Evidence in sexual offence prosecutions – Law Society response

The government, as part of recommendations in its Rape Review, asked the Law Commission to examine the trial process and to consider the law, guidance and practice relating to the use of evidence in prosecutions of sexual offences.

Read the government's rape review report

The proposals

The Law Commission’s proposed reforms have three goals:

  • improving understanding of consent and sexual harm by countering the effects of rape myths
  • improving the treatment of complainants, and
  • ensuring that defendants receive a fair trial

Proposals include:

  • methods to help jurors better understand misconceptions about rape
  • greater judicial oversight of how evidence is obtained and used
  • helping complainants to understand their rights and be more involved in decisions about their personal records and evidence of their sexual behaviour
  • protecting the defendant’s right to a fair trial by ensuring that they can present evidence relevant to their defence without causing unnecessary trauma to the complainant

Our view

We support measures that can improve the experience of complainants that do not adversely affect defendants’ right to a fair trial.

We agree that:

  • the law concerning the admission of sexual behaviour evidence could be rewritten in the way the Commission proposes
  • many measures to help complainants and witnesses to give evidence should become automatic entitlements
  • if citing evidence relating to past false allegations, permission should be sought first
  • defendant bad character evidence does not require change
  • where a complainant’s good character evidence is in issue, it is right that the judge gives appropriate directions

We also welcome the proposal that complainants in sexual offence cases should have access to free legal advice and representation. However, it is vital that this advice is provided by qualified and experienced legal practitioners, and that the work is properly funded.

We disagree on two main issues.

  • We do not believe a bespoke regime for disclosing third-party material in sexual offence cases is either necessary or desirable
  • We do not agree it would be helpful to admit general expert evidence about common behavioural responses to sexual violence – we believe that judicial directions are a better way to help juries decide the individual case before them

What this means for solicitors

Legal aid defence lawyers, both solicitors and barristers, are already struggling with unmanageable workloads and many are leaving the profession.

We believe that making training a pre-condition of conducting publicly funded sexual offence cases will place unacceptable financial, regulatory and administrative burdens on solicitors whose resources are already very stretched.

Proposals for complainants to receive free legal advice will only work if introduced alongside sustainable legal aid rates.

Find out more about our fight for fair legal aid funding

Next steps

The consultation closed on 29 September 2023.

The Law Commission plans to publish its final report with recommendations in 2024.

Learn more about the consultation