Lord Chancellor and Secretary of State for Justice Chris Grayling demonstrates yet further that he has no understanding of the justice system or the criminal law.
On Tuesday in Parliament, he said:
“For example, we would all view a caution for rape as completely unacceptable, but in some cases where the victim is absolutely unwilling to give evidence it may be the only way to get something on the record about an offender. We must be careful about this issue and try to get it right.”
Now aside from the obvious confused message that whilst cautions are unacceptable, the MoJ are potentially in favour of them in such situations, Grayling’s proposition is deeply concerning.
He is advocating cautions in cases where a rape complaint has been made, but where the complainant does not want to give evidence. Let’s look at the benefits.
First off, the defendant ‘has his card marked’. The obvious advantage of this is that there is a record that a) there was a complaint made against him and b) he admitted the allegation. Therefore, if in the future there is another complaint made, his details are known to the police. There are obvious advantages to that.
Second, the defendant will be subject to the notification requirements (2 years if aged 18+, 12 months if under 18). There are obvious advantages to this also –a defendant who accepts the allegation is then subject to notification (which offers a degree of ‘protection’ to the public) where he would otherwise not be so subject.
Third, from a statistics perspective, the caution, although not qualifying as a conviction, would probably be included in crime detection rates.
Fourthly, again whilst not qualifying as a conviction, the caution could be used in subsequent criminal proceedings.
So what are the drawbacks? Well first and foremost is that there is a serious allegation which is not being tested. The police presumably dangle the caution in front of the defendant and with a bit of persuasion (‘you’re looking at 5 years +’, ‘a Crown Court trial is very stressful’, ‘your work, family and friends will hear all about it’) accepting a caution appears more appealing.
That causes (or should cause) you concern. These are serious allegations which are going untested. The defendant has the right to have the case against him proven (if he contests it) and should not be coerced into pleading guilty or accepting a caution because the risk of going to trial on balance is not worth it.
Secondly, as Grayling seems to accept, it is unacceptable to offer a caution for an allegation of rape. One may say that for a child committing rape against a child, it may be appropriate, however, Grayling appears to be talking more broadly and it appears to me that rape is not an offence for which a caution should be offered. The offence is a serious one and as suggested in the press yesterday, sends the wrong message out to victims and the wider public.
Last year, there were 19 offenders given cautions for rape. The MoJ said that most of these were under 18s. Whilst 19 is a small number in comparison to the number of convictions for rape each year, those are 19 cases in which the evidence was not tested and we are unclear on the basis on which the conviction was offered and accepted.
The police are not supposed to caution until there has been an admission obtained. They are not supposed to offer the inducement of a caution to gain an admission however. Also, someone cannot be cautioned unless there is sufficient evidence to give rise to a realistic prospect of conviction and if it is clear that the complainant won’t co-operate, it is hard to see that the test would be satisfied. However, the police sometimes bend the rules on this.
So what to make of Grayling? At the very least, I think he needs to think before he speaks. But perhaps that is the problem.