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CPS decision following a recent allegation of a sexual assault outside England and Wales

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Jenny Hopkins, the head of the CPS’ Special Crime and Counter Terrorism Division, said: “Sexual offences can have a devastating and lasting impact on victims, and the CPS will always prosecute cases where our legal test is met.

“The CPS has carefully reviewed evidence passed to us by the Metropolitan Police after a British woman reported being sexually assaulted earlier this year while working abroad. Possible charges of sexual assault and torture were considered.

“However, after thorough consideration, we have concluded that the evidence does not support a prosecution and will not be taking the case any further. We have explained our reasoning in detail and offered to meet the complainant to clarify any points.

“I understand this is not the outcome the complainant wanted, but the CPS must ensure that the law is properly applied, and make fair, objective and independent decisions in every case.”

Details of the case and the CPS’s decision making

When considering whether or not to take a case to court, we have clear procedures in place to make sure every case is handled appropriately. Prosecutors must apply the two stage legal test set out in the Code for Crown Prosecutors to firstly establish whether there is sufficient evidence to provide a realistic prospect of conviction against the suspect, and secondly whether a prosecution is required in the public interest. Both stages must be met for a prosecution to take place.

The CPS' function is not to decide whether a person is guilty of a criminal offence, but to make fair, independent and objective assessments about whether it is appropriate to present charges for the criminal court to consider. The CPS assessment of any case is not in any sense a finding of, or implication of, any guilt or criminal conduct. It is not a finding of fact, which can only be made by a court, but rather an assessment of what it might be possible to prove to a court, in accordance with the Code for Crown Prosecutors.

Allegation of sexual assault

Offence considered: Sexual Assault, contrary to the Sexual Offences Act 2003

Earlier this year a British woman reported allegations of a sexual assault against her by a foreign national while she was working abroad. The police referred the available evidence to the CPS and we have considered the specific circumstances under the Sexual Offences Act 2003. However, having considered section 72 of that Act, the CPS has concluded a prosecution is not possible because the alleged offence occurred outside England and Wales and the complainant was not under 18 years of age at the relevant time.

As a general rule, English courts only have jurisdiction over criminal offences which occur in England and Wales. There are some exceptions but they do not apply in this case.

Torture

Offence considered: Torture, contrary to section 134(1) of the Criminal Justice Act 1988

The CPS then considered an alternative offence of torture which would offer a route to prosecution in England. Torture is one of a small number of offences in relation to which the usual rules about jurisdiction do not apply and so the fact that the alleged offence occurred outside England and Wales does not prevent a prosecution in England.

In order to prove that torture has been committed under section 134(1) of the Criminal Justice Act 1988, the CPS would have to prove that:

  1. the person who committed the offence was a “public official”,
  2. that they “intentionally inflicted severe pain or suffering” on another person, and
  3. that they did so in “the performance or purported performance of their official duties”

While we were satisfied the suspect was a public official and the alleged sexual assault described would cause severe pain or suffering, our legal test was not met to prove that the suspect was acting or purporting to act in the performance of his official duties.

In reaching that conclusion we took into account the complainant’s belief that she was attending a meeting about work when she agreed to meet with the suspect. However, her understanding of the nature of the meeting is not sufficient by itself to prove that the suspect was purporting to act in the performance of his official duties. From the evidence, the suspect’s conduct in arranging the meeting and during the meeting suggest the contrary, that he considered this to be a social meeting and did not want to discuss work. In those circumstances we cannot prove an essential legal element, namely that the assault was committed in the purported performance of the suspect’s public duties and consequently amounts to torture.

On that basis, we concluded that our legal test is not met for a prosecution for any offences and have made the decision that no further action should be taken in this case. We have informed the complainant of her right to appeal the decision under the CPS’ Victims’ Right to Review scheme.

Further reading

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