Chris Grayling has urged the greater use of police cautions for rapists.

The justice secretary said that in some cases, a caution might be the only way of getting the offence on an offender’s criminal record.

His comments come in the context of widely reported and often repeated figures on convictions for the offence, which are very low.

But would it work? FactCheck finds out.

What did the justice secretary say?

In the House of Commons on Tuesday, Karl Turner, Labour MP for Kingston upon Hull East, said that he had spoken to the Bill Waddington, chairman of the Criminal Law Solicitors’ Association.

He was told there had been a sharp increase in cautions for serious offences, including sexual offences and violent assault.

“That is soft on criminals and harsh on victims,” he said.

In response, Mr Grayling said: “I take very seriously the issue of cautions being administered for serious offences.”

He said that he is due to meet senior police officers in the next few days to talk about the use of cautions for serious offences.

But he added: “If we take, for example, a caution for rape, something we would all view as being completely unacceptable, but in some cases where the victim is absolutely unwilling to give evidence, it may be the only way of getting something on the record about the offender.”

From what he’s saying, it looks as though he’s suggesting that issuing a caution to serious sexual offenders would be better than letting them off altogether.

How bad are figures for justice for victims of sexual violence?

On average, over the last three years, there were 15,670 rapes recorded by police per year. Of those, 1,070 resulted in convictions. That’s a rate of 6.8 per cent, according to Ministry of Justice figures on sexual offending.

Looking at Europe as whole, the number of convictions for rape is about average: the European Sourcebook of Crime and Criminal Justice suggested that in 2007 (the latest figures available) the rate of conviction for the offence is 1.6 per 100,000, and the median is 1.8.

But the Crime Survey of England and Wales measures experiences of crime for 16-60-year-olds, regardless of whether they reported it to the police or not.

They suggest that over the last three years, on average, around 473,000 adults said they had been victims of sexual offences in the previous 12 months. Of them, 404,000 were female and 72,000 male.

Comparing the two sets of figures, it’s also clear that although relatively few people report sexual assault to the police, those that do are more likely to report serious sexual assault (involving penetration, or attempted rape).

The Crime Survey said that on average between men and women, 19 per cent of those questioned about sexual assault said they were victims of serious sexual assault (it was 21 per cent for women, and 17 per cent for men).

But in 2011/12, “most serious sexual offences” accounted for 71 per cent of sexual offences recorded by police.

Of the serious sexual offences that don’t result in a conviction, how many are because the victim refuses to give evidence?

Between 2008/9 and 2010/11, the Home Office collected information from police forces on the number of people who retracted allegations of rape. Of 21 forces which returned information, around 45 per cent were dropped were due to a retraction of the initial allegation.

The percentage of sexual offences which are ‘no crimed’ by police – ie. they drop out of the justice system as the police decide that no crime took place – is much higher for rape than for other types of crimes.

Overall, 3.4 per cent of crimes were “no crimed” in 2011/12, compared with 10.8 per cent for rape.

Can the police issue a caution for serious sexual offences?

They can, but it’s not common.

A caution is when an offence is recorded on the police national computer but not prosecuted. It’s the final stage of the justice process (you don’t go to court) and doesn’t lead to a sentence, but it can only be issued if the suspect has admitted guilt.

Police are supposed to issue cautions for serious offences after taking guidance from the Crown Prosecution Service (CPS), guidelines from the Association of Chief Police Officers say.

The CPS takes into account the public interest when deciding on prosecutions, so if it’s felt that if the public interest isn’t served by prosecuting, they may advise that a caution is better.

That could be, for example, in the case of a 13-year-old who rapes someone younger, the offender has no defence in law. The CPS, or indeed police, may decide justice is better served through issuing a caution, rather than prosecution.

In 2011, 1,500 offenders were given a caution for committing a sexual offence, but only 19 were for rape. Of those, 16 were for offenders under the age of 18.

Would Mr Grayling’s plans work?

Not according to the Ministry of Justice, no.

Mr Grayling’s theory is that in cases where a victim refuses to give evidence, a caution can be issued instead. He said: “In some cases where the victim is absolutely unwilling to give evidence, it may be the only way of getting something on the record about the offender.”

But it can’t, and the logic of that argument is that a caution is a speedier way to deliver justice, which is not what its intended to be.

For a caution to be issued, there must be sufficient evidence to charge the offender. If there isn’t enough evidence to prosecute, then there isn’t enough evidence to caution.

This is what the report, An Overview of Sexual Offending in England and Wales, said: “The Home Office also collected data on the number of offences where the victim declined to complete the initial process or chose to withdraw support for the investigation or prosecution.

“If this happens but the victim maintains that the crime took place, then unless there is additional verifiable information available which determines that no notifiable crime took place, the rape offence remains recorded as such.

“However, in these cases it is likely that the police will be unable to take any further action or be able to detect the crime.  ”

Mr Grayling may consider that an offender is more likely to admit guilt if they know they’re not going to be sentenced for it.

But again, the starting point of the justice system is that if an offence has been committed, and there is enough evidence to prosecute then that should be pursued, and an admission of guilt should be pursued through the justice system.

When we asked the CPS whether cautions should be issued for serious sexual offences, a spokesman said: “We would only give police approval to give a caution for sexual offences in very exceptional circumstances.”

So we asked the Ministry of Justice for clarification on what Mr Grayling said.

In a statement, he said: “All sexual offences are abhorrent. Very tough sentences are available to the courts for those who commit the most serious offences including a new mandatory life sentence which we have introduced for anyone convicted of a second very serious sexual or violent crime.

“We are already looking into how police cautions are being used. We shouldn’t remove the right for police officers to exercise discretion but the public are right to expect that people who commit serious crimes will be brought before a court.”

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