Ministers Defy Judges On Rape Law Reforms

The government is to press ahead with plans to reform the rape laws in an attempt to increase the low conviction rate, despite strong opposition from the judges who will have to put them into effect, the Guardian has learned.

Plans to try to clarify the law on drunkenness and consent are set to be dropped. But ministers are likely to proceed with other proposals outlined in a consultation paper last year, Mike O’Brien, the solicitor general, said in an interview.

“The conviction rate in rape cases is appalling,” he said. “There are too many rapists getting away with it and many of them are repeat rapists.”

Ministers expect to publish their final conclusions this month and to legislate as soon as possible. They pledged to reform the law after the conviction rate dropped from 33% of reported rapes in 1977 to 5.4% in 2005, before rising slightly to 5.7% last year.

But judges who will have to apply the law remain opposed, warning it could greatly increase costs, double the length of some rape trials, and possibly lead to miscarriages of justice. Describing the changes as a “minefield”, the Council of Circuit Judges (COCJ), which represents judges who try rape and other serious criminal cases in crown court, oppose the main planks of the reform which are:

· A power for expert witnesses to give general evidence, not about the specific case, but about how rape victims generally behave, to dispel “myths” that might affect the jury’s reactions;

· An automatic right to use the alleged victim’s videotaped interview with the police in place of her main evidence at the trial;

· Judges say another proposed change, allowing the jury to be told of any occasions when the woman confided in someone else about the rape before telling police is unnecessary, because the court of appeal ruled in a case last year that such reports are now admissible.

Police fear that rapists are targeting young women binge drinkers. But ministers believe that trying to define the point at which a woman becomes unable to give consent is unnecessary.

The law was clarified by the court of appeal last March, when it quashed the conviction of Benjamin Bree, a 25-year-old software engineer found guilty of raping a 19-year-old student after a night of binge drinking. Judges are expected now to leave to it juries to decide the issue rather than throwing the case out.

Judges have privately doubted that the reforms would make much difference to the conviction rate. They have pointed out that the conviction rate dropped because more cases were being reported and prosecutors were going ahead with too many unwinnable cases.

The campaign group Women Against Rape has blamed poor investigation and presentation of cases.

In the COCJ’s unpublished response to the government, seen by the Guardian, the judges warn that the use of expert evidence could be “a minefield”.

They say the distinction between assisting a jury to find the facts and usurping the jury’s function of deciding whether the alleged victim is telling the truth is likely to be “blurred” in the majority of rape cases.

But Mr O’Brien said there was “a considerable amount of support” from consultees for the use of expert witnesses.

The judges also argue against the automatic right to replace the alleged victim’s main evidence with the videotape of her interview with police, arguing that this should be for the judge to decide.