Standing Committee B
Second Sitting
Tuesday 9 September 2003
(Afternoon)
[Mr. Roger Gale in the Chair]
Clause 1
Rape
Amendment moved [this day]: No. 22, in
clause 1, page 1, line 14, leave out from 'conviction'
to end of line 15 and insert—
'(a) if the offence occurs during or after an acknowledged sexual relationship between the parties to a term of 5 years imprisonment.
(b) otherwise, to imprisonment for life.'.—[Mr. Malins.]
2.30 pm
Mr. Humfrey Malins (Woking): Welcome to the Chair, Mr. Gale—it is good to see you. Before lunch, I was referring to amendment No. 22, which sets out two types of rape. It reflects something of an artificial approach, but I drafted it to enable a discussion to take place on the difficulties faced by courts in respect of convictions for rape.
I repeat my argument that rape is now an offence made up of a number of categories. The most straightforward and easy case for anyone to deal with is complete stranger rape. It forms a minority of rape cases, but it is more straightforward in terms of consent, the trial, and the jury's position in assessing the evidence. Other cases are not so straightforward, involving, for example, an allegation of rape either by an existing partner or by a person with whom there had been a previous sexual relationship.
I wish to set out the sort of problem that a jury might face. Let us consider a 26-year-old man with an otherwise unblemished reputation who is in work, of good character and who had had a sexual relationship with a woman of a similar age. The relationship finishes. Some months later, they meet again and drink together at a club. Perhaps after pressure from the young man, sex takes place during the evening. Let us suppose that the young man is charged with rape because the woman said that she did not consent to sex and that she was under severe pressure. The case goes before the court.
Juries find such cases very difficult to decide, as do the courts to pass sentence. One reason why there are so many acquittals in rape cases is that a jury faced with such a young man will often strain every sinew to bring in a not guilty verdict, mainly because the sentence for such a young man with no previous convictions who is involved in such a fight in the Crown court will inevitably be five years or thereabouts. They jury does not want that to happen.
Sandra Gidley (Romsey): I am concerned about the continual references to unblemished records and no previous convictions. Such matters are irrelevant in such cases—clearly any person who is taken to court for the first time has an unblemished record and no
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previous convictions. We must try to get away from arguments about history. Will the hon. Gentleman explain why such matters are so important?
Mr. Malins: With great respect, my point is a very good one. [Laughter.] I shall tell the hon. Lady why. Let us suppose that the defendant is giving evidence. Before he does so, his barrister will ask him if he has ever been in any kind of trouble before. If the answer is no, he is thus revealed as a man of previous good character. The judge, in summing up, will give the jury a specific direction as to his unblemished character and how that should be taken into account. That relevant point illustrates the difficulty faced by juries.
We all know that sexual offences, especially rape, are under-reported. One hesitates to use statistics, because they are not entirely reliable. There could be X thousand rapes reported in one year: some cases go to court in the same year, some do not go to court until the next year and some only go to court for sentencing the year after. Although year-on-year figures can never be deemed entirely accurate, they may be illustrative none the less.
The Committee will be interested to hear that in 2000–01 some 8,000 rapes were recorded by the police. Surely, that was not the total number of rapes committed. The findings of the British crime survey—a computerised self-completion survey of some 30,000 or so adults—gives a much more complete picture, because it covers unreported, and therefore unrecorded, crimes. The figures from that survey suggest that only one in seven rapes are reported to the police and thereby recorded.
Why is there so alarmingly little reporting of rape? In most cases, women are raped or sexually assaulted by men they know. Around one half of all rapes are committed by a current partner and a high proportion of rapes are committed by a previous partner. That is one factor that makes it less likely that a woman who has been raped will go to the police. In contrast, stranger rape accounts for less than 10 per cent. of all rapes.
What happens when rapes are recorded and investigated? Only 25 per cent. of the 8,000 rapes reported in 2000–01 resulted in a court case. Of the 2,000 cases that went to court only 550 or thereabouts—approximately 25 per cent.—resulted in a guilty verdict. There is something strange about that, given that the average percentage of convictions on a not guilty plea across the board in the Crown court is about 70 per cent. or a little higher. Why is the figure so low for rape?
I have already mentioned the difficulties facing juries. There is perhaps a tendency to acquit even in the face of overwhelming evidence of guilt of rape within partner-type relationships, or of rape involving people who previously had a relationship. One has only to consider the average sentence to realise that a jury takes on a huge responsibility when it produces a verdict on rape, particularly on a young man with no previous convictions. The average sentence nowadays is some six years on a guilty plea to rape, and seven years on a not guilty plea resulting in a conviction.
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We must put ourselves in the position of a jury faced with a rape allegation against the kind of young man that I described and realise that its task is difficult for two reasons. First, and principally, it is difficult because the jury recognises the enormity of convicting a person with no previous convictions, who has had an acknowledged previous sexual relationship with the girl, when they know that the result after a contested case is likely to be a seven-year sentence and total ruin. I am afraid that that is a fact of life and something ought to be done about it.
Secondly, leaving aside my last point entirely, juries also have difficulty convicting because often, particularly in non-stranger rapes, there is no evidence beyond that of the man and the woman; evidentially the cases are difficult, particularly with regard to consent. That problem is made worse nowadays by the fact that young men and women—not just 17 to 19-year-olds, but people in their twenties and early thirties—engage in much more heavy binge drinking than was the case years ago. Many rapes arise from circumstances in which alcohol has had a huge influence on either or both parties. That presents an evidential difficulty because memories naturally become blurred, and sometimes what happened the night before is almost forgotten.
Why have I tabled the amendment? I believe that many juries would be more prepared to give a guilty verdict if they were of the view that a six or seven-year sentence for the defendant would not be automatic. I am not at any stage seeking to say that rape is other than a very serious offence. However, I hope that there are Committee members who will follow my argument, namely, that there is that reluctance.
Julie Morgan (Cardiff, North): Is the hon. Gentleman trying to say that rape is a less serious, more allowable crime when there is a previous or current sexual relationship?
Mr. Malins: No, but the hon. Lady poses a fair question. Rape is rape and is terribly serious. I do not seek to say that one type is heinous and one is minor. Rape is a very bad crime. I simply say that most rapes that come before the courts occur in current relationships or in past relationships that have started again, and in many such cases juries are reluctant, for reasons that I hope I have explained, to bring in a guilty verdict because of the stringent sentence that follows automatically. That is the only issue and difficulty that I point out. I do not seek at any stage to try to categorise one type of rape as class A and another as class B—we all know that rape is a horrible crime. However, I wonder whether juries might be more inclined to bring in a guilty verdict if there were slightly more scope for variations in sentencing—I put it no higher than that.
Far be it from me to say that rape does not deserve an immediate custodial sentence. In principle of course it does. However we in the legal profession know that there is very little movement in sentencing on rape cases; they almost always involve a substantial custodial sentence. I put that as a problem before the Committee. We all accept that rape is frightfully
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serious and a horrible offence, and we have to accept that it is grossly under-reported and that the conviction rate for rapes within relationships are very low. That is the problem; I have no answer to it.
Stephen Hesford (Wirral, West): If the hon. Gentleman's argument was left where it is, it would be difficult to have sympathy with it because, as my hon. Friend the Member for Cardiff, North (Julie Morgan) said, there would be categories of rape, and I am not sure that that would do. Some progress might be made through more imaginative sentencing on a guilty plea. An incentivising regime, marking the seriousness of the case whilst absolving the complainant from going through the court process, might address what the hon. Member for Woking (Mr. Malins) suggests is a potential difficulty.
2.45 pm
Mr. Malins: I thank the hon. Gentleman for a very constructive response. That may be a way forward. I hope that I have done my duty today by raising what I regard as a series of problems. The amendment that I tabled, which of course I will not press to the vote because it would be wrong to do so, was intended as a trigger to promote discussion about sentencing in rape cases, and the difficulties that juries have, particularly with the types of rape that I have talked about. I hope that there will be time in future for discussions on how to solve the real problem that I have identified. I have no answers, but many of us in this House know how to raise queries, so my job is done at least in part.
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