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12 June 2019

Prosecution, deterrence and prevention of sex offences in the digital age

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Earlier this week JUSTICE’s latest Working Party report on “Prosecuting Sexual Offences” was launched supported by Corker Binning and the Dawes Trust. Members of the Working Party were drawn from a wide range of professionals working in the criminal justice system from organisations such as the National Crime Agency, the Crown Prosecution Service, along with judges, academics, barristers and solicitors with experience defending and prosecuting sexual offences.

Inevitably given the contentious subject matter, the press attention has focused primarily on one particular recommendation; the proposal for a new conditional diversion scheme in respect of those found in possession of indecent images of children. It is envisaged that the scheme would only be offered to those who commit first-time offences or who have no relevant convictions. While nothing should belittle the seriousness of such offending, the majority of those convicted of these offences at present receive suspended sentences or community penalties. If they receive custodial penalties, these will be short. Studies show that the experience of being caught and then appreciating why what a person has done is so very wrong is key to reducing reoffending. A conditional diversion scheme that involves attendance upon an awareness programme with structured sessions would help ease the burden on the criminal justice system while effectively tackling the risk of reoffending and reducing the current high risk of suicide. If an individual failed to complete the scheme, they would then face prosecution.

However, there is much more to the report than the conditional diversion scheme. It is just one of 57 wide-ranging recommendations, aimed at preventing sexual offences from occurring in the first place, placing increased responsibility on internet service providers, reducing the risk of reoffending, and improving witness evidence and the efficiency of the legal process.

As acknowledged by a senior police officer quoted in the report, it is plain that “we cannot arrest our way out of the problem”. The Working Party therefore considered that more focus needed to be placed on preventing sexual offences from being committed in the first place, as well as improved sex education in schools and a national campaign that teaches about coercion. An example of a key recommendation aimed at prevention is that internet companies should be required to report to Companies House what they are doing to stop sexual offences taking place on their platforms. A director of an internet company that fails to make such a statement as part of their annual report or makes a false statement should be held criminally liable, resulting in a fine for the company or a sentence of up to five years’ imprisonment for the director. This approach builds upon that which has already been proposed by the Government in their recent Online Harms White Paper and is similar to the obligations in the Companies Act 2006 on corporate social responsibility.

The report also recognises that there have been major improvements in recent years in the way sexual offences have been tried, however, as noted by the former DPP Alison Saunders at the launch, there is still lots more to do and there are a large number of recommendations aimed at improving witnesses’ experience of giving evidence and the trial process itself.  For example, the report recommends greater focus on the need for Grounds Rules Hearings to assess the needs of complainants, many of whom are vulnerable, in giving evidence and that pre-recorded cross-examination of complainants should be made available as soon as possible for all sexual offence prosecutions.

Another controversial topic in recent months has been the disclosure of evidence, particularly in relation to evidence held on mobile phones. The report considers that the new nationally applicable consent form which has recently been introduced is an improvement. It should be further refined to detail the specific information required by the investigators, explain its relevance to the investigation and confirm a reasonable return date to the complainant of the device. The current law requires the police to obtain the data on a complainant’s device where it is relevant to the investigation. The warning that failure to hand over a device to the police may halt the investigation or prosecution caused the Working party concern. It is recommended that the CPS should only be able to refuse to consider a prosecution if the evidence held on the phone is integral to the decision to charge. Anything approaching a blanket approach of refusing to investigate further may both deprive complainants of access to justice and dissuade individuals from reporting crimes for fear of being disbelieved.

JUSTICE has a long history of using Working Parties drawn from its membership to promote reform of the law, often in areas which are difficult and controversial. The recommendations contained in this report running to some 120 pages go some way to open up and inform the debate about a reasoned and mature approach to changes in the law. Its proposals, some of which build on current government policy, may eventually result in the more effective and just prosecution of sexual offences in the interests of complainants and defendants, as well as the prevention and reduction of sexual offences wherever possible.

The full report can be found here.

Anna Rothwell, Nick Barnard and Danielle Reece-Greenhalgh served on the Working Party

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