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Rape and Sexual Offences:
Chapter 10: Charging Practice


Charging Practice

The charging decision must be recorded on the MG3/3A on CMS and set out which of the threshold test or full code test applies. The detailed review on CMS must include a list of the authorised charges and refer to all relevant issues from the Advice/ Review Checklist.

The prosecutor must agree with the police a realistic timescale for receipt of evidence (e.g. forensic) and preparation of case papers. This timescale must be recorded in the Action Plan.

A media interest form should be completed if appropriate (see Rape and Sexual Offences: Chapter 20: Media guidance for Prosecutors).

Prosecutors should specify in the indictment whether the vagina, anus or mouth was penetrated. Where penetration of more than one orifice occurs, separate counts of rape should be preferred.

Alternative charges

Prosecutors should use alternative counts sparingly and only where there are doubts concerning the issues e.g. if evidence is unclear whether the victim was penetrated by a penis or other object, an alternative of assault by penetration would be appropriate.

Similarly where a complainant between the ages of 13 and 15 makes a clear and credible complaint of rape, the suspect accepts that sexual activity took place, but claims that it was with the complainant's consent, and there is evidence that the defendant knew that the complainant was under 16, prosecutors should charge the suspect with rape rather than a section 9, sexual activity with a child offence.

Charging an alternative section 9 offence is not regarded as good practice. It may send a signal to the jury that the prosecution is not confident of its case, and may thereby weaken the prosecution's position in respect of the primary offence of rape. It may also serve to give a jury an easy option of convicting of section 9, rather than rape.

Accepting a plea to section 9

See Acceptance of Pleas and Newton Hearings 

A sensitive situation may arise where the evidence of a complainant aged between 13 and 15 who has alleged rape or other non-consensual sexual activity for some reason loses credibility or reliability post-charge. The prosecutor will need to decide whether to accept a plea to section 9 based on the defendant's account, or to offer no evidence.

Each case must be carefully considered on its merits, but the presentational difficulties of accepting an alternative lesser plea may be overcome by:

  1. Explaining to the judge that the prosecution are no longer in a position to proceed with the more serious non-consensual offence;
  2. Outlining the facts that are common between the defence and the prosecution;
  3. Outlining the defendant's account , and informing the judge that the prosecution are not in a position to contradict this account;
  4. Describing the complainant's injuries (if any) and outlining the available medical evidence.
    The judge can then sentence on that basis.

Prosecutors are reminded however, that such a course would require sensitive handling and the witness and his/her family should be consulted to ensure they understand what is happening and that their views are taken into account.

If the defendant asserts a fact which is outside the knowledge of the prosecutor or prosecution witness, such as his/her state of mind, and the mitigation will have a significant impact on sentence, the sentencer should be invited not to accept such mitigation without hearing from the offender on oath and to test the offenders account in cross-examination in a Newton Hearing.

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