that, and I think that the debate which has been going on in recent weeks is a firm step forward on the road towards clarity. There are many people who do believe that women who drink are guilty of, at the very least, putting themselves in danger; that a man has a green light to sex unless he is explicitly told "no" or physically pushed away. That is not what the law says. The law has been clear since being redefined in the Sexual Offences Act 2003.

As well as clearly addressing the issue of freedom and capacity, the law also states that if a suspect can show that they had reasonable belief that the other party consented then the offence of rape is not made out.

Logic dictates that in order to establish what the suspect's reasonable belief might be then investigators will want to question the suspect on what it was that assured him the sexual activity was consensual.

The new toolkits on consent make this clear, highlighting that when considering consent issues, in addition to examining the actions of the complainant, we will also examine the steps taken by a suspect.

I am confident that this approach will guarantee a more balanced consideration of the accounts of both the suspect and the complainant and help a fuller picture to be presented to the court in these difficult and sensitive cases.

False Rape allegations

In addition to these important materials, our guidance for cases involving allegedly false allegations of rape and/or domestic abuse will soon be updated based on the work we have done on this issue for many years.

Research from the CPS published in March 2013 showed that false allegations are very rare when compared to the total number of rape cases prosecuted. Over the seventeen month period considered by the review, there were more than 5,600 prosecutions for rape but only 35 for making a false allegation.

As with our approach to the vulnerability of victims and witnesses, we will also emphasise the need to take into account the vulnerabilities of the suspect under consideration. These might include mental health issues, learning difficulties, age, maturity, and substance misuse issues.

Accordingly, prosecutors must ensure they have sufficient information about the suspect's vulnerabilities so that decisions are properly informed. This may involve taking proactive steps to obtain medical or other evidence on the issue.

In a recent case, issues were raised over whether a private prosecution for PCJ should be allowed to be continued and continued to be prosecuted by the private prosecutor. Our options when we had considered the evidence was to allow it to continue or take it over and prosecute ourselves. I have made it clear to prosecutors that, where the allegation in question arises out of an alleged false claim of rape, it would be an exceptional course for it to be left in the hands of the private prosecutor.

This will allow us to ensure that these incredibly complex cases are dealt with by specialist rape prosecutors, who can fully consider and understand the vulnerabilities of those involved.

Provision of the right support

The CPS' consideration of the needs of victims and witnesses - particularly those who are vulnerable - does not only affect our charging decisions.

There are a number of measures to support vulnerable and intimidated witnesses to give their best evidence in court, such as the use of screens, the use of live video-link and the use of intermediaries to facilitate communication.

However, if we are to ensure the right type and level of support it is important that the needs of victims and witnesses are identified as early as possible and are reviewed regularly as the case progresses.

Accordingly, our prosecutors are encouraged to be upfront but sensitive, and to facilitate early discussions with the victim or witness, using clear and simple language to investigate and understand their needs. In addition - subject to the appropriate permission - prosecutors may speak to a family member, carer or health professional, in order to better identify needs.

We are also working with HM Courts and Tribunals Service and the Ministry of Justice to pilot the use at trial of pre-recorded cross-examination of vulnerable witnesses - those under 16 years of age and/or those with a mental or physical disorder which is likely to result in their evidence being diminished.

This allows witnesses to give evidence closer to the time of the offence rather than waiting for the full trial, and helps reduce some of the anxiety of giving evidence to a court.

You will be hearing more about this from Judge Aubrey, who is speaking next.

Speaking to Witnesses at Court

Finally, I believe that there is more we can do to explain our decisions and assist witnesses so they know more about what to expect before they give evidence.

In the past, prosecutors have sometimes been reluctant to engage with victims and witnesses before a hearing, for fear of being accused of coaching. However, victims and witnesses did not ask to be put in this position, and we, as prosecutors, have a duty to ensure that they are informed and involved at all relevant points in the progress of the case.

Accordingly, we are currently consulting on new guidance about what victims and witnesses can expect from a prosecution advocate.

The guidance sets out the role played by prosecutors in ensuring that witnesses can give their best evidence and explains the difference between assisting a witness to better cope with the rigors of giving evidence and witness coaching, which is not permitted.

This will herald a significant change in both the practice and culture of our prosecutors.

At court, we want all of the services to work together to ensure that the victim is looked after and kept well-informed from the moment of arrival at court until they leave.

Prosecutors are expected to make themselves available to speak to victims at court, wherever possible, and they should take time to explain decisions that we take. They should also seek the victim's views in coming to decisions on, for example, changes to the charge for the defendant.

In addition, I believe that victims and witnesses should be aware of what information has been disclosed to the defence in advance of giving evidence. This can sometimes be very personal information about, for example, their medical history or their interactions with social services.

If this information could be used in a cross-examination then we, as prosecutors, should make sure that victims and witnesses know it might happen.

The consultation closes on 16 March 2015, and I would very much welcome your views.

Closing

Ultimately, victims and witnesses are much more likely to be able to give their best evidence and feel they have been treated with respect if they understand:

  • What to expect;
  • What is expected from them;
  • The process and its implications.

This applies particularly to vulnerable victims and witnesses - and to those who have suffered sexual violence.

I am proud to lead an organisation that is committed to delivering justice for victims and witnesses and I am determined that during my time as Director of Public Prosecutions we will improve the service we give to these vital participants in the justice process.

Thank you.

Ends

Notes to Editors

  1. For media enquiries call the CPS Press Office on 020 3357 0906; Out of Hours Pager 07699 781 926
  2. The CPS consists of 13 Areas in total, each headed by a Chief Crown Prosecutor (CCP). In addition, there are three national casework divisions: Specialist Fraud (formerly Central Fraud and Welfare, Rural & Health Divisions), Special Crime & Counter Terrorism and Organised Crime. CPS Direct is a 'virtual' 14th Area which provides charging decisions to all police forces and other investigators across England and Wales - it operates twenty-four hours, seven days a week, 365 days a year.
  3. At 31 March 2014 we employed a workforce of approximately 6237 staff (full time equivalent), including around 2226 prosecutors and 3629 caseworkers and administrators. Further information can be found on our website:  www.cps.gov.uk.
  4. The CPS, together with ACPO and media representatives, has developed a Protocol for the release of prosecution material to the media. This sets out the type of prosecution material that will normally be released, or considered for release, together with the factors we will take into account when considering requests. Read the Protocol for the release of prosecution material to the media.