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10 Aug 2017

Danielle Reece-Greenhalgh comments on jurors in rape trials in Solicitors Journal

The public needs accurate reporting on rape, not ‘tabloid rhetoric’

Jurors in rape trials will be told more about the previous sexual behaviour of male defendants in a bid to increase the chances of conviction.

Alison Saunders, the Director of Public Prosecutions, has told prosecutors to focus on the behaviour of men leading up to alleged rapes, rather than just the incident itself. However, criminal lawyers have pointed out that juries will not automatically hear more about a defendant’s past just because the DPP has willed it so.

“Evidence concerning a defendant’s previous ‘bad character’ is governed by a series of strict statutory provisions under the Criminal Justice Act 2003,” remarked Danielle Reece-Greenhalgh, an associate at Corker Binning. “The prosecution may only make applications to adduce such evidence where the facts of the case require it, and not in such a way as would cause prejudice against a defendant.

“The new guidance implies that prosecutors should find evidence connected to a defendant’s conduct in previous relationships. This would involve a prosecutor requesting that the police follow these lines of enquiry with previous partners.”

Putting aside the reliability of evidence gained from such sources, Reece-Greenhalgh explained that a prosecutor would then have to persuade a judge that such evidence had substantial probative value.

“While previous allegations of rape or serious domestic violence/coercive behaviour similar to the conduct in question might pass that threshold, a court is unlikely to find that evidence of a previous partner who claims generic bad behaviour by the defendant should be admitted for the jury’s consideration.”

“It is unclear how this can be described as a novel approach to sexual offence investigations as this is the type of material which has been gathered for many years,” remarked Reece-Greenhalgh.

She added: “This latest guidance appears to constitute more of a ‘pep talk’ by the DPP to prosecutors than any signal for real change in the way rape trials are conducted.”

Read the full article in Solicitors Journal here