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Sexual Offences and the Criminal

Process
1 Introduction
The aim of the concluding section of the Criminal Law module is to explore how
the substantive criminal law can be studied as part of the broader field of the
criminal process as a whole. This will be done largely through one principal
example: the offence of rape.
All but the last of the topics in this section of the module (sentencing) are dealt
with in some detail in the module document Rape and the criminal justice system,
which is available both as a handout and on WebCT. Sentencing will be covered in
a separate lecture handout.
Additional sources of reading on the law of rape, but which do not deal with the
law enforcement, evidence / court procedure, and sentencing elements of the
syllabus:
A. Ashworth Principles of criminal law (5th ed., 2006) pp 337 352.
C.M.V. Clarkson et al. Clarkson and Keating Criminal Law (6th ed., 2007) pp 625
659.
Further general reading can be found in:
J. Bourke Rape; a history from 1860 to the present day (2007; Harding Law Library
KH 19/B (short loan); see especially Chapter 2 (Rape myths) and Chapter 3 (No
means yes); the full text of Chapter 2 is available on WebCT.)

2 The problem of crime


2.1 Introduction
Any system of criminal law and criminal justice is the product of the interaction of
a large number of factors, one of which is the extent to which crime is seen as a
problem by those responsible for shaping policy. This topic is essentially
concerned with answering the question 'How much crime is there?' In looking at
Home Office statistics and other sources you will discover how much uncertainty
there is about the answer to that question.
Reading: K. Williams Textbook on criminology (5th ed. 2004; Chapter 4 The
extent of crime: a comparison of official and unofficial calculations; Harding Law
Library KH 60/W, short loan; the full text of this chapter is available on WebCT.)
Additional reading: A. Ashworth & M. Redmayne The criminal process (3rd ed.
2005; Chapter 6 Gatekeeping and diversion; Harding Law Library KH 5, short loan;
the full text of this chapter is available on WebCT.)
2.2 Sources of data
The Home Office publication Crime in England and Wales 2006 07 / Summary,
p3, provides the bullet-point descriptions of the two sources of information which
are used to publish regular official information about the nature and extent of
crime:
2.2.1 Police recorded crime

Covers crimes which are reported to and recorded by the police


A good measure of trends in well-reported crimes and also the less
common but more serious crimes
An important indicator of police workload
Provides information for local areas

The principle limitations of crime statistics recorded by the police relate to:
(a) Recording decisions by the police
Until 2002 some police forces adopted what the Home Office has called a prima
facie model of recording crime, whereas others adopted an evidential model. This
lead to considerable variation in the extent to which crimes were recorded. The
move towards the adoption of the prima facie model in the National Crime
Recording Standard (NCRS; completed in 2002) resulted in an increase in the
figures for recorded crime which was not a true reflection of any change in the
occurrence of actual crime.
The Home Office Counting Rules embody the prima facie approach:
An incident will be recorded as a crime (notifiable offence)
1. For offences against an identified victim if, on the balance of probability:
(a) the circumstances as reported amount to a crime defined by law (the
police will determine this, based on their knowledge of the law and
counting rules), and
(b) there is no credible evidence to the contrary.
(Source: Section A of the General Rules section of the Home Office
Counting Rules (revised April 2007), available at
http://www.homeoffice.gov.uk/rds/pdfs07/countgeneral07.pdf, last
accessed 3/3/2008)
In 2003 the Home Office reported that:
The national picture for total crime demonstrates an overall NCRS impact
of 10 per cent on the recorded crime statistics for 2002/03. In other words,
the crimes counted in 2002/03 were 10 per cent higher than they would
have been under pre-NCRS recording, reflecting a change in recording
practice rather than a real increase in crime.
(Source: J. Simmons & T. Dodd, Crime in England and Wales 2002/2003, p.
34. Home Office; full text available at
http://www.homeoffice.gov.uk/rds/pdfs2/hosb703.pdf, last accessed
3/3/2008)
The Home Office counting rules aim to ensure consistency in recording; however,
it is unlikely that practices such as up-criming or down-criming have been
eliminated.
(b) Decisions by victims and others to report offences to the police
People decide to report or not to report crimes for many reasons. In some
circumstances these individual decisions can have a very significant effect on the
figure for recorded crime; rape is almost certainly an example of where this factor
can been seen to affect the criminal statistics.

2.2.2 The British Crime Survey (BCS)

A large survey of a representative sample of people aged 16 and over in


England and Wales
Asks about peoples experiences and perceptions of crime
Provides the most reliable measure of the extent of victimisation and of
national trends over time
Not affected by whether the public report crime or by changes to the
way the police record crime

This official survey of crime victimisation is an attempt to add to the information


given in statistics based upon crimes recorded by the police. The survey was
started in the 1980s, and was for many years carried out normally once every two
years involving interviews with several thousand people in their homes. In July
2001 the then Home Secretary, David Blunkett, announced that he intended to
have the Home Office produce an annual British Crime Survey, with an increased
sample size. Interviews are now conducted as part of a continuous rolling
programme, with around 50,000 people aged 16 or over interviewed each year.
The BCS is subject to the problems of all other surveys, such as securing a good
response rate from a well designed survey which is large enough to give a
statistically valid basis for the information which is sought.
The Home Office report on crime for 2006 - 2007, considering figures for crimes
recorded by the police and those from the British Crime Survey, found these to be
the most significant points to emerge:

The British Crime Survey (BCS) and police recorded crime present a
broadly similar picture of changes in crime since 2005/06. Overall, the
BCS shows no significant change in crime (for the second year running)
and police recorded crime shows a two per cent decrease.

The risk of being a victim of crime as measured by the BCS, at 24 per


cent, has increased by one percentage point compared to 2005/06.
However, the risk of being a victim of crime is still significantly lower
than the peak of 40 per cent recorded by the BCS in 1995.

Since peaking in 1995, BCS crime has fallen by 42 per cent,


representing over eight million fewer crimes, with domestic burglary
and all vehicle thefts falling by over a half (59% and 61% respectively)
and violent crime falling by 41 per cent during this period. Recorded
crime statistics show that both domestic burglary and offences against
vehicles have also fallen over the same period.

Vandalism is the only BCS crime category to show a statistically


significant change compared to 2005/06; increasing by 10 per cent.
The amount of criminal damage recorded by the police showed no
change.

Violent crime has remained stable according to BCS interviews in


2006/07 compared with 2005/06. Recorded crime figures show a one
per cent fall in violence against the person, a seven per cent fall in
sexual offences and a three per cent increase in robbery for 2006/07
compared with 2005/06.

BCS interviews for 2006/07 indicated that victims of vandalism (32%)


and assault with minor injury and with no injury (24% and 28%
respectively) were most likely to suffer repeat victimisation.

The likelihood of reporting crime to the police varies considerably by


type of offence. Thefts of vehicles and burglaries in which something
was stolen are most likely to be reported and crimes such as assault
without injury, theft from the person and vandalism are least likely.
(Source: S. Nicholas et al. Crime in England and Wales 2006/07 Home
Office Statistical Bulletin 11/07, p.11; full text available at
http://www.homeoffice.gov.uk/rds/pdfs07/hosb1107.pdf, last accessed
3/3/2008)

2.3 Data on the extent of rape


In some 'sweeps' of the BCS considerable effort has been made to gather data
about crimes involving sexual victimisation. In a report published in 2002 the
following figures were given:
0.9 per cent of women aged 16 to 59 said they had been subject to some
form of sexual victimisation (including rape) during the last year.
0.4 per cent of women said they had been raped in this period.
In the year preceding the 2000 BCS it is estimated that 61,000 women
were the victim of a rape in England and Wales.
The police came to know about 20 per cent of rapes.
Around 1 in 10 women (9.7%) said they had experienced some form of
sexual victimisation (including rape) since age 16.
Around 1 in 20 women (4.9%) said they had been raped on at least one
occasion since age 16.
The BCS estimates that approximately three-quarters of a million women
(754,000) have been raped on at least one occasion since age 16.
(Source: Myhill, A. and Allen, J. Rape and sexual assault of women: the
extent and nature of the problem. Home Office Research Study 237 (2002);
full text available online at
http://www.homeoffice.gov.uk/rds/pdfs2/hors237.pdf, last accessed
3/3/2008)
(See also Walby, S. and Allen, J. Domestic violence, sexual assault and
stalking: findings from the British Crime Survey. Home Office Research
Study 276 (2004); full text available at
http://www.homeoffice.gov.uk/rds/pdfs04/hors276.pdf, last accessed
3/3/2008)
Further information, including data on the conviction rate in rape cases (around
6%), is given in section 2 of the module document Rape and the criminal justice
system.

3 The development of the law of rape: actus reus


3.1 Introduction
Your objectives in studying the actus reus of rape are:
(a) to observe how problematic the legal definition is and has been; and
(b) to develop your own reasoned views on what the law should be.

3.2 Statutory definition of the actus reus of rape


The statutory definition of rape has recently changed considerably. In order to
make a judgement on whether the current definition has dealt appropriately with
issues surrounding the former definition, it is important also to consider s.1(2)(a)
of the Sexual Offences Act 1956, as amended by the Criminal Justice and Public
Order Act 1994, which represented the law until 2004. The 1956 Act, as amended,
stated that a man completed the actus reus of rape if:
he has sexual intercourse with a person (whether vaginal or anal) who at the
time of the intercourse does not consent to it.
The new definition of rape, in s.1 of the Sexual Offences Act 2003, came into force
in 2004:
1(1) A person (A) commits an offence if (a) he intentionally penetrates the vagina, anus or mouth of another
person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(Note that the words in italics form the mens rea of the offence, which is dealt
with later.)
The law, including the recent changes, is explored in detail in the module
document Rape and the criminal justice system.
In debates up to and beyond the establishment of the current definition of rape
the following points concerning the actus reus have been seen as problematic:

3.3 The definition of sexual intercourse


Although the inclusion of male rape (see below) and rape by penetration of the
mouth has increased the range of the offence, it could be argued either that the
behaviours and harms encompassed within the offence of rape should be
extended further, beyond the limits of the current statutory definition, or that the
offence of rape should be restricted to its original limit of vaginal penetration. The
Home Office Review of Sex Offences: Setting the boundaries (full text available at
http://www.homeoffice.gov.uk/documents/vol1main.pdf, last accessed 3/3/2008)
considered some of these issues when it recommended changing the law, as was
later enacted in the Sexual Offences Act 2003, to include penetration of the
mouth. See the course document Rape and the criminal justice system, section

3.1.
Note that the Sexual Offences Act 2003 created an offence to be known as assault
by penetration, with the same maximum penalty (life imprisonment) as rape:
2 (1) A person (A) commits an offence if(a) he intentionally penetrates the vagina or anus of another person (B)
with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.

3.4 'Male rape'


Until 1994 there was no such offence as 'male rape', although the newspapers
would often use that term in a colloquial sense to describe sexual attacks on men.
The offence of rape had always been one which could only be committed by a
man against a woman. The Criminal Justice and Public Order Act 1994 changed
that position as a result of an amendment introduced by a Liberal Democrat peer
at a late stage in its passage through Parliament.
The number of recorded offences of male rape in 1995 was 150; the figure had
risen to 664 in 2001 (see J. Temkin, Rape and the legal process (2nd ed, 2002;
Law Library KH 19 short loan) pp. 67 - 69), and in the 12-month period to April
2007 it rose to 1,150.
As additional optional reading see:
S. Lees, Ruling passions: sexual violence, reputation and the law. (1997) Chapter
5. (Main Library, classmark HV 6569)

3.5 'Marital rape'


Although research by Kate Painter and others has demonstrated that many
married women are subjected to non-consensual sexual intercourse by their
husbands, the law for centuries denied that this could lead to a charge of rape.
Arguments in favour of a change in the law had mixed receptions: as late as the
mid-1980s the Criminal Law Revision Committee was strenuously arguing against
reform. It is significant that the change eventually came through the courts, in a
case decided by the House of Lords in 1991. It was only later, through the
initiative of the same peer who had introduced the change in the law on male
rape, that the Criminal Justice and Public Order Act 1994 put the new law on a
statutory basis. There is some debate as to whether it is appropriate for judges to
make such major changes (however desirable in themselves) rather than leave
such matters to Parliament.
The issue has now become how the change in the substantive law will affect
enforcement, prosecution and sentencing; these issues will be returned to later.
P. Moodie, Rape and the criminal justice system, section 3.2
R. v R. [1992] 1 AC 599; [1991] 3 WLR 767; [1992] Crim LR 207

3.6 Without consent


The absence of consent is at the heart of the actus reus of rape. It is clear that the
original view of the courts that rape could only be committed by force or the
threat of force has been abandoned, so it should never be the case that the victim
is required to demonstrate physical injuries to show that (s)he did not consent.
The approach to consent in Olugboja, which had moved the law on from the
original concept of consent, was subject to the criticism that different juries might
well take different views as to what constituted a lack of consent; however, the
major change that came with the Sexual Offences Act 2003 (see below) has
produced a definition which two distinguished commentators have described as
"vague".
The general definition of consent in rape is now provided by s.74 of the Sexual
Offences Act 2003:
A person consents if he agrees by choice, and has the freedom and
capacity to make that choice.
Considerable concern was expressed at the acquittal of the defendant in R v
Dougal at Swansea Crown Court in 2005 a case where the complainant had
voluntarily consumed alcohol before the incident took place. Following that case
the government, through the Office for Criminal Justice Reform, published a
consultation document which raised several possibilities for improving the
handling of rape cases, including the question of whether there was a need for a
change in the law on consent:
Convicting rapists and protecting victims justice for victims of rape: a
consultation paper (2006; available at
http://www.homeoffice.gov.uk/documents/cons-290306-justice-rape-victims?
view=Binary, last accessed 3/3/2008)
Section 3.3 of the module document Rape and the criminal justice system gives
details of the consultation, and of the Court of Appeal decision which to some
extent overtook the consultation process:
R. v Bree [2007] EWCA Crim 804; [2007] 3 WLR 600; see the comment by
Professor Ashworth at [2007] Crim LR 900.
Another subset of the general issue of consent is the question of how the use of
deceit or fraud may affect what appears to be genuine consent; see section 3.4 of
Rape and the criminal justice system. One specific issue that has reached to
courts is the question of whether the defendants failure to inform a sexual
partner of his positive HIV status vitiates any apparent consent. The current
position is that this is not a matter which can be relevant to the issue of consent
to sexual activity within the meaning of s 74 of the 2003 Act:
R. v B. [2007] 1 W.L.R. 1567; [2007] 1 Cr. App. R. 29

3.7 A range of 'rape' offences?


It is sometimes suggested that (a) the term 'rape' should be abandoned in favour
of something such as 'serious sexual assault', or (b) there should be a series of
different 'rape' offences which would be differentiated according to the
(presumed?) seriousness of the harm.

Some jurisdictions, such as Canada, have adopted the former approach. However,
the Home Office Review of Sex Offences: Setting the boundaries (2000; full text
available online at http://www.homeoffice.gov.uk/documents/vol1main.pdf)
recommended that rape should not be subdivided into lesser and more serious
offences. Although the Sunday Times reported that the then Home Secretary, Jack
Straw, had been thinking of adopting something like the Canadian approach
shortly before the 2001 General Election, that view did not prevail in the Sexual
Offences Act 2003.
For further discussion of these issues see the module document Rape and the
criminal justice system, section 5.
Note that the SOA 2003 did create one further offence of rape to apply in
particular circumstances:
5(1) A person commits an offence if
(a) he intentionally penetrates the vagina, anus or mouth of another
person with his penis, and
(b) the other person is under 13.
(2) A person guilty of an offence under this section is liable, on conviction
on indictment, to imprisonment for life.

4 The development of the law of rape: mens rea


4.1 Introduction
This topic will demonstrate that, as with the many issues involved in the definition
of the actus reus of the offence, there is a range of possible policy approaches to
the mens rea requirement in rape.
The Sexual Offences Act 2003 radically changed the mens rea for rape. As with
actus reus, it is very instructive to compare the law before and after the SOA
2003. Before the SOA 2003 the mens rea of rape was defined by the Sexual
Offences Act 1956 (as amended by the Criminal Justice and Public Order Act
1994). If a man had intercourse with a person who did not consent, then by s.1(2)
(b) he was guilty of rape if:
at that time he knows that the person does not consent to the intercourse
or he is reckless as to whether that person consents to it.
The SOA 2003 provides this new approach to the mental element required for
rape (highlighted in bold):
1(1) A person (A) commits an offence if (a) he intentionally penetrates the vagina, anus or mouth of
another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
The lectures will indicate some of the problems associated with both the old and
the new approaches; it is important that as a minimum you read section 3.5 of the
handout Rape and the criminal justice system.

4.2 The former law: knowledge


The 'knowing' part of the definition was equivalent to full intention. It was a
'subjective' test, in that the jury had to decide whether the defendant himself, at
the time, knew of the absence of consent.
But how should a jury work out what the defendant did or did not know about the
victim's lack of consent? In essence this task was not qualitatively very different
from that facing a jury (or magistrate) who must decide whether, for example, a
defendant intended to take an item from a shop without paying and thereby
commit theft. However, there is no doubt that the task was often seen as a
particularly sensitive one in the context of rape. The answer was in part supplied
by s.1(2) of the Sexual Offences (Amendment) Act 1976:
... if at a trial for a rape offence the jury has to consider whether a man
believed that a woman [or man] was consenting to sexual intercourse, the
presence or absence of reasonable ground for such a belief is a matter to
which the jury is to have regard, in conjunction with any other relevant
matters in considering whether he so believed.
However, notice that the jury's consideration of the presence or absence of
reasonable grounds for the defendant's belief was only a means of helping them
to decide what the defendant himself believed; the test was solely the subjective
one of the state of the defendant's mind.

4.3 The former law: recklessness


The problematic issues for the legal meaning of recklessness in the former
definition of rape are explored in section 3.5 of the handout Rape and the criminal
justice system.
4.4 The current law: absence of reasonable belief in consent
Following the change in the law with the SOA 2003 it is possible for the first time
to convict someone on a charge of rape even if he positively believed that the
victim was consenting - but only if that belief was not reasonable.
How will this new provision work in practice? A great deal will depend upon how
the courts interpret s.1(2):
Whether a belief is reasonable is to be determined having regard
to all the circumstances, including any steps A has taken to
ascertain whether B consents.
It seems likely that this test will be interpreted as requiring a court to consider
some of the personal characteristics of the defendant in determining whether his
belief was reasonable. If that is the case, liability for rape will still incorporate
some subjective elements, rather than imposing a purely objective liability as
would be the case if the test was one of negligence (see below).

5 Some issues in law enforcement

5.1 Introduction
Whatever decisions legislators and courts have made about the requirements for
criminal liability in any offence, the question of whether those who break the law
will be found guilty and punished depends upon a great many other factors. For
example, the way in which the police do their work will clearly influence the
number of offenders who are prosecuted, and the jury selection process can be
assumed to have some impact upon the number of guilty verdicts in the Crown
Court. In this lecture we shall consider police handling of rape as an example of
the importance of law enforcement to a study of law and legal policy.

5.2 Law enforcement and marital rape


The Criminal Law Revision Committee's view before the law was changed to
recognise the offence of marital rape was that:
Prosecutions in such cases would be unlikely, and the police would have
had the time-wasting and distasteful task of investigating the wife's
complaint.
There is still a scarcity of good evidence on the impact of the change in the law.

5.3 Male rape


Similar questions regarding enforcement and prosecution policy can be asked
about the new offence of male rape as are being asked concerning marital rape although in the case of male rape the behaviour was previously categorised as
another offence (buggery). There are indications that male victims of rape are less
likely to report the offence than are female victims.
Sue Lees has reported research which suggests that male rape is often carried out
by heterosexual men against victims whom they regard as homosexuals; she also
suggests that courts sometimes take an uninformed view of the significance of
sexual attacks by men on men. The module document Rape and the criminal
justice system (section 4.2) mentions research on the cross-examination of male
victims of rape during trials.

5.4 Police and prosecution responses to complaints of rape


Following widespread concern in the 1980s about how the police handled
complaints of rape new guidance was given and many police forces appeared to
put effort into changing attitudes and practice in this field. It is sometimes
assumed that this means that rape victims are now treated much better when
they report the rape.
However, research by Temkin suggests that "Disbelieving and stereotypical
attitudes about women who report rape persist", at least within the Metropolitan
Police Service. Jordan has shown how the same failure of intended reforms to be
reflected in practice has been seen in New Zealand.
Although the number of recorded rapes has increased considerably over the past
decade, the number of prosecutions has not kept pace, and the proportion of
prosecutions which result in an acquittal has risen.

Research for the Home Office has pointed out that whilst in 1977 about 32% of all
reports of rape resulted in a conviction, that figure had reduced to 5.6% by 2002.
(L. Kelly et al. A gap or a chasm? Attrition in reported rape cases Home Office
Research Study 293, 2005, p.25; full text available online at
http://www.homeoffice.gov.uk/rds/pdfs05/hors293.pdf, last accessed 3/3/2008.
See also the 'Rape & CJS' handout, section 4.1.) More recent research has
confirmed that the figure is approximately 6%. (A. Feist Investigating and
detecting recorded offences of rape Home Office Online Report 18/07, 2007; full
text available online at http://www.homeoffice.gov.uk/rds/pdfs07/rdsolr1807.pdf,
last accessed 3/3/2008.)
The Crown Prosecution Service will decline to prosecute a case of rape if there is
not a realistic prospect of conviction, or where they believe the public interest
does not require a prosecution. In recent years the CPS has confirmed that it will
not simply accept at face value a statement from a complainant that they wish to
withdraw the complaint:
If we suspect that the victim has been pressured or frightened into
withdrawing the complaint, we will ask the police to investigate further. If
necessary, we will ask the court to delay any hearing so that a thorough
investigation can take place before we decide about the future of the case.
If the victim confirms that the complaint is true but still wants to withdraw
that complaint, we will consider first whether it is possible to continue with
the prosecution without that evidence (the evidential test) and then, if it is
possible, whether we should continue with the case against the victims
wishes (the public interest test).
(Crown Prosecution Service Policy for prosecuting cases of rape c.2005; full
text available online at
http://www.cps.gov.uk/publications/docs/prosecuting_rape.pdf, last
accessed 3/3/2008.)

6 Some issues in criminal procedure


6.1 Introduction
As will have become clear in the previous section, whatever legislators and courts
may have decided about the substantive rules regarding criminal liability in any
offence, other factors play a considerable part in determining whether offenders
will be found guilty.
When a case reaches court many rules of procedure operate to determine the
manner in which the court can deal with it. This section of the module considers
some examples of the rules governing the presentation of rape cases in the Crown
Court. As you might expect, some very significant policy issues arise.

6.2 Sexual history evidence and cross-examination of complainants

The central issue is the perception of many women that they have been treated
as though they were the accused when a rape case is tried. Much public attention
during 1997 - 98 was given to a few cases in which defendants in person crossexamined complainants in an intimidatory manner: see e.g. Brown (Milton) [1998]
EWCA Crim 1486. That problem has been addressed by the Youth Justice and
Criminal Evidence Act 1999. However, this should not be allowed to distract
attention from the manner in which barristers cross-examine complainants.
You need to be aware of the research which shows how the law worked in practice
under s.2 of the Sexual Offences (Amendment) Act, 1976 and the cases
concerning that provision (e.g. Viola, Brown).
You also need to know how s.41 Youth Justice and Criminal Evidence Act 1999
changed the law on sexual history evidence, including the interpretation of the
new law by the courts in the light of the Human Rights Act (R. v. A.), and the
assessment of whether the 1999 Act is likely to have ended the problems
associated with s.2 of the 1976 Act. The issues are dealt with in some detail in the
rape handout, section 4.2.
The Home Office has published the report of a major review of the operation of
s.41 YJCEA. One of the findings of the review was that the new provisions had not
had any effect in halting the decline in the proportion of rape prosecutions which
result in a conviction. The report also found that procedural rules about how s.41
was to be implemented by the courts were frequently ignored, and contains
extracts from interviews with judges and barristers about the operation of the law.
The Rape & CJS handout contains extracts from the report which you should
ensure you have read. (Liz Kelly, Jennifer Temkin, Sue Griffiths Section 41: an
evaluation of new legislation limiting sexual history evidence in rape trials Home
Office Online Report 20/06; full text available online at
http://www.homeoffice.gov.uk/rds/pdfs06/rdsolr2006.pdf, last accessed 3/3/2008.)
[It is possible to suggest that s.100 Criminal Justice Act 2003, which limits the
admissibility of evidence of the bad character of a person other than the
defendant, applies to the cross-examination of complainants in rape cases.
However, it has been argued by Colin Tapper that the CJA will have no significance
in these circumstances because the YJCEA already applies stricter tests to what
can be asked in cross-examination in rape trials. For the purpose of this module
the view of Tapper has been adopted; no details of Part 11 Ch. 1 of the CJA 2003
will be given. See C. Tapper "Criminal Justice Act 2003: Part 3: Evidence of Bad
Character" [2004] Crim. L.R. 533, 553(July).]

6.3 The defendant's bad character


The Criminal Justice Act 2003 has profoundly changed the regime which controls
how much a court may know about the 'bad character' of the defendant. In
particular, the Act, which applies to all offences, permits the prosecution (subject
to some not very stringent limitations) to give details of the defendant's criminal
convictions for offences of the same type as the current charge.
The essence of the new provisions was well explained by Roderick Munday:
Chapter 1 [of the CJA 2003] imposes a complex new regime under which
evidence of a defendant's bad character will become far more readily
admissible than was formerly the case. Virtually all previous statutory and
common law rules have been extirpated.

Although the foundational principle underpinning evidence of bad


character remains one of exclusion, in s.101 the Act enumerates seven
situations, habitually referred to as "gateways", via which a defendant's
bad character may become admissible. In practice, the principal gateway
will be that of s.101(1)(d), which provides:
"(1) In criminal proceedings evidence of the defendant's bad character
is admissible if, but only if
(d) it is relevant to an important matter in issue between the
defendant and the prosecution."
The notion of an important "matter in issue" between defendant and
prosecution ... is further defined in s.103:
"(1) For the purposes of section 101(1)(d) the matters in issue
between the defendant and the prosecution include (a) the question whether the defendant has a propensity to
commit offences of the kind with which he is charged, except
where his having such a propensity makes it no more likely that he
is guilty of the offence;
(b) the question whether the defendant has a propensity to be
untruthful, except where it is not suggested that the defendant's
case is untruthful in any respect."
In layman's terms - and without entering into every wrinkle of this
treacherous provision - s.103 tells us that, amongst other things, for the
purposes of gateway s.101(1)(d) the court may treat as matters in issue
either evidence that shows that the defendant has a propensity to commit
the kind of offence charged or evidence that the defendant has a
disposition to untruthfulness - provided always that, as required by s.112,
these are matters in issue between the Crown and the defence that are of
substantial importance in the context of the case as a whole.
(R. Munday, 'Bad character rules and riddles: "Explanatory Notes" and true
meanings of s.103(1) of the Criminal Justice Act 2003' [2005] Crim. L.R.
337; Law Library; full text also available online via Westlaw.)
You should be aware of these basic provisions; it would also be interesting to read
Munday's article since it deals with points on which the Explanatory Notes
published with the Act by the Government may seem to be at variance with the
words of Act itself if literally interpreted.

6.4 Anonymity
Should people who allege rape remain anonymous throughout the investigative
and court processes? If there is an argument in favour of anonymity for the
complainant, is there an equally good argument for protecting an alleged rapist
through anonymity? If so, should the anonymity continue after charge, or even
after conviction?

6.5 The corroboration warning

Until recently the law was that for most sexual offences, including rape, the judge
had to warn the jury of the (alleged) danger of convicting solely on the basis of
the evidence of the complainant. However, s.32(1) of the Criminal Justice and
Public Order Act 1994 changed the law:
Any requirement whereby at a trial on indictment it is obligatory for the
court to give the jury a warning about convicting the accused on the
uncorroborated evidence of a person merely because that person is
(a) an alleged accomplice of the accused, or
(b) where the offence charged is a sexual offence, the person in respect of
whom it is alleged to have been committed,
is hereby abrogated.