Women’s groups deeply disappointed by judges failure to hold CPS accountable on rape prosecutions collapse

Today’s (Monday 15 March) judgment delivered online, by three senior Justices – including the Lord Chief Justice – declines to examine the evidence presented on behalf of the End Violence Against women coalition and instead accepts the case made by the Director of Public Prosecutions (DPP) that there had been no change 'in substance’ to the policy that the CPS apply when they consider whether or not to prosecute a serious sexual offence.

Campaigners say “we were right to bring this case and we are deeply disappointed with the outcome, which brings us no closer to institutions having to answer for a catastrophic collapse in rape justice”.

This decision follows a shocking and unprecedented collapse in the volume and percentage of rape allegations resulting in a prosecution between 2016 and 2020. Between 2009/10 and 2016/17, an average of 3,446 rape allegations were charged per year. In 2017/18, the annual volume of prosecutions had fallen by almost a quarter, and by 2018/19, it had dropped by over a half - with only 1,758 prosecutions being pursued by the CPS, despite a total of 55,000 allegations being reported that year to the police.

In 2019/20, prosecution rates remained at a record low with well under 2,000 cases prosecuted, meaning on average less than 3% of cases reported to the police went on to be charged.

Evidence before the court showed that senior figures at the CPS fully recognised that implementing these measures carried a clear risk that prosecutors might start applying the evidential test too cautiously and prosecuting fewer cases. This risk was however dismissed, and the CPS decided to adopt the measures.

The Claimant has requested permission to appeal this judgment which is likely to cause concern for members of the public, who in the wake of the Sarah Everard murder, are expressing their outrage at the failure of the criminal justice system to provide adequate protection for women and tackle the epidemic of male violence.

The case attracted enormous public support and attention including almost 4,000 individual donations via a CrowdJustice page to support the costs of bringing this action. Most of the donations came in small amounts from women, who had themselves been let down by the criminal justice system when they tried to report their rape.

EVAW will now be expected to turn over £75,000 in costs raised from a public appeal to the CPS, unless the DPP waives those costs.

Further detail on what EVAW and CWJ make of the judgement can be found below.

Andrea Simon, Director of EVAW said:

“We are deeply disappointed at this outcome; however, we have no regrets about holding institutions accountable for the effective decriminalisation of rape. Thousands of rape victims continue to be let down by a broken criminal justice system. The Court of Appeal has given the CPS the benefit of the doubt, on whether there was any change of approach to prosecution decision making, but we still lack alternative answers to why rape prosecutions have collapsed. This marks another establishment betrayal of victims of violence against women and girls.

This legal challenge brought huge public awareness to what is going on with rape, it brought about changes to prosecution guidance and harnessed political attention to women’s struggle for justice. Today’s judgment lands in the midst of a national conversation about how unacceptably commonplace violence against women is, and the constraints women feel they have to put on their freedoms to simply go about their lives.

Rape urgently needs to be at the heart of the political agenda, there are systemic failings – with some victims highly invisible to the justice system because of their race, disability, or background. We expect a review into rape by the Government to report soon, and it must deliver deep and meaningful change to restore any confidence in the system.

Throughout our legal challenge, we have been overwhelmed by the huge outpouring of public support for our case, including the donations by members of the public deeply affected by and concerned about justice for victims of rape raised on our CrowdJustice page. As these funds are now due to go towards the CPS’ legal costs, we hope that they will consider waiving the costs and giving the money to women’s organisations to provide future support and justice for victims and survivors of rape.”

Harriet Wistrich, Director of the Centre for Women’s Justice said:

“We are deeply disappointed that the Court of Appeal, declined to examine the extensive evidence produced by the Claimant in support of this legal challenge. In particular, we are disappointed that that the judges refused to admit the expert statistical evidence we produced which showed that the most plausible explanation for the undoubted collapse in rape prosecutions arose from the CPS decision to change their approach to prosecution decision making and prosecutors becoming more risk-averse as a result.

“We consider it deeply troubling that the judgment explicitly approves the decision by the then DPP, Alison Saunders, to change the messaging to crown prosecutors on the back of four high profile acquittals and a falling conviction rate, when there was an acknowledged risk this would lead to an over cautious approach. Our evidence shows this is exactly what happened and as a consequence rapists that might otherwise have been convicted are walking free and there is a growing perception that rape has been decriminalised’”

Kate Ellis, solicitor at Centre for Women’s Justice, who acted for the End Violence against Women Coalition, said:

“It is our view that the evidence plainly speaks for itself, notwithstanding the court’s judgment today.

“With reference to material that the DPP himself has disclosed, EVAW have been able to prove that the CPS knew full well they were pursuing a risky strategy when they chose to steer prosecutors away from the merits-based approach, and that they chose to do it anyway. They have been able to prove that the CPS knew the strategy would cause public concern, and that they decided to keep it quiet.

“The Claimants have been able to point to the statistics, which show that the introduction of these policy measures was followed by an unprecedented collapse in the volume of rape cases charged. They have demonstrated the impact with case studies. And they have been able to point to concerns raised by senior ranking police officers, police detectives on the front-line, rape crisis services across the country, and a whistleblower from within the CPS, all indicating that the CPS has now adopted an unacceptably risk-averse approach.

“That evidence is now in the public domain and – while the court may not have agreed that it shows illegality – it is undoubtedly reveals cause for public concern. This case has highlighted, if nothing else, an enormous accountability gap that needs to be addressed.

“To all of the victims and survivors of rape who supported our legal challenge, this will feel like yet another betrayal, by an establishment that publicly decries violence against women and girls but refuses to examine the need for institutional change.”

What we say about this judgment
EVAW’s legal team at Centre for Women’s Justice can now reveal for the first time that factual evidence presented to the court on the 26th and 27th January showed as follows:

What policy decisions we were challenging and why

In 2016, senior figures at the CPS decided on a package of policy and training measures designed to reduce the proportion of rape cases that resulted in acquittal (or improve its ‘conviction rates’). These included training rape prosecutors away from the so-called ‘merits-based approach’ to prosecutions that had been the CPS’ approach since 2009, and introducing ambitious rape conviction performance targets.

The CPS admit that these national policy decisions were prompted by some embarrassing publicity that the then Director of Public Prosecutions Dame Alison Saunders received, after 4 rape trials that summer resulted in high-profile acquittals.

The CPS also justify their policy decisions with reference to an inspectorate report from February 2016 which suggested that around 10% of a small sample of cases reviewed had been approved for charging when in fact the evidence gathered was not sufficient. That same inspectorate report, however, recommended ‘refresher training’ on the merits-based approach so that prosecutors better understood how to apply it properly. It did not recommend that prosecutors should be steered away from the merits-based approach altogether.

The CPS’ own Rape and Serious Sexual Offences Policy team was blindsided by the policy decisions. At least two members of the specialist RASSO policy team later expressed their views in internal correspondence that was disclosed in the proceedings, with one RASSO policy adviser stating they believed that as part of the changes made, guidance was removed which had always been ‘very helpful’, leaving behind a ‘gap’ in prosecutors’ understanding of the correct approach.

It was also fully recognised by the CPS that the policy measures they were proposing might be met with public concern. An internal memo disclosed in the course of the proceedings specifically warned: “To avoid any danger that any such “gentle touch on the tiller” is misinterpreted by stakeholders and interested pressure groups, any communication issued about this would need to be properly communicated”. Yet the CPS then decided not to communicate the policy measures to stakeholders or members of the public at all. This was despite the CPS having had an established practice, for several years, of consulting organisations working within the field of violence against women (and other stakeholders) on a regular basis about any important developments in its VAWG strategy.

Despite some prosecutors providing evidence in the proceedings to support the DPP’s argument that they considered the change of messaging in 2016/17 to be “helpful”, two whistle-blowers spoke of a culture of bullying within the CPS which prevented them from speaking publicly about their concerns about policy changes.

What was the impact of the policy decisions – what we say and what they say

Unsurprisingly, given the risk identified, prosecutors did then start prosecuting fewer cases. Over time, too, police officers began referring fewer cases to the CPS. This is reflected in the available statistics, showing a steep decline in prosecutions, and an increase – specifically – in CPS decisions to close cases.

The CPS has tried to explain away the decline in prosecutions by reference to other possible factors. However, an expert statistician from Oxford University, who exhaustively analysed the available data, disagreed with the CPS’ explanations and found that none of the other factors on their own could account for the trends in the CPS’ own statistics.

What other evidence is there of wrong decision-making by prosecutors?

Experienced and high-ranking police officers have repeatedly expressed their own view – publicly and privately – that the evidential bar for prosecuting a rape case has been raised by the CPS and that this is having a chilling effect. Within the last few years this issue has been raised by the National Police Lead for Adult Sexual Offences, the National Police Lead for Charging, the Chair of the National Police Chiefs’ Council, the Chief Inspector of Constabulary, together with detective constables on the frontline.

Under pressure from the National Police Lead for Adult Sexual Offences – and just a few weeks before the judicial review trial – the CPS agreed to review 21 cases out of a larger sample of 146 cases that had been dropped in 2018/19 (and had all been flagged as potentially wrong decisions). Out of the 21 cases reviewed in detail, the CPS admitted to the Court of Appeal that 15 in total had been wrongly dropped (of which 10 cases also involved domestic abuse). Prosecutors are now having to establish whether the victims of these crimes can still be traced, and the suspects brought to justice, despite the passage of time.

In some of the case studies that were relied on by EVAW as part of its challenge, too, the CPS has now admitted that decisions made not to prosecute were flawed. In one case, the evidence was so strong that when it was eventually re-opened and was prosecuted by the CPS following an internal review, the defendant pleaded guilty rather than contest the allegations at trial. The victim in that case was a child.

Significantly, the majority of the above evidence was not disputed by the DPP, and in fact some of it had in fact stemmed from material that had been disclosed by the CPS itself. The DPP simply maintained that the evidence cited should not give the court cause for concern. To EVAW’s disappointment, the judges also refused to take into account expert analysis of the statistical data, ruling that the Court did not need to take this evidence into consideration in order to reach a conclusion.

It was EVAW’s case, too, that the DPP’s own evidence simply could not be considered credible in light of other overwhelming evidence available to refute it. In one witness statement relied on by the Director of Public Prosecutions, a Chief Crown Prosecutor claimed that she did not think there had been any change in prosecutorial practice in relation to rape cases in her area of the country whatsoever in the period after prosecutors received training to stop applying the “merits-based approach”. Regional data disclosed from the CPS in the weeks before trial showed however that there had been a sudden drop of over 60% in the charging rate in her region alone, in the period immediately following the controversial trainings.

Remarkably however, the Court of Appeal concluded that such witness evidence, taken at face value, was sufficient to rebut EVAW’s case.

EVAW’s evidence included over 20 compelling case studies, all involving women or children whose complaints of rape had been refused charge by the CPS. Some of these women have seen their cases eventually reopened after a lengthy review process that established the original decision was wrong – while others may never see their attacker prosecuted.

Notes:

1. A ‘Q and A’ briefing on the decision can be found here

2. the judgement is available here

3. Figures published by the Home Office in July 2020 show that 1in 70 rape cases are charged: https://www.theguardian.com/society/2020/jul/17/one-in-70-recorded-rapes-in-england-and-wales-led-to-charge-last-year?CMP=Share_iOSApp_Other

4. https://www.endviolenceagainstwomen.org.uk/our-judicial-review-evidence-against-cps-handed-over-to-government-2/

5. https://www.endviolenceagainstwomen.org.uk/rape-prosecutions-new-report-finds-system-collapse-calls-for-political-intervention-on-juries-police-and-prosecutors/