Rape complainants warned pre-recording evidence could backfire

Rape complainants should be told pre-recording evidence could harm their chances of securing a conviction at trial, researchers say.

"Special measures" allow them to be interviewed and cross-examined before the trial and away from the defendant.

But a University College London study, the first of its kind, found 20% fewer rape convictions in such cases.

Special measures, under Section 28 of the Youth Justice and Criminal Evidence Act 1999, were introduced in 2016.

In 2021, they were expanded to cover adult rape complainants, in a flagship government policy aimed at increasing the number of cases coming to trial.

The study looked at conviction rates in comparable trials, with both adult and child complainants, from 2016 onwards.

And when all offences were considered, it found 10% fewer convictions in trials employing special measures. For rape, convictions were 20% lower.

Using screens and barristers changing from gowns and wigs into suits are other ways to accommodate vulnerable and intimidated complainants.

Prof Cheryl Thomas KC, at UCL Faculty of Laws, said Section 28 "may need reform".

"It would be prudent for police and the Crown Prosecution Service to routinely advise witnesses of lower conviction rates," she said, because of "such a strong and consistent correlation between the use of Section 28 evidence and lower jury conviction rates".

In 2022, Rain, not her real name, was kidnapped off the streets of Plymouth on a night out and raped.

And she jumped at the chance to pre-record her evidence and be cross-examined by video link, as she felt so shocked by the assault.

"It was so horrific and damaging," Rain told BBC News.

"It stripped everything away.

"I couldn't leave the house alone for nearly a year.

"Doing the cross-examination before meant I could take breaks and recover myself.

"It felt like a security blanket.

"I also got a better understanding of what had happened that night, as I had memory loss."

Rain's attacker was jailed for 18 years on the basis of her interviews, corroborating CCTV and DNA evidence.

But in many cases, the study suggests, pre-recording evidence leads to an "inequality of arms" between the defendant and complainant.

The authors refer to psychological research showing in-person interaction can create higher levels of empathy than interactions on screen.

Other reasons could be special-measures cases are inherently weaker or recording equipment is poor.

John Riley, from the Criminal Bar Association, who both prosecutes and defends rape cases, said: "The complainant's police interview serves as an investigative tool and their evidence in chief.

"The quality of this interview can be very varied.

"Sometimes, the complainant is some distance from cameras.

"The defendant is always in person before the jury.

"The absence of a witness in person in both parts of the complainant's evidence can have a negative impact on the jury."

Complainants who had already opted for pre-recorded cross-examination could in theory change their minds but the defence could object.

"They may argue the complainant is unfairly getting two bites of the cherry, being cross-examined twice with a better knowledge of the line of questioning by that point," Mr Riley said.

"Special measures cannot be a panacea for all the deficiencies in the system, namely the backlog.

"There needs to be a review."

The government said it would consider the study but "pre-recorded evidence supports those extremely vulnerable victims who may otherwise feel unable to have their voices heard to see justice done".