New measures to improve sexual offences cases
The Law Commission has published its recommendations to the Government for reform of sexual offences cases.
The full report and an overview are available here.
- Major recommendations aim to better protect complainants while maintaining fair trials for defendants.
- Recommendations include reform of rules of evidence to address myths and misconceptions about sexual violence.
- They also include improvements to the legal process by introducing legal advice and representation for complainants, mandatory training for all lawyers and specialist sexual offences courts.
As part of its End-to-End Rape Review, the Government asked the Law Commission to examine the law, guidance, practice and procedure in sexual offences cases. While progress has been made, evidence shows that the criminal justice process for rape and serious sexual offences is still flawed and more can be done to ensure that sexual offences are tried justly, without traumatising complainants. In this landmark report, based on its 2023 consultation, the Law Commission makes recommendations aimed at improving the understanding of consent and sexual harm; improving the treatment of complainants; and ensuring that defendants receive a fair trial.
One issue particularly detrimental to the fair and effective trial of sexual offences is the risk that rape myths will permeate the criminal process, influencing jurors’ deliberations. Rape myths are genuine and sincere beliefs about sexual violence that are factually incorrect and derived from stereotypes. The report addresses that risk.
Its recommendations are directed at minimising the risk of unnecessary harm to complainants, and better protecting their privacy rights. The recommendations protect the defendant’s right to a fair trial by ensuring that the defence can present evidence relevant to their case, without relying on myths and misconceptions or causing unnecessary trauma to the complainant. The report recommends reform to the rules of evidence and procedure to improve the treatment of complainants, to ensure that the jury can evaluate the issues in the case uninfluenced by myths and misconceptions about sexual violence, and to ensure the defendant’s right to a fair trial can be effectively exercised in every case.
The Law Commission considers restrictions on certain types of evidence that carry the most risk of either introducing rape myths or infringing complainants’ rights to privacy and dignity. It recommends enhanced protection and scrutiny of requests to access complainants’ personal records including their therapy records; and new rules governing the admissibility of evidence of their sexual behaviour and of them having made a claim for criminal injuries compensation.
Complainants would gain the right to independent legal advice and representation regarding requests to access their personal records and for applications to introduce evidence of their sexual behaviour. This will ensure these applications – which engage complainants’ privacy interests – are appropriately scrutinised.
The report recommends mandatory training for all legal practitioners on myths and misconceptions, to reduce the risk of advocates introducing them into the trial process.
The Law Commission also recommends improvements and additions to the directions which judges give to jurors to educate them about myths and misconceptions. In addition, it concludes that parties should be able to introduce expert evidence of behavioural responses to sexual violence in particularly complex trials.
To effectively operationalise these recommendations, the report recommends introducing specialist sexual offences courts within existing court buildings, with improved access to measures to assist complainants with giving evidence, additional training for court staff on trauma-informed practice, and prioritised case listing.
Other key recommendations
When judges are deciding the admissibility of evidence that a complainant has made a previous allegation of sexual offending, the sexual behaviour evidence provisions should apply where the evidence falls within the definition of “sexual behaviour”, otherwise the bad character provisions should still apply. The court must have regard, when considering admissibility under the bad character provisions, to the risks of the evidence introducing myths and misconceptions.
At present, the legal framework requires complainants to explain their request for measures to assist them with giving evidence. Under the recommendations, complainants would have an entitlement to standard measures while they give their evidence, and would not need to justify their request. Standard measures include giving evidence behind a screen, using a video link or pre-recording their evidence. This entitlement would also apply to the complainant requesting to exclude the public while they give their evidence. Due to the importance of transparency and open justice, the report improves the current law to ensure that when the complainant gives evidence without the public being present, representatives of news gathering or reporting organisations would be able to remain in order to report on the trial.
The Law Commission considers calls to remove juries entirely from serious sexual offences trials, assessing concerns raised with the current position against the project’s objectives of improving the treatment of complainants, countering rape myths, and safeguarding fair trial rights. Ultimately, it recommends the retention of juries, concluding that there is not a sufficient evidence base to support removing juries in serious sexual offences prosecutions.
Despite improvements, too many victims still do not report sexual offences – or, if they do, too often withdraw from a criminal justice process that can feel invasive, hostile and retraumatising. This is largely due to an outdated courtroom culture where complainants’ credibility is subjected to heightened scrutiny, their sexual history is used to undermine them, and their most private records are open to disclosure. That culture must change, and I strongly welcome many of the Law Commission’s recommendations which offer a clear, practical blueprint for reform.
I have long called for complainants to have access to free, independent legal advice when decisions are made about their personal records or sexual history. I was pleased the Government committed to introducing such advocates from 2025 and this report sets out exactly how it must be delivered: through qualified, specialist lawyers, with support available in person, online and by phone. Alongside this, the report rightly makes clear that proper funding will also be essential to ensure this support is available to all complainants.
I am especially supportive of proposals to strengthen measures to assist with giving evidence. These are not a ‘nice to have’ – for many victims, they are the difference between giving evidence and walking away from justice altogether. Yet too often they are inconsistently applied, still subject to judicial discretion, or not offered at all. Guaranteeing the right to give evidence away from the defendant – including the use of screens, pre-recorded video or remote links – is a simple but powerful change that will help more victims stay engaged.
The Law Commission is also right to challenge the persistent influence of rape myths and stereotypes in our courts. Mandatory training for legal professionals, better jury directions, and – in some cases – expert evidence on victims’ responses to trauma are all essential steps in correcting dangerous misconceptions.
This report includes several important recommendations that deserve careful attention as wider reforms to the criminal courts progress. The proposal for specialist sexual offences courts – including priority listing for rape cases – is especially timely, as Sir Brian Leveson prepares to conclude his review. These measures must be seriously considered by his team and the Ministry of Justice.
We have had Operation Soteria, which has transformed how rape and serious sexual offences are investigated and prosecuted. Now comes the final piece in the puzzle: addressing the culture of the courtroom itself – a culture that can have a chilling effect on victims’ willingness to come forward or remain engaged in the process. I urge the Government to act swiftly and comprehensively on these recommendations.
These recommendations follow extensive consultation with stakeholders across the justice system, including defence and victims’ groups, representatives of the media, legal professionals, law enforcement, judges, and academics.
It will now be for the Government to consider the recommendations.
Terminology
To reflect the legal process, including the fundamental presumption that anyone charged with an offence is innocent until proven guilty, we use the terms “defendant” and “complainant” within the context of the trial process. Once a defendant has been convicted, we use the terms “offender” and “victim”.
When we speak generally about those who have experienced sexual violence, we use the term “victims”.
The full report and an overview are available here.