Police, Crime, Sentencing and Courts Bill — House of Commons, 2021-07-05
Topic: Law and Crime
Harriet Ruth Harman (Labour, Centre-left): New clause 3 would deal with a problem that the Government have acknowledged: that on the question of rape, the justice system lets women down and lets men off the hook. There are many problems that contribute to that, but one that the Government have rightly identified is that the process focuses on the complainant rather than on the defendant. The investigation becomes an investigation of the complainant—her mobile phone, what she was doing, her attitudes—and not of the suspect. The trial becomes the trial of the complainant, not of the defendant, in one very material way: the use by the defendant of the complainant’s previous sexual history by bringing it into evidence It has been acknowledged since as long ago as 1999 that the complainant’s previous sexual history is not the issue, and it is wrong for the defendant to try to use it to deter her from supporting a prosecution for fear that all her dirty washing will be washed in public, in open court, or that it will undermine her standing and credibility in the eyes of the jury. That was supposed to be outlawed in 1999, but it has become clear that a loophole was left when we changed the law In a third of all rape cases now, one way or another, the defendant brings into court the complainant’s previous sexual history. When the Victims’ Commissioner was a police and crime commissioner, she conducted research that showed that in one third of rape trials observed, the previous sexual history of the complainant was brought into evidence. That research is backed up by work done by the Criminal Bar Association The Victims’ Commissioner gives the example of a complainant who had her parents in court to support her. They did not know that she had had an abortion, but the defendant brought that into evidence in order to undermine her and throw off her ability to give her evidence—there were her parents, sitting in court, and they did not even know that she had had an abortion. Another report was of a case in which the jury were told, "This is a woman who has had adulterous affairs," thereby trying to undermine her. Of course, that is not relevant to the issue of whether or not a rape has been committed, so we need to tighten up the law I have drafted a perfectly good, watertight clause to tighten up the law so that where the question of previous sexual history is relevant, especially if it is with the same partner in respect of whom the rape is alleged, it is allowed in evidence with the permission of the judge, but where it is not relevant, it is not. However, our Front Bench and the Government in their rape review have said that they are minded to send it to the Law Commission to look at. I would have preferred the Government to legislate in the Bill, which is after all the Police, Crime, Sentencing and Courts Bill, but they have decided not to do that; they say that they will refer to the Law Commission the whole question of the focus on the complainant, so I make two requests in that respect First, I think that the Law Commission should sit with an independent reference group. I have a great deal of respect for the Law Commission, but quite frankly we cannot leave it to get on with it on its own. We need an expert, independent reference group that is steeped in understanding of the issue and that can help the Law Commission. I suggest that Rape Crisis England & Wales should be on that group, and so should the Victims’ Commissioner My second request is that there should be a time limit on the Law Commission’s work. The Law Commission goes into things very deeply, but we do not want this to go on and on for years—it has been a problem for years, so we do not want it to go into the long grass with a never-ending Law Commission investigation. We want the findings to be ready for when the Government are thinking of bringing forward their victims Bill, which they will consult on shortly and which arises out of the violence against women and girls consultation. If we are not going to accept this today, and the Government are not, let us have the Law Commission looking at it, with an independent reference group and with a time limit. Then, the Government will have done more than just apologise to rape victims for justice not being done; they will make sure that in future justice is done.