by Nogah Ofer & Harriet Wistrich
This week another perpetrator of child rape and sexual abuse was sentenced to 16 years’ imprisonment after pleading guilty to 12 charges. He would still be free if it hadn’t been for CWJ’s intervention. One important area of the work of our small legal charity is assisting survivors to challenge decisions by the police or Crown Prosecution Service (CPS) not to prosecute men they have reported for rape, child sex abuse and other forms of male violence. We do this by making legal representations in support of the survivor’s Victim’s Right of Review (VRR), challenging a negative charging decision.
Since 2019, when CWJ first started providing legal assistance in relation to the VRR scheme, we have to date seen seven men convicted and imprisoned for serious sexual offences who would otherwise be free. Every case that has gone through a VRR and reached trial has led to a conviction. Perpetrators who would otherwise be free have received a combined 58.5 years’ imprisonment plus one life sentence.
There are many more cases awaiting outcomes as they navigate the tortuously slow criminal justice process. Dozens of our other successful VRR cases are being re-investigated or are with the CPS awaiting charging decisions. In three years (2019-2021), after legal submissions by our in-house lawyers and lawyers on our panel, 31 cases were re-opened for further investigation and 21 cases were referred by police to the CPS for charging.
Perpetrators who would otherwise be free have received a combined 58.5 years’ imprisonment plus one life sentence
Cautious Charging Decisions
It is significant that so many cases the CPS did not think were worth prosecuting have ended with successful prosecutions, and around half of the men pleaded guilty once they were finally charged. This reflects a cautious approach at CPS, which CWJ and many other women’s sector organisations have been highlighting for years.
In 2020 we published The Decriminalisation of Rape report, with Rape Crisis, Imkaan and the End Violence Against Women Coalition, following a collapse in rape charging rates. The following year the Government published its End-to-End Rape Review, which concluded the system was fundamentally failing victims and pledged to get back to 2016 levels of charging in rape cases by the next general election. Eighteen months on, charging rates have crept up marginally but are still a very long way off 2016 rates.
The Wait for Outcomes
The progress of these cases is painfully slow and survivors have to endure years of waiting, alongside the trauma of the crimes themselves, and with the spectre of giving evidence about deeply personal events under aggressive cross-examination hanging over them. Two of the cases involved so-called ‘rough sex’ defences where the perpetrator had claimed that the woman consented to being violently assaulted. One involved a schoolgirl raped by a boy at her school. Three involved childhood rape and sexual abuse by close family members that the survivors had finally found the courage to disclose after decades.
Many rape investigations take years: one or two years is not uncommon just to reach an initial decision to close the case, four years in some cases, and the longest case we know of has taken seven years to get to a trial, which was then adjourned. In addition to this, the legal battle with the police and CPS to reverse incorrect decisions can add several further years to the scoresheet, and untold frustration and anxiety. In several cases we have assisted women to go through the police VRR process, and when that is unsuccessful, we have had to threaten to take police to court and draft detailed legal submissions on judicial review. Only then are the cases re-opened with a promise to send them to the CPS. Even then it can take years for that to happen.
In one such case 22-page submissions by a QC on our panel were sent in August 2020 in support of a VRR, which was rejected. We then drafted a judicial review pre-action letter in January 2021, as a result of which the police promised to refer the case to the CPS, but in autumn 2022 the survivor is still going through further police interviews and the case has not yet been sent.
In another case the survivor made an immediate report of a violent rape by her boyfriend in 2000, was medically examined and had detailed medical evidence of her injuries. The police inexplicably closed the case. She decided to re-report in 2021 and the police refused to re-open the case. It was only when CWJ threatened to go to court in a judicial review in September 2021 that the police agreed to obtain advice from CPS. In autumn 2022 that survivor is still waiting for further investigations and for the case to be referred to CPS for a charging decision. The waiting is not passive, it involves an endless back and forth of enquiries, chasing, dates for next steps given, missed and ignored.
This is not what women who have experienced rape, one of the most serious offences on the statute book, should be having to go through to secure a criminal justice response. Approximately only 3% of reported rapes result in a suspect being charged, so these women may be considered some of the lucky ones! They need the most incredible tenacity to push criminal justice agencies to do their jobs, sometimes having to seek reviews and threaten legal challenges at each step of the process. No surprise that the majority of survivors feel the need to get on with their lives and drop out of the system. Many survivors simply give up along the way, totally disillusioned with a gridlocked system that requires them to battle against agencies who are supposed to be on their side. Home Office data for the year ending March 2021 shows 42% of rape cases ending with outcome code “victim does not support”, and the Government ‘scorecards’ for July to September 2021 has this figure at 63%.[1]
Personal Record Requests
To add insult to injury many survivors do not only have to push the police and CPS to progress their cases, but also feel that they themselves are the ones being put on trial when police investigations involve numerous requests for their mobile phone downloads, and for disclosure of their personal records such as counselling records, medical records, social services and school records. Suspects are not subjected to this.
In June 2020 the Court of Appeal in R v Bater-James said that a rape victim’s right to respect for their privacy must be balanced against the accused’s right to a fair trial, and such requests should not be made on a speculative basis where there is no particular reason to think that there is relevant evidence in victims’ personal data. Many requests that we have seen at CWJ are precisely these kinds of blanket speculative requests.
In dozens of cases CWJ has advised survivors and their support workers at Rape Crisis Centres that requests made by police are not a reasonable line of enquiry. In many cases support workers push back and the request is eventually dropped. In other cases survivors feel that they should co-operate with police requests, despite being advised that these requests are unlawful, but still feel that they themselves are under investigation and their privacy violated. Others decide that they simply have no faith left in the system and drop out, deciding to prioritise their recovery.
CWJ prepared a dossier of case examples from our legal advice service where police and CPS had demanded disclosure of survivors’ personal records without a lawful basis. We provided this to national leaders on rape prosecution in the police and CPS. We are told that our case examples are helping to shape a new approach by prosecutors to these kinds of disclosure requests. We are waiting for the day when we see things change on the ground.