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CPS CONSULTATION ON THE HANDLING OF RAPE CASES

1. Introduction

Following publication of the Report on the Joint Inspection into the Investigation and Prosecution of Cases involving Allegations of Rape in April 2002, The CPS and police have been working to improve the way in which these cases are handled from the time the crime is reported to the police and right through the criminal justice process. The CPS intends to publish a public policy statement on its approach to rape cases. The public policy statement will also have annexed to it the contact details of community groups that offer invaluable help to victims of rape.

There is a general perception that the majority of rape offences are committed by a lone male against a female and that those involved are unlikely to know each other. In fact, the majority of rape victims know the defendant. This policy statement will cover the handling both of rape cases which involve victims of relationship rape, including marital rape, acquaintance rape, and of stranger rape. All may be equally serious and traumatic for the victim. Indeed, few offences impact so severely on the victim and on the fear of crime as does the offence of rape.

The Policy Statement will explain the way The CPS deal with rape cases and will provide general guidance on handling these cases throughout the process. This document provides a brief outline of our approach to cases involving allegations of rape and includes some of the main areas that we consider should be included in our policy statement. This is not an exhaustive list and we would be grateful to receive your comments on :

  • the selection of areas chosen,
  • whether there are other issues not mentioned which ought to be, and
  • the approach we intend to take.

2. CPS approach to prosecution of rape cases

The CPS is responsible for the review and, where appropriate, the prosecution of most criminal cases in England and Wales following investigation by the police. Following an investigation, the police may decide to refer the matter to The CPS for advice as to whether a prosecution should be brought. Cases involving allegations of rape are always referred to Crown Prosecutors who are both experienced and trained in the handling of sexual offences and cases involving vulnerable witnesses. The CPS is committed to having a network of specialist prosecutors to be identified in each CPS Area and who will link in with the domestic violence co-ordinators. These specialist prosecutors will work closely with the police to ensure sufficiency of evidence and that the correct charge is identified. They will be responsible for the case from advice stage to the conclusion of proceedings.

3. Code for Crown Prosecutors

The Director of Public Prosecutions is responsible for issuing a Code for Crown Prosecutors under section 10 of the Prosecution of Offences Act 1985. This gives guidance on the general principles to be applied when Crown Prosecutors make decisions about whether or not to prosecute. The Code is a public document designed to ensure that everyone knows the principles we apply when carrying out our work.

On receipt of a file from the police, the case is reviewed by a Crown Prosecutor in accordance with the Code for Crown Prosecutors. There are 2 tests which must be satisfied before a decision is taken to prosecute. The first is the evidential test to determine whether there is sufficient evidence to provide a realistic prospect of conviction. A realistic prospect of conviction means that a jury, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. When deciding whether there is sufficient evidence, the prosecutor must consider whether the evidence can be used and is reliable.

The second test is the public interest test. However if the case does not pass the first test, the evidential test, it must not go ahead, no matter how serious or important it may be. The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. However, the more serious the offence, the more likely it is that a prosecution will be in the public interest. CPS believes that rape is so serious that a prosecution is almost certainly always required in the public interest, provided that there is sufficient evidence.

4. Is there enough evidence?

It is an offence for a man to rape a woman or another man. Rape often occurs in private and the victim is often the only witness. This means that unless the defendant pleads guilty, it will usually be necessary for the victim to give evidence in court, to establish the basis for a prosecution. This can sometimes make it difficult as the issue is very often whether the victim consented to an act of intercourse which is admitted by the defendant. However, we will actively consider what other evidence may be available. Corroboration or supporting evidence is not essential but is always looked for, particularly any medical or scientific evidence. However, the burden of proof is upon the prosecution; that is, it is for the prosecution to establish the defendant's guilt. Therefore the prosecution must adduce evidence upon which, if it is accepted, a reasonable jury may convict.

The victim may be suffering from rape trauma syndrome and the broader clinical diagnosis of post traumatic stress disorder, which may render some victims emotionally incapable of providing a written statement shortly after an attack, or even for days or weeks. This guidance seeks to :

  • Guide prosecutors on the role of supporting evidence;
  • Identify evidential difficulties and how they might be overcome;
  • Handling prosecutions where the evidence may be limited to the victim's word against the defendants.
  • Other ideas you may consider to deal with evidential difficulties

5. Approach to retractions

Sometimes a rape victim will ask the police not to proceed any further with the case, or will ask to withdraw or retract the complaint. If the victim has decided to withdraw, the prosecutor should explore the issues behind the retraction, particularly if the victim is under pressure or frightened to proceed. The prosecutor will usually ask the police officer in the case to offer further support and advice to the victim. However, the prosecutor must consider the reason why the victim wishes to withdraw the complaint, the strength of the evidence and the views of the police officer in the case. The guidance here will address the following :

  • How the prosecutor will deal with a victim who wishes to withdraw;
  • The circumstances when a prosecutor should consider seeking a witness summons if, for example, there is a history of abuse;
  • If the victim confirms her account is true but still wishes to withdraw, whether there is sufficient evidence to continue without the victim;
  • Whether we should continue a case against the victim's wishes • Any other ways in which a victims may be supported

6. Is it in the public interest to prosecute?

If the evidential test is passed, we believe that rape is so serious that a prosecution is almost certainly always required in the public interest.

7. The acceptability of pleas

There may be occasions when, for a number of reasons, the prosecution may consider accepting a guilty plea from the defendant to a different charge. This might arise for example, if a defendant wishes to plead guilty to some, but not all of the charges, or because the victim may not wish to proceed, or because there are changes in the evidence which later comes to light.

In December 2000 the Attorney General issued guidance to prosecuting authorities on the approach to be adopted when considering the acceptance of pleas to a reduced number or less serious charges. The Guidelines emphasise the importance of ensuring that save in the most exceptional circumstances, the acceptance of pleas should be conducted in public with the prosecution able to explain their reasons for accepting the pleas in open court. The guidelines also emphasise the need to keep victims and their families informed and to reflect their interests when considering acceptability of pleas.

The Code for Crown Prosecutors also provides guidance on the acceptance of guilty pleas which reinforces the Attorney's Guidelines. If a defendant wishes to plead guilty to a different, and possibly less serious charge, the prosecutor should only accept the plea if they think the court is able to pass a sentence that matches the seriousness of the offence, particularly where there may be aggravating features. Crown Prosecutors should always take into account the consequences for the victim of the decision whether or not to proceed with a prosecution and any views expressed by the victim.

The guidance here will draw together the Code for Crown prosecutors and the Attorney General's Guidelines to address the following :

  • Keeping victims informed
  • Considerations when considering acceptance of pleas
  • Any other matters which ought to be covered

8. Bail issues

The police will provide sufficient information to prosecutors to enable a decision to be made on whether to oppose bail for the defendant. The National Standards of Witness Care provide for the provision of information by the police to The CPS in cases where witnesses are concerned about the possibility of a defendant being granted bail. They also stipulate that the police should notify any witnesses who have expressed such a concern if bail is granted. In view of victims' concerns about intimidation, it is particularly important in rape cases. To protect the victim or witnesses from the risk of danger, threats or pressure, which might obstruct the course of justice, the prosecution may ask that the defendant be kept in custody. If the defendant is granted bail, the prosecutor will consider and request appropriate conditions be attached to bail. It is also important that systems are in place to monitor breaches of bail. A victim's personal statement will also be considered to assist the prosecutor and the court when bail is considered. The guidance here will deal with :

  • Keeping victims and witnesses informed
  • How victims may be protected in the event of bail being granted
  • How victims views may be canvassed in decisions on bail
  • Any other views you may wish to have considered

9. Supporting victims pre-trial

Great progress has been made in the service provided to victims and a number of new initiatives and statutory provisions further enhance the support that can be given. The guidance will seek to explain :

  • Decisions on changes to charges. The prosecution has the responsibility for making decisions about a case; however, victims are provided with written confirmation and reasons for any significant decisions to drop or substantially alter any charges. In cases involving allegations of rape or any other sexual offences, The CPS will also offer a meeting with the victims to provide a full explanation.
  • How victims may be supported in giving their evidence at trial. 'Speaking up for Justice' published in 1998 recommended a number of proposals designed to encourage and support vulnerable or intimidated witnesses to give their best evidence in criminal cases. It also recommended early meetings between the police and The CPS to discuss and agree what special measure might be appropriate and to make such an application to the court.
  • The views and preferences of the victim are taken into account. Victims of sexual offences are deemed to be eligible unless they inform the court that they do not wish to be eligible. • Assistance from other support groups. There is liaison between CPS and Victim Support and the Witness Service prior to trial to alert them of listing dates, need for court familiarisation visits and for support. There is also liaison between CPS and special interest groups, such as sexual assault referral centre representatives, to develop good practice guidelines. • How victims can indicate the effects the offence has had on them. The victim's personal statement will be considered when the prosecutor is reviewing the case. The Victim Personal Statement is intended to give victims an opportunity to describe the wider effects of the crime on them and express their concerns in relation to bail and whether they require support or information about the case. • How prosecutors may be provided with more information about a victim prior to trial.

10. Supporting victims at trial

Often, decisions about the progress of a case may be taken at court. Victims should be informed about those decisions when they are at court, either by the Crown Prosecutor or by Counsel instructed. The guidance will explain:

  • Giving evidence can be a very traumatic experience for victims of rape offences and some find it difficult to give evidence in the sight of the defendant. If an application for Special Measures has been granted then victims may give evidence in a number of ways. Special measures include the screening of the witness from the defendant, giving evidence by live television link and evidence given in private by clearing the public gallery at court.
  • Counsel instructed to prosecute rape cases at the Crown court are always selected for their experience and ability in handling cases involving sexual offences and dealing sensitively with victims and witnesses. The Bar's Professional Rules encourage the practice of counsel meeting and speaking with victims and witnesses they expect to call to give evidence and to ensure that nervous witnesses are put at ease.
  • Contested cases almost invariably involve the defence challenging the victim's credibility or recollection and can involve a significant intrusion into personal circumstances, for example to demonstrate that the victim led the defendant to believe there was consent. Whist it is perfectly proper for the defence to mount a vigorous defence, it is vital that all steps are taken to reduce the impact that this can have on the victim. It is important that prosecution advocates are proactive in objecting to inappropriate crossexamination. The prosecution is assisted in dealing with this following implementation of Section 41 of the Youth Justice and Criminal Evidence Act 1999. This restricts the circumstances in which evidence or questioning about a victim's sexual behaviour can take place without the leave of the court. If the defence seek to adduce evidence or questioning under S. 41 and the court considers that its real purpose is to undermine the complainant, then the court will not allow it. Prosecutors must scrutinise defence applications to admit evidence of previous sexual behaviour to ensure that it is countered robustly.
  • Other proposals for supporting victims at Court

11. Sentencing and unduly lenient sentences

There are guidelines for judges when sentencing defendants convicted of rape. Revised sentencing guidelines in rape cases were issued on 9 December 2002, when the Lord Chief Justice gave judgement in 3 linked cases dealing with appeals against sentence in rape cases. The following points can be drawn from the judgement:

  • relationship and acquaintance rapes are to be treated as being of equal seriousness to stranger rape, with appropriate sentence dependant on mitigating or aggravating factors;
  • male rapes are as serious as those between a man and a woman and the same guidelines should apply;
  • there should be no inherent distinction made for sentencing purposes between anal and vaginal rape – where a victim is raped in both ways, this should be treated as repeated rape.

However, in the event that a judge passes a sentence which the prosecution consider is unduly lenient in the light of the facts on which the defendant was convicted, The CPS can ask the Attorney General to review the sentence and, if in his view the sentence is unduly lenient, he may make an application to the Court of Appeal to have the sentence reviewed. However, it does not have to be The CPS who refers it. If The CPS does not refer it to the Attorney General, the victim, the victim's family or a member of the public may do so.

The application is made by the Attorney General and must be made within 28 days of the sentence being passed. When the Court of Appeal hears an application, it can decide whether to grant leave to appeal; if leave is granted, whether the sentence imposed is unduly lenient and, if the sentence is unduly lenient, whether to exercise the courts discretion to increase the sentence. The unduly lenient sentence regime applies to sentences that are unduly lenient and not to sentences that are simply lenient.

The CPS is also working with the Criminal Appeal Office to ensure representation at the Court of Appeal in appeals against sentence, where appropriate. The CPS, through the police, aims to keep victims informed of:

  • any appeal hearings, against conviction and sentence;
  • in the event that a defendant is granted bail following a successful application for leave to appeal, or whose appeal has been granted.
  • Other proposals to improve information to victims.

12. CONCLUSION

We hope that you have found this document to be of interest. We look forward to receiving any views or comments you may have by 14 March 2003. Please forward responses to Pam Bowen at Policy Directorate, CPS Headquarters.