Key Evidence (links to full bundle can be found at the bottom of the page)

Synopsis of EVAW’s Legal Challenge and Evidence Dossier

What the case was about: Whether there had been a change of approach by the Crown Prosecution Service from (2016/17 onwards) to the prosecution of Rape and Serious Sexual Offences (RASSO) cases – effectively a perceived shift away from the ‘merits-based approach’ to charging decisions – and if so whether that change of approach had been brought about unlawfully.

Put simply, EVAW sought to raise concerns that as a consequence of the perceived change in approach, prosecutors had become more ‘risk-averse’ in their approach to charging decisions. We also argued that – even if the court did not think it was able to determine whether prosecutors had become significantly more risk-averse in practice – there was at least a risk that this had happened, and the secretive and impromptu way in which the CPS had brought about a change in approach (likely to be so controversial in the women’s sector) was in itself unlawful.

Since the CPS persisted in denying to the court that trainings and changes to guidance delivered amounted to a material change in policy or practice, EVAW sought to rely on a huge volume of evidence to show that – in effect, even if not in intention – there had been a significant change in approach, that could be traced back to CPS Director of Legal Services Greg McGill’s ‘roadshow’ trainings for RASSO prosecutors in 2016/17 and the piecemeal removal from guidance of all reference to the ‘merits-based approach’ in 2017/18.

We were ultimately refused permission for the judicial review claim to be heard, not because the court fundamentally disagreed with our evidence, but because it reached the conclusion (which we disagree with) that faced with a denial by the CPS that there had even been any change of approach, it was bound to treat that assertion by the CPS in good faith – despite a substantial body of evidence to the contrary.

EVAW is represented by lawyers at the Centre for Women’s Justice.

What we found: EVAW relied upon FIVE main strands of evidence:

A. Whistle-blower’ evidence – the perceptions of prosecutors within the CPS

From the very beginning of the case EVAW worked with a whistle-blower – an experienced RASSO prosecutor from within the CPS – who was identified in the proceedings only by the cipher ‘XX’ as they were afraid that identification would result in victimisation/the loss of their employment.

‘XX’ provided an anonymous statement in which they explained, in essence, that:

As an experienced RASSO prosecutor, they understood the message of Greg McGill’s roadshow trainings for RASSO prosecutors in 2016/17 to represent a clear, intentional and significant change in approach, directing RASSO prosecutors away from ‘merits-based approach’ that had previously been a central plank of RASSO trainings and guidance;
They were concerned about the implications of these roadshows which they thought would encourage prosecutors to be risk-averse in their approach to prosecutorial decisions;
They had discussed the reactions to the roadshows with other RASSO prosecutors who also expressed the view that this represented a change of approach;
They considered the change of approach to have been further cemented by the removal of references to the merits-based approach in guidance.

EVAW also sought to rely on a second witness statement from XX, and on a witness statement from another RASSO prosecutor who came forward (‘YY’), explaining that the current toxic culture within the CPS was likely to prevent RASSO prosecutors from raising or escalating any concerns about a change of approach with their managers. This was important because Greg McGill had claimed that if there had been any perception/concern internally that practices were changing, CPS management would know about it. XX and YY said that this was inherently unlikely.

Neither XX nor YY were, unfortunately, able to say as much as they would have liked to say about the change of approach – or rely on all of the internal material that they would have liked to – for fear of being identified. Their evidence was in our view however very significant.

B. Expert evidence – what the data shows

It became clear to us when the CPS’ 2017/18 VAWG report was published that there had been an alarming, precipitous drop in the rate and volume of RASSO prosecutions from the previous year. London-based Rape Crisis centres and others were also reporting that they were seeing hardly any of their service-users’ rape complaints resulting in a decision to charge. Volumes continued to fall dramatically quarter on quarter over 2018/19 and have now stagnated going into 2019/20. XX had already indicated to us that, for the reasons later set out in their statement, they were not surprised by this drop.

EVAW therefore instructed expert statistician/econometrician from Oxford University, Professor Abigail Adams, to provide an expert report looking at patterns in the data.

Prof Adams was asked to examine all of the data in the CPS’ annual VAWG reports from 2012/13 through to 2018/19, together with:

Statements made by CPS representatives purporting to explain the fall in rates/volumes of RASSO prosecutions (largely by blaming the police, or attributing it to rising reporting rates, and/or claiming that the fall was due to a rising volume of cases that had been caught in a backlog or administratively finalised, and might still be charged);
Information disclosed by the CPS in the course of the legal proceedings, including a confirmed timeline setting out dates and locations of Greg McGill’s ‘roadshow trainings’ and of changes to prosecutorial guidance;
Various other published data/analysis available regarding changing CJS outcomes; and
Examples of evidence (public or otherwise) obtained by the Claimant suggesting that there had been a change in approach, implemented through the roadshows and the changes to the guidance.

Prof Adams was asked to conclude, if possible, ‘whether the available evidence is consistent with a change in Crown Prosecution Service [‘CPS’] practice toward the charging of rape (and other serious sexual offences)’, treating as her ‘index events’ for that change Greg McGill’s roadshows (rolled out nationally in Autumn 2016 and across 2017) and the removal of guidance relating to the MBA (effected in a piecemeal fashion in May 2017, November 2017, and Autumn 2018).

To summarise her findings very briefly, Prof Adams concluded that the available evidence was consistent with a change in practice by the CPS following the policy decisions of Greg McGill of 2016/17.

This conclusion was based in large part on the fact that none of the alternative explanations that had been provided by the CPS for the drop in volumes were consistent with the data. For example, she identified that – particularly in recent quarters – there had been a rise in the number of cases ‘NFA’d’ by the CPS. This was obviously difficult to reconcile with the CPS’ claims that it was the police who were NFA’ing more cases, not the CPS; and with their claims that any drop in prosecution volumes was attributable to cases still being under investigation/admin-finalised which might yet result in a charging decision.

At the very least, the numbers of cases delayed, admin-finalised or NFA’d by the police could not explain a drop in prosecution volumes of such ‘magnitude’.

Our expert’s analysis was, essentially, not disputed by the CPS. They simply contended that there could be a myriad of reasons for the drop in prosecutions which could not be explained simply by reference for the data.

C. Dossier of case studies – evidence of a ‘risk-averse’ approach in practice

EVAW also gathered over 20 RASSO case studies (collated by the Centre for Women’s Justice with the consent of survivors) in which decisions had been made by the CPS not to proceed with a prosecution.

In some cases, a decision had been made not even to charge the perpetrator, following a referral by the police; in others, the perpetrator had initially been charged but the prosecution had then be discontinued before trial. All of the CPS decisions in question had been made since 2016/17 when we say the ‘change in approach’ was rolled out.

We think that what these case studies show is a concerningly risk-averse approach in practice. We could not prove, of course, that the RASSO prosecutors who had made the decisions in each case had attended Greg McGill’s roadshows, or that they would have made less risk-averse decisions had this case arrived on their desk five years previously. We did however think that the cases would give the court (and the public) a better understanding of the kind of risk-averse decision-making that we were worried about.

There is undoubtedly a range within the dossier: some of the cases are perhaps more ‘typically’ challenging cases (e.g. involving complainants who due to intoxication are unable to remember the entirety of the incident; cases where there are limited sources of evidence available at the outset beyond the two parties’ accounts), but where there appears to have been perhaps little willingness by police and prosecutors to try and overcome the difficulties by making the best of the credible evidence that is available.

Some cases however appeared to involve some fairly strong/compelling prima facie evidence, which made the decision not to proceed seem wilfully or absurdly risk-averse. There were for example cases involving multiple victims of the same perpetrator; suspects who had been caught out blatantly lying about the events; contemporaneous proof of injuries or damage to clothing; proof of the perpetrator having produced a weapon; self-incriminating apologies from the suspect; multiple consistent disclosures having been made by the complainant to third parties before reporting to the police; and/or circumstances in which it seemed highly highly implausible that the complainant would have consented.

The CPS decision letters which had been sent to the complainants by way of explanation – and on which we relied as evidence – regularly reflected rape myths and stereotypes (sometimes very explicitly) which are specifically prohibited in CPS guidance. Very frequently, the fact of ‘one person’s word against another’ was also relied upon to suggest that a prosecution was impossible in these circumstances (which is not true) – or used in circumstances where ‘one person’s word against another’ was an unfair characterisation given that there was also independent evidence supportive of the complainant’s account. Often, overwhelming emphasis is also placed – after a very intrusive investigation – on circumstantial factors seen as undermining of the complainant’s credibility (e.g. based on her personal life/prior communications with the suspect or other men) while, conversely, little or no weight is placed on potential flaws in the defence case.

Harriet Wistrich (CWJ) gave a detailed statement in the proceedings in which she broke down some of the common themes and trends in the cases (and in the language of the decision letters), and explained why they are of particular concern.

D. Other (anecdotal) evidence from across the women’s sector – including evidence of the ‘trickle-down’ effect on the police

In the witness statement that Harriet provided in support of EVAW’s claim, she provided evidence (largely anecdotal) of the key issues reported by ISVA services etc on the frontline to CWJ in the course of CWJ’s collaborative work with women’s sector orgs which were considered relevant to the claim.

Two key themes identified were:

Unsurprisingly, universal and very significant concern/lack of confidence in the CPS across the women’s sector arising about the declining volume in prosecutors. Concerns arose both from the catastrophic drop in charging decisions, and from the CPS’ apparent unwillingness to address the problem;
A widely held perception that the CPS’ more risk-averse approach to decision-making has had major repercussions at the level of police decision-making, too.

We considered it very important for us to try and evidence the second point (and this is still clearly a very important issue) given that the consistent explanation given by the CPS publicly – and seemingly to the Rape Review – as to the drop of volumes of prosecutions is fewer referrals to the CPS from the police; the police NFA’ing more cases etc.

What we have been hearing at CWJ however – from ISVAs, and in fact directly from the police in some cases that CWJ have been working on – is that unsurprisingly, the police are ‘taking their lead’ from the CPS and thus being more risk-averse in their own approach to cases. The experience of from lawyers/advocates who handle large volumes of rape cases is certainly that the police are referring fewer cases to the CPS but that this is often because they are NFA’ing them themselves on the basis that if they are referred to the CPS there is little to no prospect that the CPS will charge – or because ‘Early Investigative Advice’ received from the CPS is often overwhelmingly negative.

Again, in some cases referred to by Harriet and Kate (CWJ) in witness evidence, police officers had given explanations to this effect for their decisions not to proceed with cases. Some police officers had been very frank in private discussions that the CPS were undoubtedly and universally perceived as being more risk-averse than they were a few years ago and that most police officers working in this field knew to expect that (even when they thought they had a ‘strong’ case) the CPS were almost certain to reject it.

Meanwhile, Sarah Green (EVAW) provided an extremely detailed statement (and large volume of supporting evidence) explaining:

Why the change in direction away from the merits-based approach (or in any event the removal of guidance etc precipitating that shift) was considered so alarming/disastrous by the women’s sector – setting out the common problems that guidance on the merits-based approach was intended to address, the extensive consultation with experts which precipitated that guidance, the fact that it reflected a wider cultural shift and the steadily positive impact that that shift began to have on outcomes for victims in the first half of the last decade; and
That it was unprecedented in recent memory, and highly concerning, for the CPS to have brought about a change in approach as significant as this without first consulting or even informing the women’s sector. (Extensive evidence was provided showing that the CPS regularly update and consult women’s sector stakeholders on issues of policy and practice far less significant than this and understand that they are expected to involve the women’s sector in this way.)

E. Disclosure from the CPS itself

Finally, by the end of the case we had been able to force disclosure from the CPS – to an extent – of:

Early internal discussions that took place between Greg McGill and others about the proposed roadshows, removal of the merits-based approach from guidance and training materials;
Responses at a high level within the CPS to the news that EVAW were bringing a legal challenge against the ‘change in approach’ to RASSO prosecutions.

The disclosure revealed that although Greg McGill (who places great emphasis on this) conceived of the change in approach as a mere ‘touch on the tiller’ rather than anything intentionally heavy-handed, he also gave specific instructions that as the change in approach was likely to cause widespread concern amongst externally stakeholders it should be carefully ‘communicated’. This, in our view, makes it all the more shocking that the change in approach was not communicated at all: there was no consultation and no information provided to external stakeholders.

The disclosure also revealed that the only evidential basis for the blanket ‘purge’ of the merits-based approach from all internal and external material was a single HMCPSI report based on a relatively small survey of cases, indicating that a handful of prosecutors had been perhaps applying the merits-based approach overzealously. It revealed that in response to this Greg McGill indicated that the merits-based approach was no longer to be a factor in decision-making discussions between police and prosecutors, and that if any Crown Counsel referred to the merits-based approach in discussions they were no longer to be instructed.

We also noted that at least some managerial-level policing and CPS staff had expressed concerns about confusion and chaos reigning within RASSO units and police forces about what the proper approach was, in light of the CPS’ public position that there had been ‘no change in approach’. EVAW’s position was that this total confusion on the part of CJS practitioners was unlikely to produce good outcomes for victims, either.

PLEASE NOTE: The CPS did not give permission for these documents to be shared more widely than the Rape Review team and are therefore not available publicly on our website.

The CPS’/HMCPSI’s position – and how this might risk misleading the Rape Review

In defending the case, the CPS relied heavily on the HMCPSI report published in December 2019 which they said showed definitively that there had been no change of approach on the part of the CPS. Indeed they claimed it represented a ‘total answer’ to the claim.

EVAW, however, relied in the proceedings on a letter sent by Victims’ Commissioner Dame Vera Baird QC to HMCPSI in which she set out her concerns about the process of the HMCPSI’s review and the report’s contents. The letter pointed to the resistance by the HMCPSI to any independent oversight of the review process, and concerns about the make-up of the review team; significant limitations in the scope/methodology of the review; and factual inaccuracies – as has since been, to an extent – admitted by HMCPSI itself in correspondence with Sarah (EVAW) and Vera. In addition, the purpose of the review was not of course to answer whether the CPS’ actions had been lawful.

The End Violence Against Women Coalition & The Centre for Women’s Justice

June 2020

Evidence Bundle:

Index (redacted as the CPS did not give permission for these documents to be shared)

PART A: CLAIMANT’S JUDICIAL REVIEW DOCUMENTS

Volume 1:

Part 1 - comprising:

Claimant’s Pleadings

1.Caim Form

2. Statement of Facts and Grounds

3. Draft Orders

Orders

3A. Confidentiality Order by Supperstone J

3B. Order by Supperstone J

3C. Order by Supperstone J

Part 2 - comprising:

Pre-Action Correspondence

4. Letter from DPP to members of CPS VAWG ECG, including Claimant

5. Letter Before Action

6. REDACTED

7. REDACTED

8. Letter from Claimant to Defendant

9. Letter from Claimant to Defendant

10. Letter from Defendant

11. REDACTED

12. REDACTED

13. REDACTED

14. Letter from Claimant to Defendant

15. Letter from Defendant to Claimant

Correspondence Since Claim Filed

15A. Letter from Defendant to Claimant with proposed undertakings and draft consent order

15B. Email from Claimant to Defendant agreeing undertaking

15C. Email from Defendant to Claimant with draft consent order and draft application notice

15D. Email from Claimant to Defendant with signed consent order

15E. Email from Defendant to Claimant confirming application notice has been filed

15F. Letter from the Defendant to the Court requesting extension of time

15G. Email from Claimant to Defendant and Court agreeing extension

15H. Letter from Claimant to Defendant enclosing Short Response to Summary Grounds of Defence

15I. Letter from Claimant to Court and Defendant containing SG2 and Second Supplementary Report of Professor Abigail Adams

15J. Letter from Defendant to Court and Claimant enclosing Note and HMCPSI report

15K. Letter from Claimant to Court and Defendant with enclosures

15L. Letter from Defendant to Court and Claimant

15M. Letter from Claimant to Court and Defendant

15N. Email from Claimant to Defendant enclosing N244 application to vacate hearing and draft order

15O. Letter from Defendant to Court and Claimant

15P. Letter from Claimant to Defendant

15Q. Letter from Defendant to Claimant

Part 3 - comprising

Public documents

16. Code for Crown Prosecutors, 7th Edition

17. Code for Crown Prosecutors, 6th Edition

18. Jessica Harris and Sharon Grace, ‘A question of evidence? Investigating and prosecuting rape in the 1990s’, Home Office Research Study 196

19. HMIC & HMCPSI joint inspection of the investigation and prosecution of rape cases

20. Extracts from CPS Legal Guidance for Rape and Sexual Offences: Chapter 8 – Case Building (removed from guidance prior to November 2018 and found in online research); and Chapter 21 – Societal Myths

21. Government Response to the Stern Review

22. CPS and Police Joint Action Plan on Rape

Part 4 - comprising:

23. Report of the Independent Review into the Investigation and Prosecution of Rape in London by Dame Elish Angiolini DBE QC

Part 5 - comprising:

24. CPS Response to FOIA Request dated 27.03.2018, found in online research

25. REDACTED

26. CPS VAWG Report, 2007-08

27. CPS VAWG Report, 2008-09

Volume 2:

28. CPS VAWG Report, 2009-10

29. CPS VAWG Report, 2010-11

30. CPS VAWG Report, 2011-12

31. CPS VAWG Report, 2012-13

32. CPS VAWG Report, 2013-14

33. CPS VAWG Report, 2014-15

Volume 3:

34. CPS VAWG Report, 2015-16

35. CPS VAWG Report, 2016-17

36. CPS VAWG Report, 2017-18

37. CPS VAWG Report, 2018-19

37A. CPS Action Plan

37B. South Eastern Circuit RASSO Training Seminar

37C. Witness Statement of Gregor McGill

37D. NPCC letter

37E. CPS main ‘Consultations’ webpage

37F. Government Ending VAWG 2016-2020: Strategy Refresh

Volume 4 & 5

Not available - no permission for these documents to be shared

Volume 6

77. First Witness Statement of Sarah Green

78/79. SG/ 1&2 Extracts from CPS VAWG Report, 2011- 12 & 2012- 13

80. SG/3: Notes of meeting with DPP Max Hill QC

81. SG/4: Extract from Rochdale Borough Safeguarding Children Board Report

82. SG/5: Extract from CPS VAWG Report, 2007- 08

83. SG/6: ‘A question of evidence? Investigating and prosecuting rape in the 1990s’, Home Office Research Study by Jessica Harris and Sharon Grace

84. SG/7: ‘Attitudes to Sexual Consent’, Research for the End Violence Against Women Coalition by YouGov

85. SG/8: Violence against Women: Strategy and Action Plans

86. SG/9: Mind mental health toolkit for prosecutors and advocates, ‘Achieving justice for victims and witnesses with mental distress’.

87. SG/10: Joint CPS and Police Action Plan on Rape

88. SG/11: Extract from CPS VAWG Report, 2016-17

89. SG/12: ‘Rape has been ‘decriminalised’ for the most vulnerable says senior Met adviser’, The Bureau of Investigative Journalism

90. SG/13: ‘Sexual offences in England and Wales: year ending March 2017’, Office for National Statistics

91-93. SG/14,15,16 Minutes from CPS consultation meeting with VAWG ECG 2009, 2013 & 2015

94. SG/17: CPS’ VAWG Work Plan for 2015-16

95.SG/18: Minutes from CPS VAWG ECG meeting of 25 April 2017

96. SG/19: Minutes from CPS Conference, ‘Rape: Effective Investigation leading to Successful Prosecution of Known Offenders’.

97. SG/20: Minutes from CPS Conference, Prosecuting Rape Conference 2007: Working Together: Building Better Cases’.

98. SG/21: CPS Consultation on the Violence against Women Strategy and Action Plans

Volume 7

99. SG/22: CPS Consultation Paper regarding policy for prosecuting rape

100. SG/23: CPS press release regarding new policies on prosecution of rape and domestic violence

101. SG/24: CPS press release announcing public consultation regarding allegedly false rape allegations

102. SG/25: Email from CPS to women’s sector organisations enclosing draft ‘Female Genital Mutilation Legal Guidance’

103. SG/26: ‘Responding to the challenge of rape myths in court. A guide for prosecutors’, report by Dr Nina Burrowes

104. SG/27: NPCC press release: roundtables with third sector organisations regarding prosecution of sexual assault cases

105. SG/28: Extract from CPS Guidelines on Prosecuting Cases of Child Sexual Abuse, paragraphs 58-59

106. SG/29: Rape Crisis England & Wales press release

107. SG/30: ‘Rape action plan: investigations must focus on accused, not complainant’, The Guardian

108. SG/31: Email from CPS to women’s sector organisations attaching minutes of consultation meeting

109. SG/32: MPS and CPS London response to the Report of the Independent Review into the Investigation and Prosecution of Rape in London by the Rt Hon Dame Elish Angiolini DBE QC

110. SG/33: Extract from CPS VAWG Report, 2015-16

111. SG/34: CPS draft Statutory Equality, Diversity and Inclusion Objectives, 2019-2022

112. SG/35: Home Office Crime Outcomes in England and Wales: year to December 2018

113. SG/36: Home Office Crime Outcomes in England and Wales: year to December 2017

114. SG/37: Ending Violence against Women and Girls Strategy: 2016-2020, HM Government

115. SG/38: Sexual violence statistics, Rape Crisis England & Wales

116. SG/39: Extract from ‘An Overview of Sexual Offending in England and Wales’, Joint statistics bulletin by the Ministry of Justice, Home Office & the Office for National Statistics, pp1 and 6

117. SG/40: The Stern Review: Report by Baroness Vivien Stern CBE into handling of rape complaints by public authorities in England & Wales

118. SG/41: ‘Rotherham child sexual abuse: judge calls authorities 'totally ineffectual’, The Guardian

119. SG/42: Home Office Crime Outcomes in England and Wales: year ending March 2019

120. SG/43: Charging Perverting the Course of Justice and Wasting Police Time in Cases Involving Allegedly False Rape and Domestic Violence Allegations, joint report to the DPP by Alison Levitt QC and the CPS Equality and Diversity Unit

120A. Second Witness Statement of Sarah Green

Exhibits to Green 2

120B. SG/44: End Violence Against Women Coalition Membership

120C. SG/45: Memorandum And Articles of Association of End Violence Against Women Coalition Ltd

Volume 8

121. First Witness Statement of Harriet Wistrich

Exhibits to Wistrich 1

122. HW/1: Case studies summary [Confidential Annex to the case studies summary containing underlying documents not yet supplied for confidentiality reasons].

HW/2: Selection of relevant media coverage, sub-tabbed as follows:

123. ‘Prosecutors urged to ditch 'weak' rape cases to improve figures’, The Guardian

124. ‘Crown Prosecution Service denies prosecutors were urged to drop ‘weak’ rape cases’, TalkRadio

125. ‘Rape charges down by 23% in year despite rise in police reports’, The Independent

126. ‘Number of rape charges at lowest level for 10 years’, BBC News

127. ‘Police accuse prosecutors of “raising bar” for rape cases after scandal over collapsed trials’, The Independent

128. ‘Rape cases to be reviewed by government after ‘alarming’ drop in prosecutions’, The Independent

129. ‘Only 1.7% of reported rapes prosecuted in England and Wales, new figures show’, The Independent

130. ‘Why are rape prosecutions falling?, BBC News

131. ‘Prosecutors “shrinking from challenges and letting down rape victims”, new Victims Commissioner says’, The Independent

132. ‘Women’s organisations threaten to sue CPS for ‘dropping too many rape cases’’, The Independent

133. ‘Why the CPS is accused of quietly dropping rape cases’, The Week