Vera Baird DBE KC

Writer, Lecturer, Parliamentary Consultant and Co-Director of Astraea: Gender Justice

Speech to Freshfield’s Africa Gender Justice week

As Solicitor General in the Labour Government, I was able to input into the criminal justice system through my joint role with the Attorney General in having overview and superintendence of the Crown Prosecution Service. The focus of what I will say is on sexual violence since you have had some presentations on domestic violence.
We worked hard to increase reporting of sexual violence to the authorities and to improve conviction rates; to ensure that victims are supported, that the criminal justice responds well and through signalling from our criminal justice work as well as engaging other government departments on this topic, turned to tackling prevention. Work needs to continue
In my view and that of Baroness Stern who did a recent report on the way the public authorities deal with rape, there is no urgent need for more legislation or policy enhancement because there is much of what we did which still needs to reach the frontline.
The problem we face is huge
Three million women across the UK experience rape, domestic violence, forced marriage, trafficking for sexual, servitude and prostitution, all of which involve rape or sexual assault.
The total annual cost of violence against women is estimated to be £40billion per year. Costs to the CJS costs to the health service, lost days at work or working at poor capacity because of trauma, damage to business from that debilitated input.
Violence against women is a consequence of gender inequality and also a cause of it continuing.
Work to encourage women into highly paid jobs, to get better careers advice, develop part time work opportunities, pursue equal pay are all at naught for 3 million women who suffer domestic violence or rape by a possessive husband or on a date. Their futures are then  seriously  jeopardised by trauma.  Violence against women has a devastating effect on victims.
There is another way in which sexual abuse damages women. I chaired The Fawcett Commission on Women and the Criminal Justice System and we found that about a third of women offenders have been raped, almost twice as high as in the general population. About half had suffered domestic abuse, twice as high as in the general population. Experiences of violence and abuse can be a key factor in women\’s pathways to crime; if the issue is not addressed early enough by health and support services, and by the justice system righting the wrong, we can do little to support such women to stop offending. We doubly wrong those women we haven’t, historically, supported to make early complaints and then go on to imprison when their trauma drives them into chaotic lifestyles and crime, usually repeat low-level financial offending.
All of these consequences can follow and yet in a criminal case it is easy for a jury to think that because there is no visible injury it either may not have happened or it doesn’t much matter if it did. And there are cultural assumptions made about the way sexuality works which can be adverse to fair consideration of cases. There are a lot of damaged lives that make it imperative to protect future women and we must all work optimally against the appalling impact of rape.
To try to help we have made many changes. I regard our changes to the law as having been to tilt the law more upright, when it has historically tilted towards the defendant and against the complainant.
In 1998 we removed much of the right to cross examine about previous sexual history. The legislation has not worked perfectly, the main gap being that someone can use previous sexual history to show what caused his state of mind, i.e., did he reasonably think that she was consenting. (“Yes I did because this is the evidence she is a known tart” is the rationale.)
It is only excluded from any attempt to demonstrate her state of mind. (“She was more likely to be consenting, because this is the evidence that she usually does”)We need to fill that lacuna soon.
However, Judges do say that the intellectual steps that the legislation requires them to take before considering admitting previous sexual history has made them analyse the evidence more carefully and some say they have made decisions against admitting previous sexual history which they would otherwise have let in.
We also changed law set out in the 1975 case of Morgan. For more than 30 years it was the law that even if everybody agreed that she had suffered forced sex without consent, it didn’t matter if he, however unreasonably, thought at the time that she was consenting. From 2003, a claim that he believed she consented has to be reasonable before it can be a defence. In hope that, in particular, that has given police more to put to a suspect in interrogation. Instead of a standoff where the officer asks why he thought she consenting and the suspect just repeats that he did, There is now a supplementary question which is – do you think that it was reasonable to think that she was and/or that any reasonable person will think that it was.
So we have made changes to the law. At about the same time, the Joint Thematic Inspection of the Investigation and Prosecution of Rape, by the Police and CPS Inspectorates, in 2002 was comprehensively critical of the way in which the authorities dealt with rape. Specific finding included that about 78% of detectives investigating rape allegations did not send any DNA sample obtained from the complainant to the national database if the parties knew each other, presumably because they thought in such a case the accused would not be a criminal; many statement takers asked complainants   about their previous sexual history when there was no need to do and multitudes of cases were no-crimed where there was a criminal allegation that officers did not think would produce a conviction.
We had to look at ATTITUDES now rather than the law. A report by Amnesty in 2005 showed that 70% of people asked thought woman who flirted, wore a short skirt, or drank alcohol was responsible if she was raped.  And these attitudes, the Inspectorates made clear, were reflected in professionals attitudes – as above – and in those of juries.
It is possible to train professionals out of those attitudes. There has been an enormous amount of input. There are specialist officers and there is, additionally, training for all officers in the dynamics of rape; the CPS have brought in specialist rape prosecutors, and if a case is to be discontinued, a rape case cannot discontinue it without the confirmation of another specialist rape prosecutor. The vulnerability of complainants is such and their understanding:
1. of these attitudes and
2. that the conviction rate is 6%
is such that it takes only one eyebrow raised in askance or one sceptical question for a complainant to lose confidence, feel that she is trying to climb a mountain of prejudice alone and that she should withdraw. It isn’t easy to ensure seamless support from professionals who are fully onside. However, you are excellent examples of how training and specialisation have made a difference
But all that professional training is of no effect if we cannot get women to go to the police, in the first place. And so we had to look too at how to make clear to all that there is support from the start. So we built SARCS, Sexual assault Referral Centres, the Rolls Royce model of how to care for rape victims, non-judgmentally, as if a complainant is a patient. She will be examined by a sex offences specialist forensic medical examiner, where possible. If she wants to complain it will be a rape specialist police officer who comes. It is an unlike as possible to what used to prevail, namely that she would have to go to a police station, make her complaint through a glass from a, perhaps full, waiting room, get a local detective, with no rape-specific skills or experience and, often much being examined by an FME, who could have just certified someone dead at a road traffic incident or declared a withdrawing heroin addict as fit to be detained.
In Government, we recently announced funding of £1.6million for new and existing SARCs. There are 29 now and we had intended, had we stayed in office to ensure that there was one in each of the 43 criminal justice areas by 2011.
We also aimed to ensure that all victims should have access to an Independent Sexual Violence Advisor by March 2011. They are befrienders, who give support to the complainant from the start of the process to the end, not only with the case but with any contact she needs to have with the statutory authorities and others, for instance about leave from work or rehousing. And they are independent of CPS or police targets which is important to gain the trust of complainants.
We sustained the funding for the invaluable work of the sexual violence voluntary sector.
Sara Payne, until recently the Victims Champion, was asked as part of the consultation on a Violence Against Women strategy,to talk to rape complainants. Sara’s report is called Rape – The Victim Experience.
She found that women  wanted:
•    To be believed
•    To be treated with dignity
•    To be reassured that it was not their fault
•    To feel safe and comforted
•    Not to feel like a ‘victim’
•    To have services that support them and their family
•    To feel in control
•    To be able to make informed choices

So we have tackled attitudes in professionals and supported women to go forward despite fears about the impact of just those attitudes. So we turned, next, to the attitudes of the public at large.
How to tackle those views that women who flirt are asking for it; women who drink are after it and only complain when they sober up later; that men can’t control their sexuality once they are roused and that rape is usually committed by a stranger in a dark alley using violence and threats?There would have to be a major public education campaign.
We / I decided that the speedier approach was to try to bust those myths and others like them for jurors, that is for that section of the public whose attitudes really mattered at the critical time of the criminal trial.
For this we needed the help of the judges, – judicial directions form the framework in which jurors come to their verdict. However, where were the judges on this? Did they understand that there were myths. Did they share the attitudes disclosed by the Amnesty survey?
There is every reason to tell the judges about how to understand what might be counter-intuitive behaviour but the endgame must be to ensure that this wisdom is passed onto juries. Jurors are members of the public, likely to share the attitudes found in the Amnesty report.
We are all aware – as an example – there is a myth that if someone is raped they will complain to the first person they come to or run straight to the police. If a complainant does not do that, the defence will usually suggest that she was happy to have sex at the time but something made her change her mind later.
In other words, the defence say that a late complaint is a false complaint. Of course we know that it is common for women who have been raped not to report the matter at once because they are traumatised, full of guilt and shame, questioning their own judgement about being with the man in the first place. Jurors do not know this.
In a case called Doody, just such a defence was put forward and the judge, who had been on the Serious Sexual Offences course gave a direction to the jury that it was the general experience of the courts that women did not complain at once, for the reasons I have summarised. The defendant was convicted and appealed on the basis, essentially, that the trial judge had been giving evidence about why women may not complain at once.
However, the Court of Appeal was clear that trial judges should direct a jury in an appropriate case that although a late complaint may be an untrue later invention,it is the courts’ experience that complainants do not complain immediately. Such directions come from the courts’ long experience of factors that may not be apparent to a jury fresh to the issues and on which they need guidance in order to avoid misapprehensions that could lead to miscarriages of justice.
These directions need to be well-known to the professionals who are preparing cases. If police or CPS think that a claim that a late complaint is untrue will be accepted by a jury, they may not hold out much hope of conviction, but if there is an antidote to that myth, that can not only put forward by the Crown but also supported by the Judge at trial, the same police and CPS may feel that such a case is worth fighting.
However, it would take many years before cases got to the Court of Appeal which dealt with all the myths that are capable of influencing rape trials. So we had to be more systematic. I brought together a panel of experts to work out all the myths that they believe have effect in rape trials. They were a psychiatrist and a doctor from a  SARC, and two distinguished academics who carry out mock jury research into rape, This group listed the myths their experience told them were influencing trials. I then asked senior barristers to draft possible directions which judges could use to bust these myths.
It was always entirely a question for the judges, who are rightly jealous of their independence and control their own training, to decide whether they accepted the argument about these directions and adopted any or all of them.
However I am pleased to say that they have taken on most of them and I am indebted to the Lord Chief Justice and his Deputy who were ready to consider this initiative. However I do need to repeat that it is only a partial success unless police officers and prosecutors learn about this directions so that they know that they can rely on them and do not exclude from prosecution cases in which there are facts which give rise to rape myths which will now be dispelled by the trial judge.
So that is how we changed the law, tackled negative attitudes in the criminal justice agencies, gave complainants support and worked towards educating juries about they dynamics of rape so that they can understand it and be as fair as they wish to be.
There is nothing to be complacent about. The conviction rate is moving upwards from the old figure of 6% and is now probably 8%, an apparently small increase but one that is a great relief compared to the decrease that has characterised the last decade or more. Twice as many people are reporting rape in the last four years, which does not mean there is an epidemic rather it suggests that we have made it easier for women to do so. Twice as many men are being convicted of rape and the conviction rate of cases that go to court is 58%, less than for most other assaults but not catastrophically so.
So as I said at the outset there is probably no urgent need for significant change. What is needed is to ensure that all the changes we have brought about are pushed down to the frontline consistently so that rape complainants get a good wraparound service from complaint to conviction.