by Harriet Wistrich, director, Centre for Women’s Justice
One of the main reasons for the establishment of the Centre for Women’s Justice was the concern that despite the UK having a relatively good legal framework to tackle violence against women and girls, there is abundant evidence of systemic failure by all the criminal justice agencies to implement the laws, policies and guidance that they themselves signed up to.
In the civil claim brought against the Metropolitan Police by two of the 100 plus victims of taxi driver, John Worboys - which resulted in the landmark Supreme Court judgment (DSD and NBV v Commissioner of Police of the Metropolis [2018] UKSC 11) creating an Article 3 ECHR duty to investigate - the evidence at trial showed that the Metropolitan Police had really clear guidance on investigating allegations of drug assisted rape. However, officers admitted at trial that they had not read it or did not follow it. The Crown Prosecution Service has really excellent guidance on the prosecution of all the different types of offences that are routinely committed against women and girls. Yet routinely, we see prosecution decisions that don’t appear to follow this guidance. The failure to implement laws and published policies is likely to be unlawful and can give rise to legal action including judicial review or claims for damages.
At CWJ we train frontline women’s organisations, that support victims of male violence, to help them identify where police and other criminal justice agencies are failing to comply with the stated law and policies in relation to investigation and prosecution approaches. Where frontline advocacy fails to persuade, we assist with Victim Right to Reviews, complaints, civil actions and judicial reviews. Through working with organisations such as Women’s Aid and Rape Crisis across the country, we gather evidence of trends in failings and potential systemic fault-lines. This has led to some of our strategic litigation challenges and other legal interventions.
CWJ became a designated body for the new system of police super-complaints, which “allows designated organisations to raise issues on behalf of the public about harmful patterns or trends in policing.” In March 2019, we lodged one of the first such super-complaints based on the work we had been doing with frontline women sector organisations supporting victims of domestic abuse and rape. From that work it was clear there were huge inconsistencies but generally very poor performance by police forces across the country in applying the powers they have to protect victims of domestic violence. This included the failure to impose bail conditions when the perpetrator was being investigated, the failure to use domestic violence protection orders, the failure to enforce of non-molestation orders and the failure to apply for restraining orders. Thus a whole raft of measures introduced to protect victims from further harm were routinely not being used.
Elsewhere in relation to the investigation and prosecution of rape and serious sexual offences we see the police and prosecution failing to act consistently with their own guidance which is designed to overcome the many myths and stereotypes endemic in such cases. Too often the investigation of such offences seems to focus far too much on victim credibility and not enough on investigation of the suspect.
For example, particularly in the aftermath of the Liam Allen case, the police routinely require the victim to hand over all their digital data, all their medical records, school records, social services records and other material which it is said may in some instances could support or undermine the defence. There are a range of guidelines, designed to ensure that there is not a disproportionate breach of the victim’s privacy rights, but in practice these are often ineffective. Most recently the Court of Appeal judgment in R v Alibhai [2004] EWCA Crim 681 set out clear criteria for obtaining of material for disclosure and makes clear that the test should preclude the large indiscriminate gathering of any data that might possibly be relevant; instead such requests should be targeted where there is “a suspicion” that particular material may damage the prosecution or assist the defence.
Another area where we see routine failures by the police in particular is in the misapplication of the law on corroboration. We have compiled a dossier of compelling anecdotal evidence of the police wrongly concluding that an absence of corroborative evidence in a rape investigation necessarily justifies no further action (NFA) being taken. Section 32 Criminal Justice & Public Order Act 1994 abolished the need for the jury to be given a warning about convicting solely on the basis of uncorroborated evidence in cases involving sexual offences. However, we frequently see NFA decisions which in essence say, “we can’t take this further as it is your word against his”. This misapplication of law appears to be linked to a broader over-sensitivity and excessive caution about prosecuting rape and other sexual offences. Such decision-making reveals that the accounts of survivors of sexual violence are assumed to have less weight than those of other victims of crime. Given that the vast majority of those who report sexual offences are women, this systemic misunderstanding of the law amounts to indirect discrimination.
Finally, we also see that in the absence of well-trained specialist policing, there is a frequent failure to identify appropriate crimes that should be investigated and prosecuted. For example, police often fail to identify coercive and controlling behaviour, stalking and harassment and honour-based violence. They also far too often mistake the victim for the offender. I will be writing more about this last point, the criminalisation of victims of abuse, in next week’s instalment of the CWJ manifesto.