The second part of an in-depth summary of the Law Commission recommendations
The Law commission released a 700-page consultation paper in 2023, to which FACT responded. (FACT’s response to the consultation document in September, 2023 can be read here)
In Part One
In the first part (which you can read here), we covered the Law Commission’s recommendations concerning:
- Personal Records of the complainant
- Sexual Behaviour Evidence (SBE), and
- Previous Allegations of Sexual Offending
In this part, we’ll look at what they have recommended with regard to Criminal Injuries Compensation Evidence (CICE), Character Evidence, Independent legal advice for complainants, and the Right to Appeal decisions, concerning the above.
Criminal Injuries Compensation evidence
This is what the Law Commission wrote:
In Chapter 5, Criminal Injuries Compensation evidence, we consider the use of evidence that the complainant has made a claim through the government-funded Criminal Injuries Compensation scheme as a victim of a violent crime. We explain the risk of prejudice associated with the use of such evidence in the context of sexual offences, and conclude that it should be subject to restriction. We recommend that a structured discretion model, similar to that which we recommend for the regulation of SBE, should apply to Criminal Injuries Compensation evidence.
The recommendations
R23. We recommend that there should not be a complete prohibition on the admissibility of evidence that the complainant has made an application for Criminal Injuries Compensation.
R24. We recommend that evidence of a Criminal Injuries Compensation claim should only be admissible if:
(1) the evidence has substantial probative value in relation to a matter in issue in the proceedings that is of substantial importance in the context of the case as a whole (“stage 1”); and
(2) its admission would not significantly prejudice the proper administration of justice (“stage 2”).
For stage 1, we recommend that a non-exhaustive list of factors should be developed by government to aid in the assessment of the probative value of the evidence.
For stage 2, we recommend that the judge should consider the following factors when determining if admission of the Criminal Injuries Compensation evidence would significantly prejudice the proper administration of justice:
(1) protection of the complainant’s legal rights, including respect for the complainant’s private life and dignity;
(2) the interests of justice, including the defendant’s right to a fair trial; and
(3) the risk of introducing or perpetuating myths or misconceptions in the trial.
R25. We recommend that a similar procedure to that required under the framework for admitting sexual behaviour evidence should be developed for applications made to adduce Criminal Injuries Compensation evidence.
R26. We recommend that the admissibility framework for evidence of a Criminal Injuries Compensation claim should apply to evidence sought to be adduced, and questions sought to be asked, by both the defence and prosecution.
R27. We recommend that the judge should be required to provide written reasons for their decision on an application to adduce evidence of a Criminal Injuries Compensation claim, and that their written reasons should address all the factors under stage 2 they are required to consider
CICA evidence – our summary
As we know that the temptation of potentially a lot of free money with relatively little risk, will always be a temptation to unprincipled people, it cannot be denied by any sensible person that some false allegations will undoubtedly be made with this in mind. Of course, the pressure groups which initiated this report do not want such evidence to be used.
Unfortunately, as I have said previously, the Law Commission was too ready to believe the propaganda put forward by such groups (and, in turn the government) concerning apparent “rape myths’ and they considered mainly whether such use of Criminal Injuries Compensation Evidence (CICE) has increased and suggest that it might lead juries to believe supposed myths. There is little mention of the fact that some false accusers WILL be doing it for the money, despite the evidence. The fact that, when such compensation was dropped in Germany, the number of allegations dropped significantly shows that compensation is of interest when seeking to bring charges. Of course, some of those will have been genuine cases, but it showed how many were spurred to make allegations more for compensation than for justice.
Fortunately, the Law Commission did not propose a full ban on the use of CICE, just a limitation on when it could be introduced. As in other categories, the LC align its use with that of other disputed typed of evidence such as SBE (see Part One)
They quoted the Law Society’s view that, where, for example, the use of CICE highlight’s inconsistencies in the complainant’s testimony – e.g. if the complainant had proclaimed disinterest in compensation – then the defence should be able to use such evidence to undermine the complainant’s credibility.
Character evidence
This is what the Law Commission wrote:
In Chapter 6, Character evidence, we consider specific issues with the use of character evidence in sexual offences prosecutions. We examine the legal position where there is evidence that the defendant has engaged in previous misconduct, such as controlling or coercive behaviour, other forms of domestic abuse or sexual misconduct, but this misconduct has not resulted in a conviction. We recommend that there is no need to reform the existing legal framework governing the admissibility of this evidence. We also consider the differing positions of the admissibility of evidence of good character for defendants and complainants. We recommend that there should be no reform to the legal framework for admissibility of good character evidence for either defendants or complainants. Instead, we recommend that there should be an explanatory direction given to the jury when they have heard evidence of the defendant’s character, but no evidence in relation to the complainant’s character.
The recommendations
R28. We recommend that there should be no reform to the admissibility of good character evidence for defendants in sexual offences prosecutions.
R29. We recommend that there should be no reform to expand the admissibility of good character evidence for complainants in sexual offences prosecutions beyond the principles set out in R v Mader.
R30. We recommend that the Judicial College should consider whether the Crown Court Compendium should include an example direction to be given in a sexual offences prosecution where the jury has heard evidence about the defendant’s character, but has heard no evidence of the complainant’s character. The direction should explain why the jury has heard no evidence of the complainant’s character (because the defendant is the one on trial and not the complainant) and instruct the jury not to speculate.
R31. We recommend that the Judicial College should consider whether the Crown Court Compendium should include an example direction to be given where evidence of the complainant’s good character has been admitted in a sexual offences prosecution.
Character evidence – our summary
There is no real change to the status quo here as the LC suggests no real reform of existing frameworks, other than possibly regarding a judge’s directions to the jury.
CHAPTERS FOCUSSED ON PROCESS
Independent Legal Advice for Complainants
This is what the Law Commission wrote:
In Chapter 7, Independent Legal Advice for Complainants, we conclude that complainants in sexual offences cases should have a right to be heard when applications are made for the compelled production (both pre- and post-charge) of their personal records and the admission of their SBE. We also recommend that this right should be paired with independent legal advice, assistance and representation. The rationale for this is to ensure that these applications – which engage complainants’ privacy interests – are afforded greater scrutiny. Adequate public funding for these legal services is necessary to ensure that the benefits can be available to all complainants, and that their objectives can be achieved.
We make recommendations about the scope of independent legal representation (“ILR”). We recommend that ILR should include representation at court when applications for the admission of SBE and compelled production of personal records are determined, whether that is pre-trial or during the trial in the absence of the jury. We also recommend that the legal representative should have no role at trial in the presence of the jury. Additionally, we make recommendations with respect to the practical requirements necessary for independent legal advice (“ILA”) and ILR to operate effectively. We recommend that the complainant’s advisers and representatives should have access to documents necessary for them to provide full and rank legal advice, assistance and representation about applications relating to the admissibility of the complainant’s SBE and compelled production of their personal records. We also recommend that the complainant’s advisers and representatives should be permitted to engage directly with the police, prosecution and defence, and that only qualified legal professionals should be able to provide ILA and ILR.
The recommendations
R32. We recommend that complainants in sexual offences cases should have a right to be heard in respect of applications:
(1) for pre- and post-charge compelled production of their personal records; and
(2) to adduce evidence of their sexual behaviour.
We recommend that complainants in sexual offences cases should have access to independent legal advice, assistance and representation in respect of requests and applications relating to their personal records and sexual behaviour evidence.
R33. We recommend that independent legal advice and assistance should include, where appropriate, legal information leaflets, online and telephone advice and assistance, and in-person advice and assistance.
R34. We recommend that independent legal representation for complainants should include representation at court when applications for the admission of their sexual behaviour evidence and compelled production of their personal records are determined, whether that is pre-trial or during the trial in the absence of the jury.
R35. We recommend that the complainant’s independent legal representative should have no role at the trial in the presence of the jury.
R36. We recommend that independent legal advice and independent legal representation for complainants should only be provided by qualified legal professionals. We recommend that those providing independent legal representation for complainants in sexual offences cases should, at a minimum, be required to undertake the same mandatory training on myths and misconceptions that is required of prosecution and defence practitioners in sexual offences cases.
R37. We recommend that independent legal advisers and representatives should be permitted to access documents necessary to provide full and frank legal advice, assistance and representation relating to applications about complainants’ personal records and sexual behaviour.
R38. We recommend that complainants’ independent legal advisers and representatives should be permitted to engage directly with the police, prosecution and defence where necessary to provide full and frank legal advice, assistance and representation to the complainant.
Independent Legal Advice for Complainants – our summary
This largely concerns the rights of the complainant when it comes to their personal records and SBE. The LC recommend that the complainant should have provide for them free legal advice, which may include, leaflets, online advice, but also in-person advice. This could even include court appearances where the relevant matters are concerned, but only when a jury is not present. Of course, this would all have to be funded by the taxpayer.
Although one can appreciate the privacy concerns of (genuine) complainants, the costs potential costs for appearance by lawyers at court could be large and the extra funding for this would be yet another drain on an already greatly underfunded justice system. It also adds to the harm done when an accusation is false and another reason why, if such allegations are so proven, the false accuser should be prosecuted.
Another suggestion is that, not only must such advisors be qualified legal professionals, but that they should be “required to undertake the same mandatory training on myths and misconceptions that is required of prosecution and defence practitioners in sexual offences cases.” This of course, begs the question: “who provides the information on myths and misconceptions?” How can we be sure that he information is genuine and not propaganda. After all, the Law Commission’s consultation paper itself propagated the erroneous information that false allegations are rare, even though the very references they quoted to support their statement actually contradicted that notion.
Right of Appeal
This is what the Law Commission wrote:
In Chapter 8, Right of Appeal, we recommend that complainants in sexual offences prosecutions should be able to appeal a ruling on the admissibility of their SBE that is made at a preparatory hearing. This right of appeal would be equivalent to the same 19 limited right of appeal that a defendant or the prosecution have against such decisions, and would ensure greater scrutiny of those applications when they arise. We also recommend that complainants should have a right to ILA and ILR when they have a right to appeal a judicial ruling relating to their SBE.
We reject extending a right of appeal to complainants in respect of applications relating to their SBE and personal records that are made at other points. We also reject making better use of preparatory hearings in sexual offences prosecutions to decide SBE and personal records applications. We note that the Law Commission is currently undertaking a project on criminal appeals. Having taken a holistic view of the impact on the entirety of the criminal appeals system, we consider whether further expansion of this right is warranted.
The recommendations
R39. We recommend that a complainant who has a right to be heard on an application concerning the admissibility of evidence of their sexual behaviour should have the same right to appeal a decision on such an application as is afforded to the prosecution and defendant, where that decision is made at a preparatory hearing.
We recommend that a complainant who has a right to be heard on a public interest immunity application relating to the disclosure of their personal records should have the same right to appeal a decision as is afforded to the prosecution and defendant, where that decision is made at a preparatory hearing.
R40. We recommend that a complainant should have access to independent legal advice and representation when they have a right to appeal a judicial ruling relating to evidence of their sexual behaviour.
Right of Appeal – our summary
The LC recommended that the complainant should have a right of appeal, including independent legal advice & representation, where appropriate, in matters concerning personal records or SBE, when dealing with decisions made at a preparatory hearing, but not at other occasions.
The LC mentioned the ongoing review of the appeals system which led them to take a more holistic view of whether an expansion of this right is justified.
Part 3 will deal with special measures provided for the complainant to “Assist with Giving Evidence”; and the subject or Juries.
Links
You will find links below to the Law Commission’s original consulation document, FACT’s response to that, the Law Commission’s Final report, and Part One of this review
