A Protocol between the Police and Crown Prosecution Service in the investigation and prosecution of allegations of rape
- The Parties to this Protocol are (INSERT FORCE) Police and the (INSERT AREA) Crown Prosecution Service (CPS).
- In 2002 HMCPSI and HMIC published a joint review of the investigation and prosecution of rape offences.
- In 2004 the CPS published a Policy for Prosecuting Cases of Rape.
- In 2005 Centrex (now NPIA) and ACPO issued Guidance on Investigating Serious Sexual Offences.
- In 2006 the Home Secretary issued The Code of Practice for Victims of Crime (the Victims' Code).
- In 2006 HMCPSI and HMIC undertook a joint review of the investigation and prosecution of rape offences to assess progress against the recommendations and suggestions of the previous inspection in 2002.
- Their findings, including recommendations and areas for improvement that have been accepted by the (INSERT FORCE) Police and (INSERT AREA) CPS, were published in the report Without Consent.
- Research shows that there is substantial under reporting of rape and in the last few years there has been a decline in the number of successful prosecutions with less than 6% of reported crimes currently ending in a conviction. The high attrition rate has been widely and critically publicised in the media.
- To reflect national ACPO and CPS policy;
- To ensure the adoption of the recommendations of Without Consent;
- To achieve improved and consistent performance in the investigation and prosecution of rape;
- To improve the service to, and increase confidence in the Criminal Justice System for, victims of rape.
- The Police will appoint a Rape Champion and the CPS will appoint an Area Rape Coordinator who will ensure that the investigation and prosecution of rape is coordinated between the agencies.
- (INSERT FORCE) Police will ensure that first response officers responding to reports of rape are sufficiently trained to present a supportive attitude to the victim.
- They will take an initial account from the victim, in line with the ACPO Guidance on Investigating Serious Sexual Offences.
- They will have the necessary level of forensic awareness and use every investigative opportunity to secure evidence including having access to, and knowledge of, early evidence kits.
- The investigative team will include a Specially Trained Officer (STO), trained in sexual offence investigation techniques. This officer should assume responsibility for the taking of key witness statements and remain attached to the case until the conclusion of the enquiry and any subsequent court proceedings. (Areas will have to adapt this section to reflect local arrangements and availability. Whilst some forces have specially trained officers known as Sex Offence Liaison Officers or Sex Offence Investigation Trained officers others use chaperones who take the complainant's statement and supervise the initial investigation before passing the case on for further investigation).
- The implementation of Section 27 Youth Justice and Criminal Evidence Act (YJ&CEA) means that in the case of investigations that commence on or after 1 September 2007 all rape victims will be eligible to apply for their visually recorded interview to be admitted as their evidence in chief. The police will not make an automatic decision to visually record interviews with complainants. Decisions will be taken on a case by case basis following receipt of the witness's views which should be obtained following a full explanation of the available options to include the advantages and disadvantages of pre-recorded evidence.
- The YJ&CEA provides that all victims in rape cases are eligible for assistance in the form of special measures on the grounds of fear or distress about testifying. Some are also eligible on the grounds of age or incapacity. It is essential that all such witnesses receive from the police an accurate explanation of the special measures for which they are eligible and their respective advantages and disadvantages including any potential impact on the proceedings. The police will consult with the witness and obtain their views which will be passed to the CPS to inform any special measures application.
- All victims' statements, whether in written form or visually recorded, will be taken by a police officer trained in sexual offence investigative techniques.
- Visually recorded interviews should be taken in accordance with Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses and Using Special Measures.
- The police will ensure that the sound and picture quality of the recording is fit for purpose.
- Any medical examination of the victim should take place in a dedicated examination suite. This is to ensure that both victim care and the integrity of evidence are maximised. The specific requirements of victims with special needs will always be considered. This may involve assistance with transportation or the use of hospital facilities for the medical examination if appropriate. (Forces should take into account distances victims are likely to travel when deciding where to site such facilities).
- The medical examination of the victim should be carried out by an appropriately trained Forensic Physician (FP), Forensic Nurse (FN) or paediatrician. Where practicable the wishes of the victim will be taken into account and adhered to in terms of the gender and or ethnicity of the FP or FN. (Areas will have to tailor this section to include the arrangements available locally).
- If a dedicated examination suite is not used and or a FP or FN is not used the Police should set out reasons on form MG6.
- Where an expert opinion is sought the Police will, as soon as is reasonably practicable, provide the FP with all prosecution evidence including the suspect's initial account, and with the defence statement when received. (Investigating officers and rape specialist prosecutors need to be aware that many FPs, whilst competent to carry out the examination and collect samples, lack the experience and expertise to provide expert opinion. This results in professional rather than expert status and may apply particularly where police forces have outsourced services. In these circumstances consideration should always be given to instructing an expert to provide an opinion on the FP's findings. Local arrangements may be required to ensure that this happens).
- The CPS will always include the FP in the conference with the prosecutor, trial advocate and the investigating officer (IO) unless there are particular reasons for not doing so.
- The CPS will always call the FP as a live witness at trial unless there are considered reasons for not doing so.
- The Police will provide the forensic service provider with a copy of the victim's statement or a note of their visually recorded interview (MG15 ROVI) and with any MG3 provided by CPS to inform the analysis of forensic submissions.
- Where an expert opinion is sought the Police will, as soon as is reasonably practicable, provide the forensic scientist with all prosecution evidence including the suspect's initial account, and with the defence statement when received.
- (INSERT AREA) CPS will maintain a list of rape specialist prosecutors (rape specialists). The CPS will ensure that rape cases are allocated to a rape specialist who will advise and have responsibility for rape cases from the pre-charge stage to the end of the case.
- Early consultation between the police and the CPS is essential in rape cases and Chief Constables and Chief Crown Prosecutors will agree local arrangements for full and early consultation to take place. This should be with the rape specialist responsible for the case from the pre-charge stage to the end of the case.
- The IO will arrange an early consultation with a rape specialist once the threshold test is passed, where the allegations have not been 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 should take place as soon as practicable, but where the detained person is considered suitable for bail the initial early consultation should take place within three working days of the release on bail.
- Combining the investigative skills of the police with the rape specialist's expertise will ensure the early development of a joint strategy for the prosecution. Rape specialists will provide a provisional assessment of the case, lines of further enquiry, identification of the likely charges and of 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, when it is not yet anticipated that authority to charge will be given, the police will not be required to submit an evidential report but will share with the rape specialist such information as they have about the case.
- Consultation will be face to face wherever possible. In exceptional circumstances a telephone consultation may be considered.
- Where the rape specialist 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 that may be undertaken to provide a realistic prospect of conviction, including the completion of a detailed action plan with agreed action dates on form MG3.
- 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 will be made by the prosecutor.
- Rape specialists and IOs will work closely together to build cases, ensuring that all possible avenues of evidence are explored and that the correct charge is identified. Rape specialists will use the Rape Prosecutions Advice/Review Checklist (attached to this Protocol at Annex A) for this purpose.
- Where a charging decision is made by CPS Direct, (INSERT AREA) CPS will ensure the immediate referral of the file to a rape specialist following charge. Alternatively, if CPS Direct advise the Police to submit a file for further advice by (INSERT AREA) CPS, such a file will be referred to a rape specialist.
- In the event of a duty prosecutor who is not a rape specialist having to make a threshold test charging decision the duty prosecutor will, wherever possible, consult with a rape specialist prior to that decision being made. Where such consultation is not possible the duty prosecutor may proceed to make a charging decision and CPS will ensure the immediate referral of the file to a rape specialist following charge.
- Where a duty prosecutor who is not a rape specialist makes a charging decision and determines that the case does not pass the threshold test the duty prosecutor may not determine that there should be no further action without the agreement of a rape specialist whose decision not to proceed should be confirmed by a second rape specialist. Where such consultation is not possible the police will release the suspect on bail for the case to be referred to a rape specialist at the earliest opportunity. Chief Constables and Chief Crown Prosecutors will make local arrangements for such referrals within agreed timescales.
- The police will ensure that any statements supplied to the prosecutor at the pre-charge stage contain the witness's details on the reverse of MG11 and, where required, will be accompanied by a completed MG2 to ensure that any requirement for special measures receives early informed consideration. Where a witness has provided a visually recorded interview an MG2 will be completed and supplied to the prosecutor as a matter of course.
- The IO will always make the visually recorded interview and ROVI (MG15) available to the prosecutor for the purposes of the charging decision. The prosecutor will watch the visually recorded interview.
- Unless the circumstances require the application of the threshold test, the police will provide the rape specialist responsible for making the charging decision with an evidential report containing the following:
- All key witness statements including medical and forensic;
- Visually recorded witness interviews and accompanying ROVIs;
- All key documentary exhibits;
- Record of suspect's interview;
- Any unused material which undermines the prosecution case or may assist the case for the accused including items relating to the complainant's credibility;
- Any third party material that is available including social services' records;
- Previous convictions of any suspect, complainant and witnesses.
- Where the Police seek a charging decision based on application of the threshold test they will provide detailed and comprehensive information on form MG7 to enable the prosecutor to determine whether the application of the threshold test is appropriate and to fully consider issues surrounding opposition to bail. They will also provide details of the further evidence likely to be obtained which will have a significant impact on the case.
- The CPS will ensure that every MG3 provided by a prosecutor contains a full record of the decisions taken with reasons.
- The CPS will ensure that every MG3 provided by a prosecutor contains an Action Plan unless there is no additional or outstanding work required from the Police. To ensure cases are managed efficiently action dates will be agreed between CPS and the Police and recorded on the Action Plan.
- Any decision not to prosecute an allegation of rape or to prefer a lesser charge will be confirmed by a second rape specialist and their opinion recorded on form MG3.
- Where a suspect has been arrested for rape and the custody officer decides that the threshold test is passed but determines that no further action is to be taken or a simple caution appears appropriate, the case must be referred to a rape specialist to confirm whether or not the case is to proceed. Exceptionally, where it is determined that a simple caution is appropriate in the case, the rape specialist will specify, on the MG3, the offence for which the caution is to be administered.
- The IO or disclosure officer and rape specialist will handle unused material in accordance with the Criminal Procedure and Investigations Act 1996 as amended, the relevant Code of Practice, the Attorney General's guidelines on disclosure and the Disclosure Manual.
- The police will ensure that the IO or disclosure officer is adequately trained on CPIA procedure.
- The IO or disclosure officer and rape specialist will be proactive in identifying relevant third party material at the pre-charge stage. Access to third party material will be sought prior to the decision to charge wherever possible.
- In respect of cases involving child victims, access to and exchange of third party material held by a local authority will be dealt with in accordance with local protocol signed between (INSERT FORCE) Police, (INSERT AREA) CPS and the (INSERT AREA) Local Authorities. (This will need to be tailored according to local arrangements).
- The rape specialist will make application to the Court for a witness summons in respect of third party material where appropriate.
- A conference with the trial advocate, the rape specialist, the IO, CPS caseworker and the FP (where appropriate) should be held in every rape case as soon as practicable after the advocate has received instructions. Prior to the conference the IO will contact any specialist support agency or Independent Sexual Violence Advisor (ISVA) for an update on the victim's situation and any recent developments.
- When a victim asks the Police not to proceed or withdraws the complaint the Police will take a written statement that will:
- Explain the reasons for withdrawing support;
- Say whether the original complaint was true;
- Say whether the complainant has been pressurised to withdraw by any person.
- In addition the Police will provide a report that will:
- Say what they think about the case, in particular the reasons for the withdrawal and its impact on the case;
- Say if the victim is supported by any specialist support service or an ISVA;
- Assess the risks to the victim and any other person's safety;
- Assess how the victim might react if required to attend court.
- If it is suspected that the victim has been pressurised or is frightened the Police will investigate further and assess any support that has been offered and whether the intervention of a local specialist support service or an ISVA could make a difference. The CPS will, if appropriate, ask the court to delay any hearing to enable this to be done.
- If the victim confirms that the complaint is true but still wants to withdraw the Police and CPS will consider the feasibility of continuing without the victim's evidence and whether to do so against the wishes of the victim.
- A decision to proceed and call the victim to give evidence against his or her wishes will only be taken by a rape specialist after consultation with the Police and the trial advocate.
- Where the rape specialist proposes to discontinue the case or substantially reduce the charge the rape specialist will consult with the Police to ensure that there is no further action that can be taken. The decision must be confirmed by a second rape specialist in writing and recorded on CMS (the CPS case management system).
- At the start of any rape investigation the police will ensure that victims are referred to local specialist support services including, where available, ISVAs.
- In every case that is subject to charge an individual should be identified to provide a single point of contact with the victim and, whether this is the IO, a witness care officer, a STO, CPS caseworker, specialist support service, ISVA, or another, the files of the police, CPS and Witness Care Unit (WCU) should be conspicuously marked so that it is clear to all parties who is responsible for communicating with the victim and keeping records of any actions.
- There will be an early special measures meeting between the IO and the rape specialist in every case to cover the requirements of witnesses for special measures and to enable the IO to inform the prosecutor of the views of the witnesses. Prior to this meeting the IO will contact the specialist support service or ISVA for an update on the victim's situation and any recent developments.
- In every rape prosecution the Police and CPS will consider whether a special measures meeting should be held with the witness.
- In every rape prosecution the WCU will arrange a court familiarisation visit for the victim. Where the victim requires additional assistance such as an interpreter or help in gaining access to the premises due to disability such assistance will be provided. In the interests of the victim and efficient case management wherever possible efforts will be made to coordinate the visit with the conference with counsel and the victim's special measures meeting.
- The Police will ensure that the victim in every rape case has the opportunity to provide a victim personal statement, the purpose of which is to assist the court by enabling the victim to describe the effect the offence has had and to express an opinion on bail and other issues.
- The police and CPS will comply with their responsibilities as set out in the Victims' Code.
- When a decision is taken by a rape specialist to substantially alter or drop a charge of rape the CPS will notify the victim of the decision within one working day and offer to meet the victim;
- When other than in the course of a face to face consultation with the Police following receipt of a full evidential report for a charging decision a rape specialist decides not to bring any proceedings the CPS will notify the Victim within one working day and offer to meet the victim;
- When the decision by CPS to take no further action was taken in the course of a face to face meeting with the Police, the Police will be responsible for notifying the victim of the decision.
- When a case is to be dropped or a charge reduced and the Police and CPS decide it is appropriate to do so, the Police will personally deliver an explanatory letter to the victim.
- CPS will select an advocate with the necessary skills and expertise to prosecute every rape trial, whether from the CPS list of accredited members of the self-employed Bar or from within the Service.
- The trial advocate will attend the plea and case management hearing save in exceptional circumstances, reasons for which will be recorded on the file.
- CPS will remind the prosecuting advocate to introduce themselves to the victim at court prior to the commencement of the trial. This is especially important if a special measures meeting with the victim has not taken place.
- CPS will remind the prosecuting advocate to challenge offensive and seemingly irrelevant questioning and deal with inappropriate cross examination of the victim about previous sexual experience.
- If a decision is taken at Court to offer no evidence or accept a lesser plea the views of the victim will be taken into account before a final decision is reached and the advocate will speak to the victim to explain the issues surrounding the decision.
- CPS will undertake regular monitoring of counsel who prosecute rape cases in accordance with the principles agreed with the Bar Council.
- CPS will remind advocates to provide a written report in any case involving an allegation of rape which results in an acquittal. Such reports will be copied to the Police.
- Feedback about good practice and aspects for improvement will be shared with the police through regular meetings between the Police Rape Champion and CPS Area rape coordinator. (Areas may insert specific details about the form that such meetings will take and the items to be included on the agenda. It may be helpful for a representative from the force's forensic service provider and any local SARC to be included in the meetings).
- In particular feedback meetings should address:
- Rate of no criming;
- Rate of sanction detections;
- Rate of withdrawal between charge and court;
- Number of prosecutions;
- Rate of discontinuance;
- Rate of rape trials resulting in a conviction.
- Such meetings will also include regular evaluation of the Protocol to identify levels of compliance, its effectiveness and any aspects for improvement.
- This agreement will take effect in respect of all police investigations commencing on or after (INSERT DATE).
Parties
Background
The objectives of this Protocol are:
Communication
First response
Investigation
Forensic medical examination
Forensic submissions
Rape specialist prosecutors
Full and early consultation
Charging
Out-of-court disposal or no further action
Disclosure
Review and case preparation
Victims and witnesses
They include:
