Evidence in sexual offences prosecutions
The Government has asked the Law Commission to examine the trial process and to consider the law, guidance and practice relating to the use of evidence in prosecutions of sexual offences.
Problem (Back to top)
The Government’s End to End Rape Review found that the prevalence of rape and sexual violence has remained steady in the last five years but there has been a sharp decrease in the number of prosecutions since 2016/2017.
There are many complex reasons for the decline in cases reaching court. Our focus is on how evidence is used in trials involving sexual offences. Academic research shows that some individuals hold misconceptions about sexual harm (‘rape myths’) in relation to the credibility, behaviour and experience of complainants in cases involving a sexual offence. It is unclear how extensive such misconceptions might be amongst the public and how much impact they can have on the juror’s task of evaluating the evidence.
Some argue that jurors need more assistance with assessing evidence in relation to sensitive and challenging issues that may fall outside their own experience and understanding. We have considered whether more needs to be done in our criminal courts to tackle misconceptions.
Project (Back to top)
We commenced work on the project on 17 December 2021 and published a background paper in February 2022. We then conducted research and met with stakeholders to develop provisional proposals for reform. We published a consultation paper containing 119 consultation questions in May 2023, accompanied by a summary consultation paper, which was available in English and Welsh, and an easy read version. We held a four-month public consultation ending in September 2023. We received a total of 133 consultation responses, and conducted around 60 consultation events and meetings.
After analysing consultation responses and feedback we received at consultation events and meetings, we published a final report with recommendations to the Government for reform on 22 July 2025.
Our recommendations for reform
In our final report, we conclude that 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. We make 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.
Our recommendations are directed at minimising the risk of unnecessary harm to complainants, and better protecting their privacy rights. Our 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. Our 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.
In the first part of our report, we consider restrictions on certain types of evidence that carry the most risk of either introducing rape myths or infringing complainants’ rights to privacy and dignity. We recommend 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.
For 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.
In the second part of our report, we consider reform to features of the trial process. 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.
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.
Our report recommends mandatory training for all legal practitioners on myths and misconceptions, to reduce the risk of advocates introducing them into the trial process.
We also recommend improvements and additions to the directions which judges give to jurors to educate them about myths and misconceptions. In addition, we conclude that parties should be able to introduce expert evidence of behavioural responses to sexual violence in particularly complex trials.
We consider 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, we recommend the retention of juries, concluding that there is not a sufficient evidence base to support removing juries in serious sexual offences prosecutions.
To effectively operationalise these recommendations, we recommend 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.
Next steps (Back to top)
We published our report on 22 July 2025. It will be for the Government to decide if it wishes to implement our recommendations.
Engagement with committees
As part of this project, we consider how to improve sexual offence complainants’ experiences of trial process while ensuring that defendants receive a fair trial. When the Home Affairs Committee launched their inquiry into the investigation and prosecution of rape with a view to improving complainants’ experiences, we provided oral evidence explaining the remit of our project and giving some preliminary views. This evidence was cited in the Committee’s report.
On 26 June 2023, we provided oral evidence to the Justice Committee as part of their inquiry into evidence in sexual offence cases. Professor Penney Lewis spoke about our recently published Consultation Paper and its provisional proposals, particularly discussing personal records, independent legal advice for complainants and special measures.
Documents (Back to top)
Reports
Background information
Consultation papers
Consultation paper and summary
Alternative formats for the consultation paper
Additional information for consultation paper
Route through consultation paper – ISVAs, intermediaries and witness supporters
Route through consultation paper – judiciary
Route through consultation paper – police and law enforcement
Archbold Review: features 1 and 2
Contact (Back to top)
Contact us if you have any queries about this project.