CPS handling of rape cases deemed lawful despite falling numbers of prosecutions

Kate Ellis, solicitor for End Violence Against Women coalition
PA

A legal challenge to CPS handling of rape prosecutions when the numbers of cases going to court plunged to record low levels has been dismissed by judges.

Campaigners brought a judicial review claim over the way charges were brought from 2016 to 2018, arguing there had been a change of policy to try to secure a higher conviction rate.

They tied the alleged change in approach to a 45 per cent drop in rape cases being charged, arguing CPS lawyers in England and Wales may have been left confused on the threshold for bringing a prosecution.

But Court of Appeal judges today dismissed a judicial review bid, finding the Director of Public Prosecutions had only acted to clarify the approach to charging decisions.

The Centre for Women’s Justice (CWJ) and End Violence Against Women (EVAW) argued prosecutors may have been pushed away from applying a “merits-based approach” (MBA) to rape allegations, fearful of bringing prosecutions that ultimately failed and reduced their conviction rates.

But the Lord Chief Justice Lord Burnett of Maldon, sitting with Lord Justice Holroyde and Lady Justice Elisabeth Laing, dismissed the argument and analysis, saying then-DPP Alison Saunders had acted to clarify the decision-making process.

“The illegality is said to be that prosecutors would fail to apply the full Code test”, they said in today’s ruling. This ground fails on the facts.

“It is linked to the assertion that the specialist RASSO prosecutors were left in a state of confusion. We reject the submission that the decision created any risk of systemic illegality.

“Properly analysed, the decision was a decision to remove unhelpful references to the MBA and to emphasise the primacy of the full Code test.

“We are unable to accept that it gave rise to any risk that prosecutors would wrongly apply the bookmaker’s approach to decision making, or otherwise fail to apply the full Code test.”

The judges said Ms Saunders had taken decisions “in an area with which she was very experienced and knowledgeable”, and was “determined to secure better outcomes for complainants, in accordance with the law and her duties”.

They disagreed with the argument that changes to guidance for prosecutors had “sowed confusion”.

The judges also dismissed claims on transparency, equality, and a suggestion that alterations in the CPS guidance should have been consulted on before being implemented.

In its defence to the legal claim the CPS insisted there had not been a fundamental change in its approach to rape cases, adding that “independent inspectors have found no evidence of a risk averse approach and have reported a clear improvement in the quality of our legal decision making in rape cases”.

Reacting to today’s ruling, the currently Director of Public Prosecutions Max Hill QC said: “The devastating impact and the scale of violence against women and girls is dominating national debate. Women have bravely shared their experiences to demand change. All of us must look hard at what more we can do to can create a society where everyone feels safe, and to remove any barriers to justice.

“Rape in particular is an abhorrent crime and one of the most complex to prosecute. The impact on victims is shattering and lasting, and it has long been recognised that all parts of the criminal justice system must give real and ongoing focus to the issue. Every victim must feel able to come forward with confidence that their complaint will be fully investigated and, where the evidence supports, charged and prosecuted.

“The Court of Appeal has today handed down its judgment following detailed consideration of how the CPS prosecutes rape. They have dismissed the case, confirming that the CPS was neither irrational nor unlawful in its approach to updating guidance for prosecutors, and that there was no change of approach in the way the CPS prosecutes rape cases.

“For more than a decade, the CPS has prioritised rape and sexual offences. The challenges in prosecuting these crimes are well known, and it is essential that our guidance and training is subject to ongoing review so that our prosecutors are supported in their duty to make sure that the right person is prosecuted for the right offence.

“Every rape case that comes to the CPS is considered by a highly trained lawyer in one of our specialist Rape and Serious Sexual Offences (RASSO) teams, who has access to the latest information needed to prosecute these offences.

“The landscape is continually evolving, and our response must adapt to reflect external factors such as ever-growing volumes of digital evidence. We must respond to changes in the law as well as changing behaviours, the growing understanding of the impact of trauma, evolving myths and stereotypes and our increasingly digital society.

“However, the legal test that guides every charging decision has not changed. The principles of the merits-based approach are enshrined in the Code for Crown Prosecutors, which guides every charging decision. Independent inspectors have found no evidence of a risk-averse approach and have reported a clear improvement in the quality of our legal decision-making in rape cases.”

The plunging numbers of rape and serious sexual offences cases being prosecuted around the country are currently the subject of a review by the Ministry of Justice.

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