Sex crime: why the truth matters

Last week Keir Starmer QC, the director of public prosecutions (DPP) and head of the Crown Prosecution Service (CPS), proposed further reforms to make it easier to prosecute sex cases. In the course of a series of media appearances, Starmer denounced the ‘crude’ tests which had been applied to assessing a complainant’s credibility in the past. He said that victims needed to be confident of a ‘full investigation’ into their allegations, whether or not the police think the complaint is likely to be true.

The announcement follows the publication earlier this year of a report by Alison Levitt QC, which had been ordered by Starmer to assess the CPS’s treatment of allegations about the disgraced children’s presenter Jimmy Savile. The report was critical of the way complainants’ credibility had been assessed when the allegations had been made, concluding that there may have been greater scope for ‘building’ a prosecution.

Starmer robustly denounced the methods which had been employed by CPS lawyers in the past to judge complainants. He said it was wrong, for example, to doubt a complainant because they were drunk or on drugs at the time of the alleged incident. It shouldn’t matter that a complainant took a long time to report what had happened. All of these were ‘crude tests’ which had been used by Crown lawyers in the past to improperly dismiss the credibility of a complainant. ‘When you go and report a burglary’, Starmer said, ‘the first question asked of you is not whether you are telling the truth’.

Starmer’s elision of burglaries with sexual offences is ludicrous. Obviously, when a burglary has taken place, there will be objective evidence of what happened. In a case involving sexual allegations, the evidence is often one person’s word against another. A complainant’s credibility is obviously of greater concern to a prosecutor when there is little or no evidence to corroborate what a complainant is saying.

Of course, all of the tests Starmer describes as ‘crude’ are in fact common-sense ways of judging whether someone is telling the truth. But such is the climate around sex cases that common sense flies out of the window. Starmer was right when he said that the justice system had ‘evolved’ over the past 20 years to take account of ‘victim’s rights’. The result has been an unrelenting willingness to publicly pursue prosecutions, and an unflinching deference to the position of the victim at the expense of those they accuse.

The reality is that these tests will continue to be applied to complainants. If not by the CPS lawyers, then by the jury once the case gets to court. Because jurors are made of people in the real world, they understand that these ‘crude’ tests are actually effective as the means through which a person’s evidence can be tested. In removing the ability of his lawyers to ask common sense questions about a complainant’s account, Starmer is not doing complainants any favours: he is merely prolonging the moment when a complainant will have to explain the weaknesses in his or her account.

Following Operation Yewtree, the police and the CPS have slowly abandoned objectivity in the way these cases are handled. Starmer’s reforms may well mean that more people are prosecuted, but at the same time they will limit the system’s ability to get at the truth. While Starmer chastises those in his own organisation for daring to exercise judgement, we should remember that such judgements are the only way through which the law can effectively, and fairly, find its answers.

Luke Gittos is law editor at spiked, a paralegal in criminal law and convenor of the London Legal Salon.