Taking the Michael, in 1996 ?

by Robert Whiston FRSA  Jan 6th 2011

Michael Howard MP, QC, is nobody’s fool, and no matter whether one dislikes or approves of him, as a QC no one is going to pull the legal wool over his eyes.

As a political operator and manipulator of the Dark Art of the Possible he takes some beating – some would say he was peerless. As the last Home Secretary of a Conservative Party that had been in power for over a decade – and which would be out of power for more than another decade – he was not a novice to controversy.

Left: Michael Howard MP, QC, now Baron Howard of Lympne

He guided through what was to become known as “Section 28” which prohibited local governments from the promotion of homosexuality. In another ministerial post he introduced the Poll Tax which was vigorously opposed by the young and the unemployed but welcomed by the old and middle aged as more fair on them (the one group having to pay tax for the first time and the other groups having their bills reduced).

By comparison his time at the Home Office, 1993–1997, was less riotous, less tumultuous. Red in tooth and claw he believed and demonstrated that “prison works”. During his time as Home Secretary, offences fell by 16.8%. He repeatedly clashed with judges and prison reformers who he saw as attempting to dilute his ‘tough on crime’ measures.

Yet the sad truth is that once in office every Home Secretary becomes a mere clone of their predecessor, a puppet of the Whitehall mandarins and a creature of Home Office habits. Melanie Phillips, in her book “The Ascent of Woman” exposes why this is more true of the Home Office than any other Whitehall Dept.

What else could explain his position in a House of Commons debate in June 1996 – which was yet another occasion when sex offences and protection for both victim and defendant stirred emotions.

Obviously primed by his civil service team the Home Secretary, Michael Howard, said the following which is here been broken up into its 4 primary elements:

  • The purpose of any justice system must be to ensure that the innocent go free and that the guilty are convicted.
  • With the conviction rate for rape at less than 9 per cent.–unchanged since 1985—
  • No one can believe that 90 per cent. of women who make a complaint to the police alleging rape are making it up.
  • The new clauses seek to address those issues. They represent small but important steps in a long process of rebuilding the confidence of victims of rape and sexual assault in the criminal justice system

Everyone would agree with his first point, namely, that we must be to ensure that the innocent go free and that the guilty are convicted – but there is a corollary to that, namely, that the innocent must go free and incur no penalty, otherwise it is futile to find them innocent ? They might as well have been found guilty if the collateral damage is that they are subsequently penalised.

Clever though he might have been, he was no match for his devious civil servant team who fed him the bogus 9% figure. Everyone who has ever spoken in a parliamentary debate for the past 20 years has been fed this wholly untrue figure for rape convictions (see this site and Stern Report).

The upshot of this deceit is that arguments deployed against anonymity for defendants have no merit and are compromised to the point of being castrated.

His next remark is interesting. He links the 9% attrition rate – which everyone in those days called the conviction rate because the Home Office said it was so – with 90% of women making up rape claims and culprits walking away scot free.

He can’t have been that foolish to believe that only 1 in 10 rapes lead to a prosecution – can he ? It could be argued that he would have known better than most because of his intimate knowledge of the law, other barristers and experience in presenting cases. Yet the keeper of the key was the Home Office, only they had access to numbers nationally.

At the back of is mind must have lurked the dark thought that 90% of reported rapes resulted in no conviction. He would have rationalized that no one can believe that 90% of women would go to the police station and make up a rape.

If that was the case and Michael Howard not Theresa May was now at the Home Office, then “have I got news for him.”

Stand-by to be disabused. The figure for of women making reports of rape is not 90% but 80%, according to research undertaken in 2001/ 02 at two specialist rape referral centres. [1]

The figures are not plucked out of thw air but are based on data from establishment feminists, eg Liz Kelly, Josephine  Lovett and Linda Regan – all from the ‘Child and Woman Abuse Studies Unit’ at the London Metropolitan University (see pie chart, left).

(NB. The ‘Feb 2006’ citation in the pie chart, left, may be an error (BBC webpage).  Home Office Research Study 293 was pub’d in Feb 2005 – see Kelly, Lovett, & Regan  A gap or a chasm? Attrition in reported rape cases (PDF) ).

Data derived from specialist rape support service mixed with three comparison areas where no specialist provision existed will always prove problematical in statistical terms.

The base sample in “A gap or a chasm ? Attrition in reported rape cases” was 3,527 cases, which should have provided a broadly reliable basis for meaningful conclusions. In keeping with similar studies sub-samples were then interrorgated more closely(in-depth). Care has to be exercised when looking at the resulting percentages and claims as they may not reflect the whole sample, ie 3,527, but merely the in-depth sub-set of, say, 228 victims.

Had the data been taken from purely rape referral centres then we could say that the data was the best, the least tainted and the most reliable. We could say, with a degree of certainty, that the data was the best available, uncompromised by poor processes or recording errors at local police stations.

If the data had been derived from specialist rape support centres then we could say that the best possible figure for rapes that had no substance or were false was 80%. The implication being that rapes reported at police stations would have a higher false / bogus ‘yield’ than 80%, say 85% or 87%.

Mixing the data not only makes for sloppy science and bad arithmetic but obscures what should be crystal clear. It forces us to make generalisations. We can say that 80% but perhaps more of rape claims are dropped by the police because they are obvious fabrications or are so marginal as to whether sex was consensual or not, that a prosecution would not be tenable.

To underscore this position the data reveals that 21% of cases had insufficient evidence to bring a prosecution and in 17% of cases the victim withdrew her charge (this can be for all sorts of motives). In 12% of cases false allegation was admitted and there was no evidence of assault in 5% of cases. In 13% of instances the offender was not identified which implies a fictitious claim by a fantasist as ‘stranger’ rapes are much rarer then that. The total these categories generate is 68% (68% of what we are not told in the BBC article, ‘Call for new rape inquiry squads’).

Only 17% of rape victims in the 2001 – 02 data declined to complete initial process and once again reasons and motives are left unresolved. There was no prospect of a conviction in 2% of cases; not in public interest in 1% and ‘other/ unknown’ made up 12% of cases (100% of the 80%).

Of the remainder 6% the CPS decided not to proceed with and 14% went trial with 8% being convicted. This 8% is the attrition rate and gives a true conviction rate of 57% (8 / 14 x 100).

This then vindicates a decade long campaign culminating in the Stern Report etc, which sought to educate the Home Office that they were wrong and that the true conviction rate for rape has always been well over 50%.

The basis upon legislation was introduced and changed 20 years ago is, by modern standards, frightening.

Later in the parliamentary debate the work of Professor Sue Lees was mentioned. She had conducted a ‘landmark study’ ( Col 358: 12 Jun 1996) , monitoring ‘all contested rape trials’ at the Old Bailey over a four-month period in summer 1993.

Left: Prof Sue Lees (1941 – 2002)

From this small sample she found that judges allowed questions about victims’ past sexual histories in seven out of 10 rape trials. She recorded how judges continued to give defence barristers ‘free rein’ to ask the most intrusive and needlessly distressing questions of women who have been the victims of rape (something the Heilbron recommendations and the 1988 legislation should have killed-off).

The questions may look a little twee by today’s standards of full frontal nudity etc, but in her book “Carnal Knowledge: Rape on Trial“, Professor Lees gives examples of questions that, according to the spirit of the Sexual Offences Act 1976, should not have been allowed. Complainant were asked:

  • “Before this incident on 5 February, when was the last time that you had sexual intercourse with anyone?”
  • “Have you had sex with a man other than the defendant?”
  • What kind of material is your underwear made of?”
  • “Would you agree that it’s a dressy dress?”

These, Sue Lees maintained, were designed to embarrass the complainant, make her blush and to construct a “smokescreen of immorality” through insinuation and innuendo.

“In the trial transcripts I examined I found that the perfectly normal behaviour of young women is presented as evidence that they provoked the man’s attack or asked for it” were Sue Lees’ concluding remarks.

In a further study on Court of Appeal rulings about sexual history evidence in England & Wales, Professor Jennifer Temkin waded into the argument:

  • “The willingness of the Court of Appeal to see a wide range of evidence as relevant to ‘consent’ means that trial judges who refuse to allow in sexual history evidence do so at some considerable risk of a quashed conviction on appeal. It will be an inept defence counsel who is unable by some means or other successfully to apply under Section 2”. http://www.publications.parliament.uk/pa/cm199596/cmhansrd/vo960612/debtext/60612-33.htm

The only escape from the clutches of having a guilty verdict overturned because a defendent was not allowed to defend himself properly, was to alter the rules and laws appertainingi to how a defence team may operate. This was duly done.

END

Ref: Sue Lees is described as a leading feminist academic, writer and campaigner and was Professor of Women’s Studies unit (of which she was a co-founder),  at the University of North London – now London Metropolitan University ( see http://www.bunker8.pwp.blueyonder.co.uk/Sue/Sue1.htm).


[1] Pie Chart see ‘Call for new rape inquiry squads’, 9 July 2008, http://news.bbc.co.uk/1/hi/uk/7496013.stm

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