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Rape and Sexual Offences:         Chapter 8: Case Building


See the Directors Guidance on Charging for the responsibilities of the police and CPS and operational arrangements.

The CPS Policy Statement on Rape emphasises the importance of building cases, rather than merely identifying their evidential weaknesses and requires a proactive approach to prosecuting.

The Merits-Based Approach

When determining whether to prosecute rape cases, prosecutors should adopt a merits based approach to the evidential stage of the Code for Crown Prosecutors full code test and ask whether, on balance, the evidence is sufficient to merit a conviction taking into account what is known about the defence case. This approach was confirmed by the Divisional Court in R (on the application of B) v Director of Public Prosecutions in 2009. In June 2009, in a minute to all CCPs, the DPP instructed that they should ensure that the merits based approach was understood and adopted by all those who review rape cases. He emphasised that the alternative, described by the Court as a purely predictive (or book-makers) approach based on past experience in similar cases would be wrong. See: <>.

Early Consultation

The HMCPSI report on the joint review of the investigation and prosecution of rape offences, Without Consent, recommended that police forces and the CPS ensure that rape cases receive full and early consultation between the IO and the rape specialist prosecutor. It also emphasised that there is a need to ensure that both police and prosecutors undertake early liaison and a team approach to case building.

Early consultation between the police and the CPS is essential in rape cases and the investigating officer will arrange an early consultation with a rape specialist prosecutor once the appropriate evidential standard is passed, where the allegations have not been or are not being admitted, or it seems likely that they will be denied.

Where a custody charging decision may be required an early consultation with a rape specialist prosecutor should take place as soon as practicable. Wherever possible this should take place within 24 hours in cases where the suspect is being detained in custody or within 7 days where released on bail .

Combining the investigative and prosecutorial skills of the police and the rape specialist prosecutor ensures the early development of a joint strategy for the prosecution. Rape Specialist prosecutors will provide a provisional assessment of the case, lines of enquiry, identify likely charges and the evidence required to support them. They will be proactive in identifying and where possible rectifying evidential deficiencies and in bringing to an early conclusion those cases that cannot be strengthened by further evidence.

At the consultation stage the police should share with the rape specialist such information as they have about the case.

Consultation will be face to face in accordance with Paragraph 33 the Directors Guidance on Charging and in accordance with any local arrangements.

Early consultations need not be restricted to cases where there is already an identifiable suspect or that pass the threshold test. They may take place in any case where the early involvement of a prosecutor would assist in the gathering of relevant evidence, the questions to be asked of suspects, any pre-charge court procedures and any strategy for a likely prosecution. A brief written record of the consultation should be made on an MG3.

Where the rape specialist prosecutor considers there is not enough evidence to proceed to charge but that further evidence could be obtained, they will provide investigative advice identifying all steps and evidence needed to provide a realistic prospect of conviction, including a detailed action plan on the MG3.

Chief Constables and Chief Crown Prosecutors will agree local arrangements for early consultations to take place. This should be with the rape specialist prosecutor allocated to the case. At the consultation stage, when it is not yet anticipated that authority to charge will be given, the police will not be required to submit a Pre-Charge evidential report in line with the National file Standard but should share with the rape specialist such information as they have about the case.

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Pre-charge Activity

Upon receipt of a pre-charge report, the allocated rape specialist lawyer:

  • Creates an MG3/ 3A and Action Plan with action dates;
  • Checks that the reverse of MG11 is filled in and any related MG2 completed;
  • Ensures that the case is properly flagged as a rape case on CMS;
  • Creates a detailed review on CMS to refer to all relevant issues from the Advice/ Review Checklist (copy attached as Annex D);
  • Considers material that undermines the prosecution case or assists the defence case, especially potential third party material. Detailed guidance is contained in Disclosure Manual;
  • Considers holding a pre-trial witness interview (PTWI) and records their decision;
  • Considers the forensic strategy and discusses the case with the forensic scientist if appropriate (See Chapter 9 Forensic/Scientific/Medical Evidence);
  • Considers whether a forensic physician and/or medical expert should be called to give evidence, and takes steps to brief the expert properly in accordance with CPS guidance (See Chapter 9 Forensic/Scientific/Medical Evidence).

NFA, lesser offences and DCV requirements

Any decision to NFA or charge a lesser offence must be agreed by a second rape specialist and the decision and name of the second specialist recorded on CMS. A DCV letter offering meeting must be sent to the complainant in accordance with Victims Code.

Preparing and Managing the Case

Upon receipt of the upgrade file, a review should be undertaken by the allocated rape specialist lawyer and recorded on CMS. The lawyer will:

  • Draft and forward to the police a further Action Plan (if required);
  • Review the unused material;
  • Serve prosecution evidence in accordance with courts directions;
  • Supply initial disclosure and update disclosure record sheet;
  • Prepare special measures applications, bad character applications and hearsay applications as necessary;
  • Brief an appropriate advocate - counsel who has been accredited and monitored or in-house advocate who is a Rape Specialist;
  • Prepare Instructions to counsel to include all relevant issues from the Advice/ Review Checklist;
  • Arrange to hold a conference with trial counsel, the investigating officer, the forensic physician and any other expert witnesses as soon as possible. Ensure a record is made of any conference including those held at court;
  • Co-ordinate any special measures meeting to enable counsel to meet the witness;
  • Record on CMS any particular reasons for not including the forensic physician in the conference;
  • Consider the defence statement and any actions required or chase defence and advise court if none received;
  • Copy defence statement to police with Action Plan Consider response - Supply continuing disclosure letter;
  • Liaise with the Witness Care Unit over outcome of any special measures application and pre-court familiarisation visit and ensure that the victim is updated on progress;
  • Address any victim/ witness concerns;
  • Check that an updated Victim Personal Statement has been served on the defence and court;
  • Ensure that the victim has been advised of the making of and outcome of any section 41 application or confirm with defence that none is to be made and remind them of timescales.

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