Independent legal representation is a necessity for victim-survivors

Olivia Clarke is a BSc student in the Department of Psychology at the University of Bath. Dr Tina Skinner is Associate Professor in the Department of Social and Policy Sciences at the University of Bath. Amelia Smith is a BSc student in the Department of Psychology at the University of Bath. Dr Olivia Smith is Associate Professor in the School of Social and Policy Studies at the University of Loughborough.

With only 1.6% of reported rapes resulting in charges or summons to court (see also: Crime outcomes in England and Wales, year to December 2020: data tables), and over 80% not even being reported to the police, on 18 June 2021 HM Government admitted that the criminal justice system is failing victim-survivors.

Greatly increased requests for digital (e.g., phones) and third party (e.g. school or mental health records) evidence from victim-survivors after the R v Allan case in 2017 had intensified victim-survivor scrutiny, and reduced police charging and court summons to their current low. With sexual offences causing immense distress and harm to those victimised, and victim-survivors not having the confidence with the criminal justice system due to aggressive questioning, leaving them feeling as if they are on trial, it is perhaps not so surprising that few victim-survivors report to the police. The criminal justice system is not only failing victim-survivors, but also harming many of them.

In previous publications (see How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials and Evaluation of the Sexual Violence Complainants’ Advocate Scheme) we called for independent legal representation for victim-survivors to reduce the trauma associated with needless scrutiny of victim-survivor’s personal lives.

Independent legal representation aims to provide legal support, aid, and advice to complainants to prevent aggressive and inappropriate questioning; help victim-survivors with data consent forms; and prevent further damage to victim-survivors’ mental health. Whilst we welcome HM Government’s pledge to consult on - and pilot access to - legal advice to rape victim-survivors, this delays rolling out the service across England and Wales, when there has already been an evaluation of such a service in England, the system is already proposed in Scotland, and Ireland already has independent legal representation, as does much of Europe.

Evidence on the effect of re-traumatisation

Research from the Victim Commissioner’s office found that, of the 42 victim-survivors that went to court, 36 were re-traumatised by the cross examination. Annie Cossins indicates that a trial can increase the activation of the autonomic nervous system in victim-survivors, and this higher arousal state leads to the resurfacing of vivid memories from the time of the assault(s). If complainants fail to receive adequate support, they become re-traumatised. A further study found that of 251 victim-survivors involved in criminal proceedings for a sexual violence case, 69% were diagnosed with post-traumatic stress disorder due to such re-traumatisation.

There are two distinct consequences of complainant re-traumatisation. The first is severe negative effects on mental health, with 46% of re-traumatised women experiencing dissociation - in comparison to only 13% of women who experienced a sexual assault only. Further, 45% of re-traumatised women had attempted suicide, compared to 13% of the assaulted women not re-traumatised.

Secondly, re-traumatisation of complainants, or fear of re-traumatisation, can lead to long-term disengagement with the legal system. Where victim-survivors of rape and sexual assault become aware of the treatment of complainants within the criminal justice system, Rachel Killean and colleagues argue that there is a decrease in the number of victim-survivors willing to expose themselves to questioning from defence lawyers. This is detrimental to the already low rates of reporting.

Policy and practice

Much has been done over the last 30 years to try and address the poor treatment of victim-survivors within the criminal justice system, but the results have been disappointing.

The 1999 Youth Justice and Criminal Evidence Act introduced ‘special measures’ to alleviate the stress on vulnerable and intimidated victims/witnesses giving evidence in court. These included witnesses providing evidence through recorded video interviews played to the court, and being able to give evidence behind a screen or via a live television link. Whilst these changes were welcomed, Olivia Smith found substantial limitations to their application in practice, including video links and videos not working and special measures simply not being available causing substantial delays.

Section 41 of the Youth Justice and Criminal Evidence Act, that was supposed to limit invasive sexual history questioning of victim-survivors, has had varying effectiveness in curbing the use of sexual history evidence in courts (see for example Baird et al, 2016 compared to Smith, 2018). With Mark Kebbell and colleagues’ research indicating that cross-examinations was one of the most distressing parts of the experience of the criminal justice system for victim-survivors, more needs to be done to assist victim-survivors in court. Several studies, including Olivia Smith and Tina Skinner’s, in their research undertaken in 2012, and Rachel George and Sophie Ferguson’s in their research undertaken in 2021, found that even with enhanced training, and judges having the possibility to use rape ‘myth buster’ statement if needed, judges and defence barristers still fail to intervene when irrelevant lines of questioning (often linked to rape myths) are used.

Rape myths may be about the perpetrator or the victim-survivor, they move the blame for the rape from the perpetrator to the victim-survivor, and often belittle the seriousness of what has happened. Some examples of rape myths include: any delay of reporting the assault is suspicious; if the victim-survivor does not fight back then it is not rape; apparently ‘nice’ or ‘good looking’ men don’t rape; and women are ‘asking for it’ when they wear revealing clothes. Jaqueline Gray and Miranda Horvath found that lawyers who believe in rape myths are less likely to challenge their use in court.

A further myth that is prevalent today is that what a victim-survivor says in social media posts is an accurate predictor of whether they actually consented to have sex with the alleged offender at the time the alleged offence was taking place. This is because it assumes that a person cannot remove consent after giving, or appearing (in social media and/or private phone messages) to give, consent to sex.

Since the R v Allan case in 2017, where the complainants’ digital phone data was initially not disclosed to the defence, there has been a proliferation of digital and third party disclosure requests to victim-survivors reporting to the police. Victim-survivors who report to the police are asked to sign a consent form that enables prosecutors and defence barristers to access sensitive and private personal information, such as mobile phones and mental health records. Research indicates that many victim-survivors do not fully understand the form they are signing, not realising they are allowing access to their records and mobile phone data. Recently published evidence from the Victims Commissioner, and Phil Rumney and Duncan McPhee, show that victim-survivor’s phones were more likely to be accessed than those of the accused, with a lack of evidence explaining the disparity.

To try to address some of these issues, HM Government has pledged to: implement the Attorney General Disclosure Guidelines and Criminal Procedure and Investigation Act Code of Practice; “Consult on how to enhance support and access to legal advice for rape victims so they are able to understand and challenge information requests from the police and prosecutors for digital and third party material”; “Test a new entitlement for rape victims to challenge the scope of information requests at the police investigation stage with Thames Valley Police”; “Introduce a statutory code of practice that will give specific guidance to authorised persons when extracting the information of vulnerable victims, including the right of victims to refuse such extractions”; and “Direct £5m to a national fund to accelerate growth in the capacity of police forces to acquire and manage evidence from digital devices so victims get their phones back quicker”.

Further, they have stated that “Only evidence about the victim that is pertinent to the case is [to be] deployed at court and a victim’s credibility is not [to be] undermined by pre-conceptions or rape myths”. To do the latter they have asked judges to “consider” the end-to-end review findings and for the Law Commission to review how rape myths are addressed in court.

Whilst it is important for the Law Commission to review the use of rape myths in court and how judges/prosecutors combat them, a more fundamental cultural change is needed. Without that, the victim-survivor needs effective protection from overly invasive investigations and questioning.

The HM Government’s pilot of victim-survivor’s access to legal advice, if well-funded and deployed, should be able to do this. But we already know this is the case, from a recent pilot in Northumbria, and it is not clear from the Government when or through which parts of the process this advice will be available.

The Victims of Abuse (Support) Bill currently being reviewed through the houses of parliament needs to aim for a more fundamental cultural change in the courts; and more imminent mainstreaming of independent legal representation for victim-survivors by HM Government is needed now. It needs to happen so the harm done to victim-survivors by the criminal justice system is reduced sooner.

Independent legal representation

England and Wales are one of only a few countries without some form of independent legal representation. Ivana Bacik and colleagues in the late 1990s conducted a comparative analysis of legal measures involving rape on 15 member states of the European Union. It was found that every country apart from England and Wales provided some form of legal aid to complainants.

In Germany, victim-survivors are eligible to Private Accessory Prosecutors, allowing them to be legally represented before the trial commences. The lawyer is often paid for by the state - if victim-survivors meet the criteria for legal aid - and offers advice as well support to the victim-survivor in exercising their existing rights.

In Canada, rape complainants can also have their own counsel to advise them on applications for access to medical and therapy records by invoking their own privacy and equality rights.

Since the 1980s, victim-survivors of sexual offences have had the right to private legal counsel in Denmark and Sweden. In Sweden independent legal representation is state funded and lawyers represent victim-survivors throughout the case, including initial reporting and questioning as well as providing advice about the trial and compensation claims. Ireland  also has independent legal representation, which is currently extending to also provide court representation if sexual history evidence is to be raised.

To investigate whether independent legal representation should be rolled out in England and Wales, Olivia Smith and Ellen Daly evaluated a pilot Sexual Violence Complainants’ Advocate scheme in Northumbria. Legal support and advice were provided to 83 rape complainants between September 2018 and December 2019. Solicitors were most commonly used to provide advice and expertise on data requests and attended the interview, they did not attend court. Advocates challenged data requests in 47% of cases with 67% of these resulting in the requests being amended or withdrawn.

Victim-survivors provided very positive feedback on the scheme and felt more confident with the criminal justice system, as they had someone to help them understand the legal system as well as feeling they had someone who they trusted and felt would hold criminal justice practitioners to account.

After conducting interviews with practitioners and stakeholders, the researchers’ found no evidence of a negative effect on the accused’s right to a fair trial, and 31 of 34 practitioners interviewed wanted the legal advocates to become a permanent part of the support available to victim-survivors.

Policy recommendations

• Give all sexual offences victim-survivors access to independent legal representation in order to provide support and information regarding the legal process, and challenge inappropriate request for evidence and questions throughout the process, including in court.
• Legal representation should be independent from the criminal justice system and liaise with the police, prosecutors and courts on behalf of the victim-survivor.

All articles posted on this blog give the views of the author(s), and not the position of the IPR, nor of the University of Bath.