CPS response to the HMCPSI 2019 Rape Inspection

Rape is a devastating crime which can have a lasting impact on victims. It is one of the most serious criminal offences that we prosecute.

The CPS welcomes the scrutiny of the government's cross-sector, end-to-end review into how rape and sexual violence cases are handled across the criminal justice system. We share the deep public concern that while the number of allegations of rape and sexual offences has increased significantly, the number going to court has fallen. Only a small proportion of reported incidents ever reach the Crown Prosecution Service (CPS) for a charging decision. The review will make recommendations for actions that can be taken to support victims and bring more offenders to justice.

Questions have been asked about whether the CPS has become risk averse in our approach to these cases, and whether we are only charging ‘easy’ cases where a conviction is very likely. In the 2019 Rape Inspection, which will contribute to the wider review and is published today, HM Crown Prosecution Service Inspectorate (HMCPSI) specifically addresses this issue.

We are reassured that this inspection finds no evidence that our prosecutors are risk averse. The report also finds no evidence that prosecutors are charging fewer cases in order to increase conviction rates. It concludes that the fall in the numbers is not because of any lack of CPS commitment to prosecute.

We welcome the Inspectorate’s positive endorsement of the professionalism, dedication and commitment of our specialist prosecutors. Today’s report does identify a number of areas where we can work collaboratively with our partners to make improvements across the criminal justice system. We are committed to a wide-ranging, joint programme of work with the police to address issues including case progression, building strong cases from the outset, and accelerating the time taken to bring them to court. We will continue to drive progress together on digital capability and disclosure, embedding guidance to help investigators and prosecutors balance the needs of an investigation with the right to privacy. Victims' groups and other interested parties will provide valuable insight as we progress with this work.

Timely and sensitive communication with victims is essential if we are to help people to understand our decisions in these complex cases. We know we have much more to do to ensure we meet the quality standard all victims deserve from us. We will continue to work to achieve this aim.

While focusing on one part of the process, HMCPSI’s detailed report acknowledges that the investigation and prosecution of rape allegations is one of the most important challenges facing the whole of the criminal justice system. The CPS will continue to work alongside our partners to fulfil our role in the wider cross-Government review designed to identify system wide improvements. We want every victim of rape, or any other form of sexual violence, to have confidence to come forward, knowing that their case will be fully investigated and, whenever the evidence supports, it will be charged and fairly prosecuted.

CPS Specialist Rape Units

Every rape case referred to us by the police is reviewed by a specialist sexual violence prosecutor, working in a dedicated Rape and Serious Sexual Offences (RASSO) Unit. These experienced RASSO lawyers receive extensive, ongoing training in the specific complexities of these offences, including; the common psychological and emotional reactions to rape and sexual assault (sometimes referred to as “myths and stereotypes”); the impact of the trauma of rape; the impact of controlling and coercive behaviour on consent; and the challenges of prosecuting cases involving particularly vulnerable victims and witnesses.

The CPS has always been clear that our RASSO lawyers must always apply the legal test in the Code for Crown Prosecutors when making a charging decision in rape cases, as with all other crimes. This inspection reaffirms this key objective.

We welcome the Inspectorate’s finding that our prosecutors are “unfailingly committed and determined” to deliver justice through independent and fair prosecutions. The high quality casework and professional focus of the rape and serious sexual offence teams was identified as a strength. We agree.

Every charging decision is based on the same two-stage test in the Code for Crown Prosecutors: Does the evidence provide a realistic prospect of conviction? And; is it in the public interest to prosecute? HMCPSI examined 250 cases which led to a decision to charge, or to take no further action, and found that the Code Test was applied correctly in 98% of them. We welcome this confirmation of the work of our RASSO teams, nationwide.

We are pleased to note that the Inspectorate commended as a particular strength that our specialist prosecutors make high quality casework decisions, and achieve a very high level of compliance with the Code. In the vast majority of cases reviewed where the CPS decided not to charge, Inspectors agreed with that decision.

The Inspectorate notes that prosecutors in RASSO units are stretched, and challenged by increasing complexity in the cases they decide. The additional funding the CPS has recently secured will enable us to take some steps to address this once new prosecutors are in place. Pressures on RASSO Units will be considered when allocating our new prosecutors. Additionally, we are investing in finding the digital solutions to the real challenges of the volumes of digital material our prosecutors now face.

Together with the police, we must tackle head-on the pressures faced by our staff in both organisations, while making our extra funding go as far as possible.

Disclosure and Digital Material

Disclosure obligations apply to all offence types, but there are particular challenges in serious sexual offence cases. The Inspectorate noted that rape cases now involve necessary consideration of vastly more digital and third party material.

CPS guidance is clear that searches of digital devices should never be automatic. To address these challenges, the CPS published a series of guidance: ‘Guidelines on Communication Evidence’ (published January 2018) and ‘A Guide to “reasonable lines of enquiry” and Communications Evidence’ (July 2018). These set out clearly that requests to examine digital material must never be merely speculative.

HMCPSI found that in 60.9% of relevant cases examined, the lawyer properly identified where an action did or did not need to be raised for a complainant’s phone or other digital devices, and set out a proportionate request where it did. Whilst this is the majority of cases, we need to do better. The CPS has already recognised that this is an area where improvement is necessary, and we have prioritised action to make sure our guidance is properly followed, every time.

By February, all prosecutors on our RASSO Units will have completed mandatory training courses dedicated to reasonable lines of enquiry so that only requests which are necessary and proportionate are made in every case.

Building strong cases

The CPS notes the report’s finding that there are issues with the quality of the files the police submit to the CPS. The inspection found that around half of police case file submissions for a charging decision did not meet the required standard; and in over half these cases the failure was fatal to the prosecutor’s ability to review the case at that time.

A good quality file of evidence must follow a good police investigation. The CPS may send a police file back for further work, not because we do not wish to charge the case but because all of the required material must be in place to commence a prosecution. Action plans and other requests from prosecutors must be acted on by the police expeditiously. It is in the interests of all parties for investigations to be progressed, and charging decisions made, at the earliest opportunity. We want to generate progress on these important cases more quickly.

Joint commitment

This report from the independent inspectorate makes important recommendations for improving the way police and prosecutors work together to deliver justice in rape and serious sexual offences cases (RASSO). We welcome these recommendations, and are wholly committed to bringing about the improvements we all want to see. Joint work with the police is already underway, to develop new ways of working and pilot innovative practices, including:

  • Case progression: embedding new guidance on early investigative advice and reasonable lines of enquiry to ensure we build strong cases from the outset; and improving the implementation of action plans, through effective communication, clear timelines and robust escalation points to ensure we reduce the number that are administratively finalised and expedite bringing strong cases to court.
  • Digital capability and disclosure: embedding guidance to help investigators and prosecutors balance the needs of an investigation with the right to privacy; and working together to help the public understand the impact of digital evidence and third party evidence on our casework, including how we decide what data to collect, how we collect it as part of a criminal investigation and prosecution, and how it might be used.
  • Expertise: exploring different models, locally and nationally, for delivering specialist investigation and prosecution in RASSO cases; and following the publication of the Government’s Review, hosting a joint national conference and regional workshops to deliver specialist training to our investigators and prosecutors, including on the offender centric approach and trauma.
  • Supporting victims: working together and in partnership with specialist services, to ensure victims receive the right information and support and feel listened to; and improving the quality of our communications to ensure they are timely and sensitive to the needs of particularly vulnerable victims and witnesses.
  • Stakeholder engagement: drawing on the collective expertise of the police’s National Rape Working Group and the CPS’s external consultation group through workshops to help shape joint areas of work and our respective long-term plans.

We will drive forward delivery of these actions through a joint approach to data insight and to performance monitoring and measurement with strategic, operational and tactical oversight, nationally and locally. We will continue to play an active part in the important cross-Government review, which is considering how all parts of the justice system - the CPS, police, courts and others - can improve.

Societal attitudes, behaviour and understanding have changed hugely in recent years, and continue to evolve. In this changing environment, the difficulties of investigating and prosecuting some of the most emotive and finely balanced cases that can come into the criminal justice system remain. The CPS works closely with partners to ensure our guidance and practice is informed by the latest research in the field of sexual violence.

Annex - Addressing HMCPSI’s Recommendations

Inspectorate’s recommendations for CPS:

1.    CPS headquarters should consider the variations in Area conviction rates, particularly after trial, to ensure that decision-making is sound and that cases are being progressed effectively;

We accept this recommendation.

While the CPS no longer has targets for conviction rates, it is important that we understand what factors are influencing any changes or any variations. Conviction after trial varies not just by Area but by police force too (each of our Areas deal with at least two forces). We will be deploying an experienced Deputy Chief Crown Prosecutor as a dedicated resource to examine this at force and Area level.

2.    CPS headquarters should work with the police to develop a more effective system for monitoring RASSO cases which have been returned to the police for any reason pre-charge. The system should involve structured communications between Areas and their local forces so that the Area is made aware of likely timescales for the file to return to them, and when cases have been concluded in a no further action decision by the police. The national process should incorporate clear timelines and escalations, with monitoring of compliance at a senior level;

We accept this recommendation.

We will agree a national process with the National Police Chiefs’ Council to improve the implementation of action plans, through effective communication, clear timelines and robust escalation points to ensure we reduce the number of administratively finalisations and expedite bringing the highest quality prosecution cases to court. Any national process will be monitored for compliance locally.

3.    Areas should work with their local police partners to improve communication and reinforce the need for appropriate challenge by both parties at an operational level. This should be with the aim of achieving more effective case progression, and should include better understanding and communication of timescales for common investigative steps so that realistic targets for actions can be set, and unnecessary escalations avoided;

We accept this recommendation.

The police and CPS will be publishing a national joint commitment on Case Progression in the New Year, which will explore how investigators and prosecutors communicate more effectively across all of our casework. Our focus will be police and CPS capacity and capability, case file quality, the handover process between the police and CPS and how outstanding cases are monitored. Our joint progress on this work will report into the National Disclosure Improvement Plan Board, chaired by the Director of Public Prosecutions and the NPCC Criminal Justice lead.

4.    The revised Director’s Guidance should:

  • Focus on the types of rape cases where Early Investigative Advice (EIA) will bring most benefit;
  • Mandate timescales for submission of a request for EIA that take into account what can be achieved in that time for the types of cases that require EIA;
  • Set expectations for the papers to be submitted with a request for EIA; and
  • Require compliance with the guidance in all police forces.

We accept this recommendation.

The Sixth Edition of the Directors Guidance on Charging is currently in active development. It will contain a separate annex dealing specifically with early advice, and will include detail on how this should be dealt with in rape cases. We are engaging the police on the revision of this Guidance, nationally through the National Police Chiefs’ Council and locally with Chief Constables. We intend to publish in April 2020.

5.    CPS headquarters should provide national information on what data can be obtained from social media platforms, and Areas should tailor the national information to include what methods are used by their local forces, what they deliver and in what timeframe for different digital devices;

We accept this recommendation.

In July 2018 we published our Guidance on Communications Evidence and Reasonable Lines of Enquiry, which provided guidance to prosecutors and investigators on the national levels of data extraction. We recognise that more guidance can be provided on the policies and practices of social media companies and how they handle requests for material held on their platforms and we will provide this guidance. Each police force and CPS Area has a local disclosure improvement plan and they will provide information on local capability as a specific action.

6.    CPS Areas should work with their local forces to make better use of the many avenues for feedback between them, including providing accurate information on the quality of service each supply, making robust challenges, and seeking appropriate and timely information;

We accept this recommendation.

In addition to the work on the joint Case Progression improvements set out above we are reviewing the current national expectations for Prosecution Team Performance Management meetings, at which the local police and CPS meet to review performance, themes and trends on cases in order to ensure that they are fully effective.

7.    CPS Areas should engage with their local forces to identify key specific priorities for focused improvement activity, which should align with the targets for CPS and police internal assurance work;

We accept this recommendation.

We will develop local plans, based on shared data and objectives, which will be driven forward through new local performance management arrangements.

8.    CPS Areas should take urgent steps to ensure that, in rape and serious sexual offences, compliance with the timescales set out in the victim communication and liaison scheme and the standard of letters sent improve significantly;

We accept this recommendation.

We recognise the vital importance of timely and sensitive communication with victims, which helps every victim to understand our decisions in these complex cases. We agree we have much more to do to ensure we meet the quality standard expected.  

We have already reviewed current systems and identified changes required to our digital Case Management System to enable better identification of cases requiring letters to enable timescales to be monitored. These changes will be implemented in 2020.  

A new quality assurance process was implemented in August 2018. Chief Crown Prosecutors and Area Business Managers are responsible for ensuring quality of letters, and performance against quality standards will be reviewed as part of Area Performance Reviews.

Inspectorate’s issues to address for the CPS

1.    The CPS policy document should be updated to reflect the removal of the mandatory second opinion for cases where no further action is advised, and promulgated to Areas;

The report recognises that CPS Areas employ a variety of casework assurance processes, where obtaining a second opinion is only one option. Case reviews by RASSO Unit Heads and local case management panels may be more effective. We will consult on any proposed changes to our policy on rape prosecutions before changes are made.

2.    CPS headquarters should engage with police partners to develop a national file standard for the first submission of a rape case for a full Code test charging decision;

All files should accord with the National File Standard, but the report found that there were differing practices. We will work with the police to bring about consistency.

3.    Area managers should ensure that they instruct Counsel to give advice before charge only in those cases where it is justified by the complexity or seriousness of the case.

Historically, CPS Areas have instructed Counsel on an ad hoc basis to assist in progressing casework expeditiously where there are significant local delays. We recognise the disadvantages of this approach but it has been necessary to meet demand in the context of reduced resources. We anticipate that with additional funding we have secured we will have sufficient resources for this approach to no longer to be necessary.

Further reading