Reforming the Criminal Process for Complainants: Beyond the headlines

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

Over the past few months, there have been a number of reports in the media highlighting concern for witnesses and complainants of crime, particularly complainants of sexual offences. The current Director of Public Prosecutions (DPP), Alison Saunders, and the former DPP, Sir Keir Starmer, have been particularly vocal on the issue. The headlines include, “Victims of crimes like rape deserve better in court” and “Police stations are intimidating for rape victims”.

Some of the headlines are misleading. For example, on 18th January 2015, The Telegraph published an article titled, “Men must prove a woman said ‘Yes’ under tough new rape rules”. The article was referring to guidance from the DPP to the effect that police should ask those suspected of committing rape why they believed the complainant had consented. This does not require the suspect to ‘prove’ consent. When it comes to the trial, the burden remains that of the prosecution to prove, beyond reasonable doubt, that the defendant lacked reasonable belief in consent.  However, if a rape suspect fails to respond to the questions put to them by the police, and then later, at trial, claims to have had a reason to believe the complainant had consented, the initial silence may be used against him, as evidence of guilt. Creating an expectation that a suspect should explain the basis for a belief in consent may increase the potential for adverse inferences of guilt to be drawn against those who do not do so, despite the fact that there may be an innocent explanation for their silence, such as fear, anxiety or legal advice.

The stories behind the headlines address legitimate concerns – that victims of sexual offences should not be deterred from reporting the offence; that the criminal process should be made as bearable as possible; and that the negative emotional impact of testifying in court should be minimised. However, recent announcements and proposals from the DPP, as well as the suggestions made by the former DPP, raise concerns of their own. On the whole, despite claims that any changes should be made “without undermining the rights of the defence”, there seems to be very little consideration given to those accused of criminal wrongdoing. While the concern for complainants is well placed, many of the current proposals act to reinforce perceptions that those who are accused of committing a crime are necessarily guilty, and that those who assert that a crime has been committed against them are necessarily truthful.

With this issue continuing to generate public attention, it is important to consider some of the worrying implications of what is being proposed.

Referring to complainants as ‘victims’

Alison Saunders has asserted that complainants should be referred to as “victims” from the time they make a complaint. She feels this appropriate because “when someone goes to the police they feel they are a victim of crime”. She also states that “There is, of course, no presumption of guilt and whether someone is legally a victim of a specific crime by a specific person is for a court to decide”.

In some circumstances there will be no question as to whether the complainant has been vicitimised, and the real issue will be who is responsible for their victimisation. Moreover, in an informal setting, there may be no objection to referring to someone who claims to have been victimised, as a victim. However, in the context of a formal legal setting, and in terms of the vocabulary used by legal professionals, it is not easy to rectify these two statements from Alison Saunders. If someone is not legally a victim until it is proved that an offence has been committed against them, then it may be no more appropriate to call them ‘victim’ than it is to refer to the accused as being ‘guilty’. For legal professionals to publicly refer to a complainant as a victim can reinforce public perceptions that the person accused of committing the offence is in fact guilty. This brings into question the presumption of innocence. Exactly what it means to presume someone innocent, and exactly what this requires on the part of state officials, is open to debate. However, it has been recognised by the European Court of Human Rights that the presumption of innocence protects against official insinuations that one is guilty before conviction.

Informing witnesses of the defence case

The DPP has also announced that witnesses should be informed of the general nature of the defence case and that they may be questioned as to their sexual history or bad character during the trial.  Where a trial is to take place in the Crown Court, the defence is under an obligation to make quite detailed disclosure of the nature of its case to the prosecution. This in itself raises issues of compatibility with the right to a fair trial. However, since that is the position in law, what is the harm of the prosecution then sharing some of that disclosure with the complainant? Perhaps the most likely and worrying consequence is that witnesses will be able tailor their evidence to the nature of the defence case, making it more difficult for the defence to cast doubt on the accuracy of a witness’s testimony as well as making it more difficult to show that a witness is not credible. Not only could this increase the prospect of wrongful conviction, but it brings into question whether the defence would be able to effectively challenge the witness, as is the right of the defendant.

Adapting the trial process

There is no doubt that giving evidence at trial is a difficult experience, and that complainants of sexual offences can be subjected to aggressive and intrusive cross-examination. The defence’s right to examine witnesses has not always been easy to rectify with the complainant’s right to privacy and to be free from inhuman and degrading treatment. Since 1999, special measures have been available to vulnerable witnesses in court, to assist them to give their best evidence and to minimise the negative emotional impact of testifying. Complainants of sexual offences are automatically eligible for special measures. These measures range from screening the witness from the accused, to pre-recorded evidence-in-chief and cross-examination through a television link. In addition, there are special rules preventing complainants of sexual offences from being questioned about their past sexual behaviour, unless certain circumstances apply. One purpose of these rules was to correct the unfortunate ‘rape myths’. These myths had influenced the way in which criminal justice professionals responded to rape complaints and deterred reporting of rape. The crux of these myths is that promiscuous women are more likely to consent than virtuous women and that promiscuous women are more likely to lie about being raped than virtuous women.

It has been suggested that the current rules do not go far enough to protect vulnerable witnesses and complainants of sexual offences, and that they are not used as rigorously as they should be. It has also been suggested that our ‘adversarial’ trial may need to be reformed in order to accommodate the needs of witnesses.  One possible reform, which has been put forward by Sir Keir Starmer, is to allow judges to have greater involvement in the examination of complainants of sexual offences, adopting a more inquisitorial style of trying cases. Not only is it wrong to assume that judges would be any better at dealing with the needs of witnesses than trained lawyers, but there are also inherent dangers in transplanting foreign procedures and hoping for the best. As Damska famously put it, “the music of the law changes, so to speak, when the musical instruments and the players are no longer the same”.

It is not disputed that the current rules may not be applied rigorously enough. But it seems that the logical response would first be to improve training of those responsible for implementing them (including through the toolkits published by the Advocates’ Training Council), and to ensure that complainants have access to the information and support which is already available (as is their entitlement under the Victims’ Code).

Concluding thoughts

It is important that witnesses and complainants are kept informed and supported throughout the trial process, and that they are able to give their best evidence. However, this should not, and need not, come with such a high price for defendants. The balance has already been shifted very much in favour of the prosecution, with official rhetoric implying that being ‘for victims’ means being against defendants. This rhetoric has led to a number of significant reforms to criminal procedure and the law of evidence, including those in the Youth Justice and Criminal Evidence Act 1999 and the Criminal Justice Act 2003, some of which have arguably compromised the defendant’s right to a fair trial.

It is concerning that this rhetoric continues to gain ground and that, what are likely to be publicly popular announcements, have demonstrated little to no concern for those accused of criminal wrongdoing. Perhaps instead of making public declarations for new methods of support for complainants and witnesses (which may fail to adequately address concerns in much the same way as previous methods have), the focus should be placed on making better use of the rules and facilities already available, addressing the occupational failures and culture within the criminal justice system, and continuing to challenge outdated assumptions. If this proves to be insufficient, then the possibility of reform could be returned to, bearing in mind the implications for the defence.

As harrowing as the court experience can be for witnesses, the criminal process is about determining the guilt of the accused, whose future and liberty may be at stake. At the same time as battling misconceptions of how witnesses, particularly rape complainants, ought to behave, perceptions of an accused person’s guilt should not be created or reinforced prior to conviction.

Dr Abenaa Owusu-Bempah teaches Law of Evidence and Criminal Law at the University of Sussex.

FGM, Mandatory Reporting and the Complexity of Culture

Verona Ní Dhrisceoil
Verona Ní Drisceoil

On the 5th of December 2014 the government published a Consultation Paper seeking views on how best to introduce a mandatory reporting requirement in cases of female genital mutilation (FGM). The consultation period remained open until January 12th with submissions now under review. In this post I share some thoughts on the recommendations proposed and revisit some of the key debates and scholarship critiquing the challenge, and complexity, of culture for gender equality. Debates about culture whether through voice, symbol or practice are never clear cut. They are always complex, always nuanced and, more often than not, divisive. That complexity is most apparent in the context of FGM and was most apparent  in last week’s trial, where a doctor was found not guilty of FGM.

As readers will be aware FGM involves removing or ‘cutting’ all or part of a girl or women’s external genital organs including the area around her vagina and her clitoris. There are no health benefits to this practice. Depending on the perspective of the practicing community or group, FGM is a cultural, religious, health, sexual, aesthetic or moral practice. FGM takes place to mark the traditional rite of passage from girlhood to womanhood, to help marry a girl off, to ensure virginity and modesty or to prevent genital disease. The negative consequences of the practice are well known. It is a practice that often leaves girls and women physically and mentally scarred for life. On a global scale, the World Health Organisation estimate that more than 125 million girls and women alive today have been cut. The practice is most prevalent in Africa and the Middle East.

From an England and Wales perspective, it has recently been reported by the Health and Social Care Information Centre that there were 1,279 active cases and 467 newly identified cases of FGM in September 2014. More broadly, Equality Now and City University estimate that approximately 10,000 girls aged under 15, who have migrated to England and Wales, are likely to have undergone FGM and are living with the impact of FGM.

This Consultation Paper can be seen as the next step in a series of reform and policy proposals designed to eliminate and prevent the practice of FGM in England and Wales. In July 2014, at the Girl Summit, the Prime Minister and Deputy Prime Minister made a commitment to end FGM. The government is unequivocal that FGM is a criminal offence and an extremely harmful form of child abuse.

The Current Law on FGM

FGM has been a criminal offence in England and Wales since 1985 under the Prohibition of Female Circumcision Act. However, a loophole in that Act allowed for the taking of girls who were settled in the UK abroad to have the practice of FGM carried out. The Female Genital Mutilation Act 2003 sought to close that loophole by providing for extra territorial effect (section 4) as recommended by an All-Party stop fgmParliamentary Group on Population, Development and Reproductive Health reporting in 2000. The 2003 Act also increased the maximum penalty on conviction, on indictment, from 5 to 14 years imprisonment (Section 5).

Despite the amendment in 2003 it has remained extremely difficult to prosecute in this area. As in other jurisdictions the hidden nature of the crime and the fear of being judged as racist or being ostracised by one’s community has deterred individuals from reporting on the practice.

The Recommendations/Proposals:

In introducing the Consultation Paper Theresa May, on behalf of the government, stated that the mandatory reporting of FGM ‘will bring FGM out of the shadows and illustrate to perpetrators that they will be tracked down’ (p.3). The Consultation Paper was set out in three parts: Parts A, B and C.

In Part A the government sought views on the scope of mandatory reporting. That is, whether the duty to report should apply to ‘known’, ‘suspected’ or ‘at risk’ cases. The government proposes that mandatory reporting should only cover ‘known’ cases of FGM. A known case is one that has been visually confirmed or disclosed to a professional by the victim. (para 2.6)

The approach recommended is narrow. It differs from the approach taken in Norway, for example, where there is a duty to report on ‘suspected’ and ‘at risk’ cases as well as known cases. As identified in the Consultation Paper, ‘there are a number of risks with introducing a duty to report ‘suspected’ or ‘at risk’ cases. (para 2.4). It identified that it is extremely difficult to compile a definitive list of generic risk factors. Furthermore, introducing a mandatory reporting duty to report ‘suspected’ or ‘at risk’ cases could, it was argued, lead to a very wide interpretation of risk and as a corollary lead to certain communities being targeted. It could also lead to the system seeing a sharp increase in referrals and a disproportionate focus on FGM.

Recent research, from Lien and Schultz (2014), on ‘the risky legal framework’ of mandatory reporting in Norway draws attention to the negative implications of a wider ‘duty to avert’ approach. By drawing on one Norwegian case, where a teacher suspected that FGM had been carried out on a Somalian girl in his class, they discuss the conflict that arises between the duty to avert FGM and the law against discrimination. In that particular case it was found that FGM had not taken place and that family relations were positive and harmonious. The father of the girl then filed a complaint with the Ombudsman for Discrimination arguing that the girl was examined purely because she was from Somali. The Ombudsman found in his favour. The child welfare service appealed the decision to the Discrimination and Equality Tribunal who found in their favour. Lien and Schultz conclude that the law in Norway ‘is questionable’ both in principle and practice (p.208). They call for a reduction on the pressure on employees to report and call for greater cultural and contextual knowledge on FGM to be given to care givers. (p.208).

With regard to the reporting of ‘known’ cases in England and Wales, the government proposes that the reporting duty be applied to under 18s only (para 2.10) and on the question of who should report, the government proposes that the new duty is placed on healthcare professionals, teachers and children’s social care staff. (para 2.18)

In Part B, the government addressed the issue of sanctions for failing to report. Two options were set out including an individual being placed on a ‘barred’ list (unable to work or volunteer with children or vulnerable people) by the Disclosure and Barring Service DBS (para 3.4) or a disciplinary sanction being imposed by the relevant professional body (para 3.6). Here, the government sought particular views on what sanctions and what level of sanction should be placed on individuals who fail to report.

In considering the proposals put forward regarding sanctions and more generally the duty to report it could be argued that the measures being proposed are indicative of the government’s ‘new’ approach to fighting crime involving a shift of power from Whitehall to local communities to fight crime. Undeniably a multi-agency and targeted approach is required in an area such as this but we, as a society, need to be cognisant of the potential negative impacts of this ‘big brother’ type approach. Is it reasonable to place this level of burden to report and potential sanction on healthcare professionals, teachers and social care staff? Will the introduction of mandatory reporting in this area lead to further division and further alienation and, indeed, the essentialisation of our immigrant population? Mandatory reporting, it is argued, could lead to a reluctance by individuals to use and avail of the key services they require for fear of the consequences that it may have on family life.

Part C briefly addressed statutory guidelines. The position of the government is that statutory guidelines on FGM would be aimed at all persons who exercise public functions in relation to safeguarding. (para 4.3)

The government hope to publish a report on the submissions received sometime in 2015. For updates see here.

Some thoughts on the complexity of culture and gender equality…

As someone who researches on culture and identity rights and advocates, on the whole, for the protection of one’s culture, FGM inevitably brings forth a challenge and raises questions as to how the right to culture can, in a real and meaningful way, be reconciled with the right to gender equality? More specifically how can Article 27 of the ICCPR (protecting minority rights), Article 15 of the ICESCR (recognising rights to cultural life) be compatible with Article 5 of CEDAW? Article 5 of CEDAW provides that:

 States Parties shall take all appropriate measures:
 (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

In seeking to eliminate ‘prejudices and customary’ practices we are reminded of the work of the late Susan Okin who asked the provocative question ‘is multiculturalism bad for women?’ in 1999. She did so in the context of the consideration of practices such as FGM. Okin concluded that it was – bad for women, that is. In her view women:

 ‘…might be much better off if the culture into which they were born were either to become extinct (so as its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women.’ (1999:22/23)

Susan Moller Okin
Susan Moller Okin

For Okin, the multiculturalist project of protecting the rights of minority groups, often imposing ‘dangerous’ patriarchal rights, undoes the results of the feminist struggle for gender equality. I admire Okin’s work and too recognise, as with most of western society it seems, that FGM is a form of violence against women and girls and it does reflect a deep-rooted inequality between the sexes. It constitutes an extreme form of discrimination against women. The practice violates a woman’s right to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment and the right to life when the procedure results in death. When FGM is carried out on young girls it is a violation of the rights of children.

But then I ask, who am I to judge? By agreeing with Okin am I failing to challenge the false universality of so called western feminist liberalism? To agree with Okin, as noted by Siobhan Mullally further entrenches a “them and us”; the liberal and the so called illiberal. (Mullally, 2010:1)  And though this point has been made elsewhere, we must not lose sight of the ‘increasing commodification of the female body and the easy availability of cosmetic surgeries’ for the so called ‘liberated First world woman’ raising questions about the normative requirements of gender equality and the cultural context (Mullally, 2010: 2). Further still, Judge Tulkens, dissenting in Şahin v Turkey, reminds us that ‘equality and non-discrimination are subjective rights which must remain under the control of those who are entitled to benefit from them’(para 12).

Within the Consultation Paper it stated that the government is interested to hear from victims of FGM and community groups and leaders. That invitation is to be welcomed but I do wonder why, if the government sought to have a ‘full’ discussion on this why the consultation process remained open for a mere 5 weeks (see p.5). Though I appreciate that a policy drive to eliminate FGM is well intended, I do hope that the required time will be taken to consider whether mandatory reporting is a suitable next step. In this context too it is hoped that discussions are raised about projects which have sought to provide alternatives to FGM within community groups; projects that could be supported an encouraged by the government. In Kenya, for example, NGOs have worked with communities to encourage an ‘alternative rite to passage’ or circumcision through words for young girls (p.41).

We have, as noted by the brief discussion here, the opportunity to learn from elsewhere. Yes, cultural issues are complex. FGM is complex! The government needs to thread carefully and take the time that is required to develop a responsible and rational policy system and work with communities and not against them.

Renewable energy subsidies and Local Content Requirements: Dream come true or WTO nightmare?

Emily Lydgate
Emily Lydgate

We all (or at least most of us) grasp the importance of switching to renewable energy. The problem is, it’s still expensive. Around the world, countries are using subsidies to incentivize renewable energy use, to shelter these fledgling industries from market competition they cannot yet endure. To make these subsidies more politically attractive, governments often add local content requirements (LCRs). This means that some of the taxpayer payouts go to support local manufacturers of solar panels and wind turbines. Not just the environment, but also local industries, are the winners.

Yet making payments specific to domestic producers is antithetical to the law of the World Trade Organization, to which virtually all of these countries belong. A core principle of the WTO is that domestic and imported products should receive the same treatment.

In a landmark 2013 case brought by Japan and the EU against Canada, the WTO Appellate Body made clear that LCRs are expressly prohibited under WTO national treatment and investment obligations. This is unsurprising. Yet there are some aspects of the case that should provide food for thought.

The first is the dogged persistence of countries to attach LCRs to their subsidies, despite such a clear

REUTERS Suzanne Plunkett
REUTERS
Suzanne Plunkett

signal that they may well end up on the losing end of a WTO dispute. The Canadian disputes have led to several more WTO clashes. The retaliatory nature of these clashes reveals that countries in glass houses are throwing stones at one another. For example, when the EU began an investigation of China’s solar panel subsidies, China responded by initiating a dispute on LCRs in the EU’s renewable energy sector. When the US complained of a LCR in a solar energy programme in India, India responded by pointing out several US programmes that seemed to contravene the same WTO provisions.

This raises the possibility that the WTO’s caseload will be clogged with LCR disputes, quid-pro-quo style, for years. Or perhaps governments will simply go back to looking the other way? In either case, if LCRs are the essential sugar-coating to make the renewable energy pill go down, it could be argued that they are, in a pragmatic sense, an environmental policy. Then this becomes a conflict between trade rules and environmental goals – though it may be impossible to build a formal case for this.

Another important issue raised here is whether the subsidies themselves, in this case Feed-in-Tariffs (FITs), are WTO-illegal. FITs are the most popular form of renewable energy subsidy, adopted by more than 71 countries. Whether WTO law will accommodate them is thus hugely significant. The Appellate Body ducked the question, concluding that it did not have enough information complete the analysis. Thus the dispute did not provide a clear precedent.

What it did do is reveal the inadequacy of WTO subsidy laws to deal with the situation. There is no ‘carve out’ for subsidies that are based upon public policy (eg environmental) goals. Though its ruling was inconclusive, the Appellate Body introduced some significant and innovative legal reasoning which shielded the renewable energy market from comparisons with open conditions of competition. This may open the door for renewable energy support to be justified on an economic rather than a policy basis. However, the approach was widely-criticized for its ‘ends justifies the means’ approach and the complex, ambiguous precedent it created. In other words, the Appellate Body got creative. Instead of stretching the interpretation of how a market is defined in general to accommodate this specific result, it would have been more straightforward to conclude that the subsidy was justified in principle because of its policy rationale. The fact that the legal rules are not fit for purpose (if you’ll excuse the pun) is a cause for concern.

WTO Member States will likely continue to use incentive schemes to encourage renewable energy production, with controversial results. As WTO disputes evolve, this will be an interesting space to watch.

Emily Lydgate is Lecturer in Environmental Law at the University of Sussex