10 August 2020
In the News:
On 30 July 2020, the Crown Prosecution Service published its performance statistics on sexual violence cases for the year 2019-20, which vindicate long-held concerns about the “damning” number of cases being lost amid “under-resourced” investigations.
While police-recorded rape offences have more than doubled over six years, the statistics showed that the number of:
- prosecutions for rape is down to its lowest level since annual recording began. It has dropped by 30% in the past year.
- convictions for rape is also at its lowest level and has dropped by 25%. This is about half of what it was two years ago.
- rape cases charged has risen slightly. However, it is still significantly less than the number recorded in the years leading up to 2018.
The response from the Victim’s Commissioner, Vera Baird QC, was emphatic and unequivocal: “What we are witnessing is the decriminalisation of rape.” Baird attributes the dramatic drop to the decision made by the Crown Prosecution Service director in September 2016 to remove so-called “weak cases” from the system. Baird asserts that this move raised the CPS’s evidential threshold, making it harder to charge a suspect and bring them into court.
The Guardian has now reported that Downing Street plans to set rape prosecution targets for police and the CPS. Similar internal targets set by the CPS between 2016 and 2018 were dropped for being “not appropriate” and acting as a “perverse incentive”.
The decision has been damned with faint praise by legal commentators and representatives from women’s charities.
While welcoming a well-overdue acknowledgement of the criminal justice system’s failures on rape, Katie Russell, the national spokesperson for Rape Crisis England and Wales, stressed that targets are a “blunt tool for dealing with a systemic problem.” Other concerns raised include that this approach may:
- share the fate of the CPS’s own abandoned and criticised “target” system;
- place undue pressure on the CPS to prosecute weak cases and undermine its independence;
- put complainants through traumatic trials without a realistic prospect of conviction;
- make innocent defendants vulnerable to injustice;
- fail to compensate for under-investment in specialist officers, the CPS, the court system, rape crisis centres and mental health providers;
- fail to address rape myths and systemic social factors which perpetuate sexual assault;
- fail to focus on victim needs and rights; and
- amount to an example of imprudent and unprincipled political interference in the justice system.
The attorney general’s office, the CPS and the police have not yet responded to questions about the proposed targets.
In Other News
- Earlier this month, the Court of Appeal ruled that Shamima Begum should be allowed to return to the UK in order to have a fair and effective appeal against being stripped of her British citizenship. On Friday 31 July the Court of Appeal allowed the Home Office permission to appeal that ruling to the Supreme Court. The outcome will indicate where the UK stands on two fundamental issues: the right to appeal in person, and deprivation of nationality.
- The Home Office agreed to stop using a computer algorithm to help decide visa applications, after the Joint Council for the Welfare of Immigrations and digital rights group Foxglove launched a legal challenge against it. The algorithm, which was characterised by Foxglove as offering “speedy boarding for white people,” was suspended on 7 August 2020. The decision is discussed in more detail on the UKHRB here.
- The CPS has decided not to bring charges over the death of Belly Mujinga, a railway worker who died of Covid-19 after allegedly being spat on while at work, after tests found that the suspect had not been infected with the virus.
- A number of stories have highlighted failures to protect the liberty of children. The treatment of some young people in detention, including those with disabilities, has come under fierce criticism in an annual report from the Lay Observers, volunteers who inspect court custody conditions and transport arrangements for detainees. BBC News has criticised the rapid increase in use of deprivation of liberty orders against children in care over the last two years. Finally, the MoJ’s rules around prison visits are being challenged on the basis that they breach children’s article 8 rights, and fail to properly safeguard their best interests under the Children Act 2004.
In the Courts
- Avon and Wiltshire Mental Health Partnership v WA & Anor  EWCOP 37: in an unusually poignant July judgement, Mr Justice Hayden ruled in the Court of Protection that in the case of WA, attempts to persuade and encourage the young man to accept nutrition and hydration should be permitted “with far greater persistence than would be considered appropriate in the case of a capacitous adult.” However, if WA refused, his refusal should be accepted. WA’s refusal of food and water was connected to the Home Office’s replacement of what he believed to be his date of birth with a date several years older. This triggered an extreme sense of loss of autonomy, founded on traumatic childhood experiences of torture by Hamas and subsequent sexual abuse by foster parents in Italy. Mr Justice Hayden praised WA for remaining “the gentlest and most courteous of men” in spite of his experiences, and sought to restore his autonomy to him while safeguarding his health.
- Iancu and Others v Romania – -41762/15 (Judgment : Prohibition of torture : Fourth Section Committee)  ECHR 578: the ECHR ruled that the overcrowded, infested and unhygienic conditions of the prisons in which the applicants were detained amounted to a breach of the prohibition against “inhuman or degrading treatment” in article 3 of the Convention. The respondent state was ordered to compensate the applicants.
On the UKHRB
- Rafe Jennings covers the Home Office’s decision to scrap an algorithm used for sorting visa applications in response to a legal challenge brought by the Joint Council for the Welfare of Immigrants.
- In light of the issues brought to the fore by the killing of George Floyd in Minneapolis in May, the UKHRB highlights the diversity gap at the bar in generally, and the commercial bar in particular.