Presentation by A Carline at the University of Birmingham IPV Conference 2/3/18

1. www.le.ac.uk
Improving Criminal Justice
Responses to Sexual Violence:
Perspectives from Barristers in
England and Wales
Dr Anna Carline – Leicester Law School
Dr Clare Gunby – Dept of Criminology
With acknowledgment to the British Academy for funding this research

2. Methodology
● Study 1: 14 barristers from the North West of England
in 2010
● Study 2: 39 barristers from London, Manchester,
Birmingham and Leeds, from 2014-2016
● Funded by the British Academy

3. Key findings
● Impact of the SOA 2003
● Prosecutorial decision making
● Action plans and tool kits
● Bench book directions

4. Impact of the SOA 2003
● ‘Greater clarity in the law as it relates to
consent’ (Home Office, 2002: par 11)
● Statutory definition of consent:
● ‘A person consents if he agrees by choice and
has the freedom and capacity to make that
choice’ (s74)
● Evidential (s75) and conclusive presumptions
(s76)

5. ● Consent definition: useful to practitioners, not
necessarily the jury – ‘preventing judicial ad
libbing and anecdotal comparisons’ (S1)
● Presumptions: not used or well understood
● Do not overload the jury ‘with either too many
counts or too much law’ (S1)
● No, No, they’re hardly ever given, they hardly
come into play

6. ● Men rea: overwhelming support
● ‘I think it has to be objective. I think it’s just a
copout to make it subjective’ (S1)
● ‘I think it’s right that, that is there, that you
can’t just say, well, I though she was consenting
because I think everyone fancies me and I can
have sex with who I like. I think it’s relatively
easy for a jury to understand ... So, yes, I
approve of that change’ (S2)

7. Prosecutorial Decision Making
● CPS ‘err on the side of caution’ (S1)
● ‘75 per cent change of conviction’ (S1)
● CPS ‘ so concerned about conviction rates and
they’ve got so many reports to fill in when people
are acquitted or whatever that they’ve raised the
bar quite significantly’ (S1)

8. ● ‘Culture of running with every case’ (S1)
● ‘When it’s a rape case, there’s tendency to say,
well, it’s rape and therefore it’s in the public
interest, and therefore we’ll try it’ (S1)
● Merits Based v Bookmakers?

9. ● ‘And I have problems with the merits based test
because there’s a tension between the merits
based test and what I would call the cat in hell’s
test
● The cat in hell’s test is where an experience
advocate who has done a lot of cases of the kind
in question, will be able to get a feel for whether,
having read the papers, there’s any chance of a
jury convicting’ (S2)

10. ● ‘...the CPS seem more reluctant to drop them.
Which is an advantage and a disadvantage. The
disadvantage means that more - and it's generally
speaking - women are put through the trauma of
either going to court or giving their evidence.
Um, the advantage is it gives more people the
benefit of the doubt and it's not chopped off
halfway, saying we don't believe you, um,
therefore…or the evidence isn't strong enough,
therefore we won't go ahead’ (S2)

11. ● ‘So, um, yes, I'm quite sure that…that the
standards have changed, er, rightly though. I
think…I think they were wrong, um, in the first
place. I hope…I hope it's for the better’ (S2)

12. Action Plans and Tool Kits
● CPS and Police Joint Action Plan on Rape
● Advocacy Training Council (ATC) Toolkits on
Interviewing Vulnerable Witnesses and
Defendants
● Little awareness of the CPS/Police AP amongst
barristers
● Greater awareness of the toolkits developed by
the ATC – procedural in focus

13. ● ‘We’ve got the advocates toolkit as well, that has had
an impact in that you’re not allowed to challenge
vulnerable people, you’re not allowed to put your
case, you’re not allowed to ask certain questions’ (S2)
● ‘…So witnesses who may have an explanation for
inconsistencies aren’t allowed to give them … and
that’s having an impact’ (S2)
● ‘She’s protected from being asked the questions, but
the ultimate aim of having her there, which is to get
the convictions, is just massively undermined’ (S2)

14. Bench Book Directions
● ‘Subjects for stereotyping which could lead the
jury to approach the complainant’s evidence with
unwarranted scepticism’ (2010: 356)
● ‘That’s the very best innovation that there’s been,
as far as I am concerned. I think it’s so
important’ (S2)

15. ● ‘It’s quite right that we are now telling juries that
they can’t just assume because someone didn’t
complain straightaway that , that means the can’t
be telling the truth about it and that people react
in many different ways. And I think that’s
perfectly proper’ (S2)

16. ● ‘I think the courts are doing all that they
reasonably can to demystify the rape myths. Um,
I think it takes a lot more than a judge's direction
to fundamentally alter what is a cultural
belief’ (S2)

17. Conclusion
● Produce effective and positive feedback loops to
engender meaningful policy development
● ‘It’s been made by people who have no real
experience of what does on in a court
room. ...When you’re in a courtroom, it’s
completely different’ (S2)