September 01 2014
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The Joint CPS and Police Action Plan on Rape was published in June 2014 in response to concerns about the number of rape and sexual abuse offences that go unreported and a drop in the number of cases referred by police to CPS. Together they are calling for greater challenge to persistent stereotyping that they believe has an adverse impact on cases, both during investigation and at court. The report was the product of a panel composed of police, prosecutors, academics and victims’ groups, but notably without the input of forensic science specialists. Unfortunately, this misses the vital contribution that forensic science experts can provide in such cases, based on experience in identifying evidence that can be independently evaluated against the disputed accounts, moving them away from just one person’s word against another.
One of the most encouraging comments in the Joint Action Plan was that ‘the focus of any investigation and case preparation should not be on the credibility of the victim but on the credibility of the overall allegation, including the actions of the suspect’. This could, as the report recommends, be looking at the steps the suspect took to seek consent; but in many cases it is also investigating differences in the alleged actions, contacts and activity, which are all issues best addressed by focused scientific examinations. This is a strategic approach we apply routinely to sexual offence cases, often resulting in evidence that has significant impact; effectively and demonstrably ‘achieving best evidence’.
In our view the implementation of the Joint Action Plan should involve the routine application of a forensic strategy provided by an experienced forensic scientist. This would be a valuable part of the review if a case was not to be referred to CPS, in confirming that there was no untapped forensic potential. Alternatively such an exercise could form the strategic basis for commissioning forensic examinations if a case was to be referred and potentially proceed to trial. A switch in focus onto the credibility of the overall allegation would highlight some of the deficiencies of current prosecution forensic provision, by turning the light on the potential for forensic examinations to corroborate or contradict specifics in the victim’s overall account of events or the defendant’s alternative description of what went on.
It is the declared aim of the Joint Action Plan to increase the number of suspects charged with sexual offences and to increase the proportion of convictions. In an ideal world it would also be the responsibility of prosecutors to ensure a comprehensive forensic review in each case. Most forensic service providers have specialists in forensic strategy and the accurate evaluation of forensic evidence in sexual offences, many of whom are frequently frustrated by a prosecution system that instructs them what to do, but rarely asks them what might be most probative. Forensic input, however, does not appear in the Action Plan and we live in a world with a criminal justice system that increasingly transfers to the defence the responsibility for commissioning forensic examinations that might assist the courts.
It is regrettable that the joint police/CPS policy body apparently chose not to include representatives of the forensic science profession but far more important that the declared aim of convicting more people for sexual offences is unlikely to be achieved safely, if at all, without the full involvement of the forensic profession, which applies equally to the prosecution and defence of these cases. From the defence lawyers’ perspective, forensic overview reports are a means of identifying the forensic potential missed by the prosecution and targeted forensic examinations (at our laboratories) are an important and often the only means of assessing the credibility of the defendant’s account.