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DS v HMA, [2007] UKPC D1

DS v HMA, [2007] UKPC D1


Citation: DS v HMA, [2007] UKPC D1

Link to case on WorldLII.

Rule of thumb: Are sentencing/punishment discounts completely at the discretion of the Judge? No, where early guilty pleas, genuine remorse, & remedial measures have been taken then punishments for criminal offences must be discounted & leniency shown as a matter of law.

Judgment:

Budgets and conviction rates are important part of the prosecution process that Judges and prosecutors have an awareness of, ‘5. The debate about the questioning of complainers in sexual offence cases which prompted the introduction of those provisions has intensified since they were originally enacted in 1985. Its progress in England and Wales was reviewed extensively in R v A (No 2) [2002] 1 AC 45. It is unnecessary to repeat the details here. But in para 53 reference was made to Home Office Statistics published in June 1998 which indicated that, while in 1985 35% of rapes reported to the police in England and Wales occurred within an intimate relationship and 30% were by strangers, by 1997 these percentages had altered to 43% and 12% respectively. On the other hand the conviction rate for rape in England and Wales had decreased markedly over the same period, as 24% of rapes complaints to the police in 1985 resulted in a conviction but by 1996 the number of rape complaints to the police had trebled but the conviction rate had fallen to 9%. It was widely believed that the balance between the rights of the defendant and the complainant were in need of adjustment if women are to be given the protection to which they are entitled against conduct which the law prescribed as criminal conduct. Section 41 of the Youth Justice and Criminal Evidence Act 1999 was designed to achieve that adjustment in England and Wales. In R v A (No 2) the House of Lords held that Parliament had pursued a legitimate objective in enacting that section. But it had to be read down in the way indicated by Lord Steyn in para 46 to render it compatible with the accused's right to a fair trial under article 6 of the Convention. 6. The social changes referred to in the Home Office Report and the decline in the conviction rate in rape and other sexual cases have followed a similar pattern in Scotland. Recently published figures indicate that the conviction rate for rape in 2005-2006 was 3.9 per cent. In the previous year it was 5%. On 9 November 2000 the Scottish Executive issued a Consultation Document, Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials, in which views were sought as to how best to address this problem. Among the issues raised in the Consultation Paper were the approach that ought to be taken to the admissibility of evidence about the complainer's sexual history and character, including character evidence that was not explicitly sexual and whether, if the accused had previously been convicted of a sexual offence, this should be disclosed. A Report on the consultation was issued on 21 June 2001. It indicated that a majority of consultees supported its proposals, although a significant number of consultees did not. On 28 June 2001 the Sexual Offences (Procedure and Evidence) (Scotland) Bill was introduced in the Scottish Parliament. It was accompanied by a Policy Memorandum, in which it was said that the Bill had two major policy objectives. These were to prevent the accused in rape and other sexual offence cases from personally cross-examining the complainer by requiring him or her to be legally represented throughout his or her trial, and to strengthen the existing provisions restricting the extent to which evidence could be led regarding the sexual history and character of the complainer. 7. No mention was made in the Policy Memorandum of the proposal that the accused's previous convictions should be disclosed if the court were to allow questioning or the leading of evidence of the kind that, except with its permission, was to be prohibited. This proposal did not emerge as part of the legislation until after the Justice 2 Committee had considered the Bill and issued its Stage 1 Report (SP Paper 446 Session 1 (2001)) on 14 November 2001. It was introduced as an Executive amendment in December 2001. On 11 December 2001 the Deputy Minister for Justice, Richard Simpson, wrote to Pauline McNeill, the Convener of the Justice 2 Committee, explaining the policy behind the amendment and why it was being lodged at that stage ("the December 2001 letter"). Thereafter the Justice 2 Committee considered the Bill at Stage 2 between 12 to 18 December 2001 and at Stage 3 on 27 February 2002 when oral evidence was taken on the issues raised by the amendment. The Bill was passed on 6 March 2002 and received the Royal Assent on 11 April 2002....’, Lord Hope.

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Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.