An in-depth summary of the Law Commission recommendations
Why the report was commissioned and by whom
For several years, there has been a growing number of complaints from so-called “victims groups” and women’s organisations about the low (in their view) percentage of convictions of sexual offences, and growing pressure on the government to do something about it. This led to an “End-to-End Rape Review” by the government which led, in turn, to this review by the Law Commission.
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)
Though the Law Commission paper always maintained that the interests of justice and fair treatment for defendants, we were concerned that the tone of the paper clearly represented an eagerness to represent the concerns of the groups who had brought it about; it referred, unquestioningly, to the ideas concerning “rape myths”, for example, while quoting some false ‘facts’ which we at FACT know to be myths themselves.
So, although we will always sympathise with genuine victims of sexual assault, we were worried that the interests of potentially innocent people accused of such crimes would be minimised and the overarching responsibility to protect the innocent before convicting the guilty would be swept aside.
So what did they recommend in the final report?
The final 600 page report, contained some background information, explanation of their recommendations, with some reference to the opinions expressed in response to their Consultation document, and 72 recommendations, split into 12 chapters, plus an extra chapter without specific recommendations. Summarising this cannot really be done with any depth in a single blog post; so we will split this into several parts; the combined posts will, of necessity, be quite long, but a great deal less than wading theough the full 700 page report!
For each chapter, as a brief assessment, we will quote the Law Commission’s own summary in the report. We will also quote the main recommendations. In many cases, the first recommendation on a topic is followed by others which expand on details of the first. In those cases, we will only quote the first but we will leave a link to the full report. Then we will, mostly at least, add our own summary to each chapter.
PART ONE – Personal Records, Sexual Behaviour Evidence and Previous Allegations
The first twenty-two recommendations deal with Personal Records (mainly of the Complainant, Sexual Behaviour Evidence (of the complainant) and any Previous Allegations of Sexual Offences made by the Complainant.
Much of the discussion had been on whether there is justification for some aspects of the way Sexual Offence Cases being treated differently from other cases. The conclusion was that, in some areas, there is justification for a difference in approach – this difference is referred to as a ‘bespoke regime’.
Personal Records
This is what the Law Commission wrote:
In Chapter 2, Personal Records, we conclude that a bespoke regime for complainants’ personal records in sexual offences cases (including all of its constituent parts namely, procedures, and thresholds) should focus on access and compelled production. We focus the regime in this way to provide safeguards to complainants for the vast majority of instances where the evidence base suggests there are intrusions into their privacy rights. We further conclude that there should be a statutory framework for requests for access and production of personal records, accompanied by a code of practice and guidance. Such requests must meet an enhanced relevance threshold, with judicial scrutiny reserved for compelled production pre- or post-charge.
Our recommended threshold is part of a structured discretion model. It is made up of two limbs; the evidence must be likely to be relevant to an issue at trial or to the competence of a witness to testify; and access/production must be necessary in the interests of justice, with detailed factors to guide determinations of the latter. These factors are tailored to the particular considerations that arise in relation to the use of personal records in sexual offences cases, and they will assist decision makers in identifying issues that may be currently overlooked. The factors also guide decision makers about how to determine fair trial rights and privacy interests.
The aim of our regime is to fill a procedural gap and to offer greater clarity to parties via a formalised statutory framework. Where the complainant and/or the record holder dispute the basis or scope of a request, they will be able to insist that the police or prosecution apply for a court order to obtain access, without fearing that an investigation or prosecution will be prematurely terminated. The complainant will also have a right to be heard and to receive legal advice and representation in respect of such requests and applications.
We recommend that the bespoke regime should apply to records held by a professional third party in which the complainant has a reasonable expectation of privacy. We are of the view that a regime focused on therapy records is too narrow and fails to take account of overlapping information contained in therapy records and other records.
We reject absolute prohibitions on accessing pre-trial therapy or complainant-support records because of the risk that this will deny the defence access to information necessary for a fair trial. We take the view that the unique considerations that arise when considering requests to access or produce such records will be accommodated by the threshold and factors.
Recommendations Regarding Personal Records
R1. We recommend that for access by and compelled production to the police or prosecution, personal records held by third parties
(1) must be likely to be relevant to an issue at trial or to the competence of a witness to testify; and
(2) such access and production must be necessary in the interests of justice.
R2. We recommend that a judge should continue to be responsible for deciding whether personal records held by third parties should be produced via compelled production to the police and prosecution.
R3, 4. [combined & paraphrased] We recommend that prior to charge, [or post-charge] if the complainant refuses consent to access [to their personal records held by third parties], then police and prosecutors should be permitted to apply to the court for an order for personal records held by third parties to be produced.
R5, 6 [combined & paraphrased] We recommend that there should not be a complete prohibition on access, disclosure or admissibility of pre-trial therapy or support records.
R7. We recommend that the regime regulating access and compelled production of personal records should apply to records created by a professional third party or the complainant which are held by a professional third party, in which the complainant has a reasonable expectation of privacy.
R8. We recommend that medical records related to physical evidence directly associated with the events that are the subject of the criminal complaint should fall outside of the bespoke regime and should remain within the existing general framework.
R9. We recommend that if there is a criminal complaint about a professional’s interactions with the complainant, where the complainant’s personal records are a contemporaneous record of the allegation, this part of the records should fall outside of the bespoke regime and should remain within the existing general framework
R10. We recommend that, where the complainant’s personal records concern the complainant’s recent complaint, namely a complaint made by the complainant about conduct which would, if proved, constitute the offence or part of the offence, this part of the records should fall outside of the bespoke regime and should remain within the existing general framework.
R11. We recommend that the Government consider the following matters:
(1) whether in sexual offences cases, defendants’ personal records are currently disproportionately sought by the police/prosecution;
(2) whether the current framework for accessing defendants’ personal records is insufficient; and
(3) whether our recommended personal records regime should be extended to defendants’ personal records (adapted to the particular considerations that arise for accessing defendants’ records).
R12.We recommend that there should be a statutory code of practice to accompany our statutory framework explaining our recommended threshold and procedures, and the duties of the parties and the police.
Personal Records – our summary
It was to be expected that some protection would be given to Complainants to pacify their concerns of personal records being sought, wholesale, whether they are relevant to the case or not. The recommendations provide a framework for access to such records, decisions to be made by a judge. Access to such data form the complainant or third parties may be obtained via the use of court orders where necessary. Importantly, for the defendants, an outright prohibition on therapy or support records, and some types of information are not included in the bespoke regime but follow current general guidelines.
Sexual Behaviour Evidence (SBE)
This is what the Law Commission wrote:
In Sexual Behaviour Evidence, we recommend a new structured discretion model for regulating the use of sexual behaviour evidence in trials. We recommend a two-stage framework that prohibits the use of SBE unless (1) it has substantial probative value in relation to a matter in issue in the proceedings, which is of substantial importance in the context of the case as a whole, and (2) its admission would not significantly prejudice the proper administration of justice.
We also make recommendations about factors that will help guide the discretion, supporting the model in producing more consistent, clear, and principled decisions. This includes consideration of the risk that the evidence will introduce myths and misconceptions, and the complainant’s legal rights, including their right to privacy. To reflect the purpose of “rape shield legislation”, we also recommend that the legislative framework should include an express prohibition on SBE where it seeks solely to support an inference that, by reason of the sexual nature of that activity, the complainant is less worthy of belief.
We also make recommendations that would extend the scope of the SBE regime to apply to SBE in criminal trials for all witnesses, whoever is seeking to adduce it, and in whatever context it arises. We recommend judges be required to provide written reasons to further improve consistency, clarity and scrutiny of decision making in this challenging area.
Recommendations Regarding Sexual Behaviour Evidence
R13. We recommend that there should not be a complete ban on the admission of sexual behaviour evidence.
R14. We recommend that sexual behaviour evidence should only be admissible if:
(1) the evidence has substantial probative value in relation to a matter in issue in the proceedings, which 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”).
[Other sub-clauses make further points re: Stage 1 and Stage 2 factors]
R15. We recommend that relationship evidence that is relevant as explanatory or background evidence only should not be within the scope of any framework that restricts the admissibility of sexual behaviour evidence.
R16. We recommend a prohibition on sexual behaviour evidence where it seeks solely to support an inference that, by reason of the sexual nature of that activity, the complainant is less worthy of belief.
R17. We recommend that the framework for admitting sexual behaviour evidence should apply to sexual behaviour evidence sought to be adduced, and questions sought to be asked, by both the defence and prosecution.
[R18. concerns a recommendation that the Government consider whether the proposals for admitting sexual behaviour evidence should also apply to other cases, which are not primarily sexual offence cases]
R19. We recommend that the judge should be required to provide written reasons for their decision on an application to adduce sexual behaviour evidence, and that their written reasons should address stage 1, stage 2, and all of the factors under stage 2 they are required to consider.
R20. We recommend that the prosecution should be required to inform the complainant about an application to adduce evidence of or ask questions about their sexual behaviour, once that application is made (and not wait for the outcome of the application) unless:
(1) telling the complainant at that stage would interfere with the investigation;
(2) the complainant does not wish to be told then or at all; or
(3) there is a risk of harm to the complainant or another if they are told.
Sexual Behaviour Evidence – our summary
The main concern with this topic was to prevent the use of the Complainant’s sexual history to undermine their credibility, either as a witness or as a victim.
There is already a framework in UK law to prevent the unjustified use of “bad character evidence” but these recommendations sought to clarify the specific use cases in SO prosecutions.
As with “bad character” evidence, the recommendations do NOT include an outright prohibition on sexual behaviour evidence, just a control on the circumstances under which it can be adduced.
Previous Allegations of Sexual Offending
This has similarities to the SBE section above and shares some recommendations.
This is what the Law Commission wrote:
In Chapter 4 Previous allegations of sexual offending, we consider the way that evidence of previous allegations by the complainant of sexual assault is regulated. We examine first, evidence of a previous allegation sought to be adduced for its falsity (which we call false allegation evidence), and secondly, evidence of a previous allegation where the defence are not suggesting it was false. We conclude that evidence of a previous allegation should be regulated by the SBE framework where the evidence sought to be adduced, or questions sought to be asked, fall within the necessarily broad definition of “sexual behaviour”.
We also conclude that there remains a role for the framework regulating the use of evidence of the bad character of a non-defendant where evidence of a false allegation does not fall within the definition of “sexual behaviour” but is being used as evidence of misconduct. In such cases, we recommend that the court must have regard, when considering the admissibility of false allegation evidence under the bad character framework, to the risks of the evidence introducing myths and misconceptions.
We consider the particular risk that myths about the prevalence of false allegations of sexual assault can improperly impact the way that false allegation evidence is assessed in sexual offence trials. To help ensure “falsity” is properly interrogated, we recommend that, on their own, the following should not constitute a “proper evidential basis” that a previous allegation of sexual offending is false: raising and not pursuing a complaint; a decision to take no further action, not to charge or not to prosecute; and acquittal.
Recommendations regarding Previous Allegations of Sexual Offending
R21. We recommend that the admissibility of evidence of, or questioning relating to, an allegation by a complainant of sexual assault not the subject of the trial should be considered:
(1) under the sexual behaviour evidence framework when any aspect of the evidence or questioning falls within the definition of “sexual behaviour” (currently in section 42 of the Youth Justice and Criminal Evidence Act 1999); or
(2) where no part of the evidence or questioning falls within the definition of “sexual behaviour” either:
(a) under the bad character evidence framework (currently in section 100 of the Criminal Justice Act 2003) where the allegation is sought to be adduced as evidence of misconduct; or
(b) absent any question or suggestion that the complainant misconducted themselves in relation to the allegation, under the general relevance threshold.
We recommend that when considering whether evidence of an allegation sought to be adduced as evidence of misconduct in a sexual offences trial meets the criteria for admission as bad character evidence for a non-defendant under subsections 100(1)(a) or (b) of the Criminal Justice Act 2003, the court must have regard to the risk of the evidence introducing or perpetuating myths and misconceptions in the trial.
R22. We recommend that, on their own, the following should not constitute a “proper evidential basis” that a previous allegation of sexual offending is false:
(1) raising and not pursuing a complaint;
(2) a decision to take no further action, not to charge or not to prosecute; or
(3) acquittal.
Sexual Behaviour Evidence – our summary
The Law Commission recommends using the same criteria as that for “bad character / SBE” where relevant. They warn of such “bad character” evidence potentially introducing myths and misconceptions, but they do not specify what such myths might be.
Where a defendant is claiming that the Complainant has made previous “false allegations”, the LC is pointing out that the No Further Action (NFA) responses by the police, decisions by the CPS not to prosecute or an acquittal of the defendant in any previous allegations, do not constitute proof of falsity.
In Part Two, we will cover CICA evidence (i.e. claiming of compensation), more on Character Evidence and Independent Legal Advice for Complainants.
Links
originalYou will find links below to the Law Commission’s original consulation document, FACT’s response to that and the Law Commission’s Final report
