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CPS says: Prosecuting rape - judicial review evidence

|News, Sexual offences

There have been a number of misleading and inaccurate reports about how rape is prosecuted by the CPS following coverage about the End Violence Against Women Coalition’s (EVAW) judicial review. We are concerned that these reports will deter victims from coming forward.

We want anybody affected by these horrendous, serious crimes to report them. Our skilled prosecutors are experienced, dedicated and highly-trained to make sure criminals can be brought to justice. Please be reassured that where the legal test is met - we will always prosecute.

We share the concern about the gap between reported rapes and those cases which come to court. But the recent judgement of the High Court on their judicial review claim was clear: there has been no change of approach in how CPS prosecutes rape. There is nothing new in the documents published today. The case was heard by a court including one of the most senior judges in the Court of Appeal, they saw every single piece of material that has been published and found no arguable basis for EVAW’s claims.

Despite this there are still claims the CPS has unlawfully changed its approach to rape cases by removing considerations of what is referred to as ‘the merits-based approach’. The court was clear that the full code test - the CPS’s legal test to bring a prosecution - has always included and still includes the merits-based approach. This was accepted by EVAW’s Counsel in the Judicial Review and it is misleading to continue to allege that the CPS has changed its approach on this basis.

This means a prosecutor must make an objective assessment of the evidence in every case, including the impact of any defence and any other information that the suspect has put forward or on which they might rely.  It means that an objective, impartial and reasonable jury or Bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.

This view is further supported by the findings of the independent inspectorate (HMCPSI). Their report, published last December, concluded that our legal test was correctly applied in 98 per cent of cases.

The High Court said that taking the material submitted on behalf of EVAW at its highest, their case could not properly succeed.

As part of this conclusion, they considered the 20 case summaries and found they did not support the claim. The brevity of these summaries does not adequately reflect the complexity of these cases. The vast majority of these charging decisions were re-examined by independent lawyers under the CPS Victim’s Right to Review Scheme who concluded there was no realistic prospect of conviction.

Lawyers who work in rape and serious sexual offences units are extensively trained. The court was satisfied the HMCPSI report contradicted unfair and misleading claims that there was a systemic and unacceptable risk that prosecutors wrongly applied the bookmaker’s approach or were risk averse.

The court also said that the expert evidence from Professor Adams was very carefully worded and did not give any conclusive view as to the question of causation. In her first report she indicated that there are other potentially relevant events relating to the significant fall in rates of charging and conviction in rape cases, which she admitted caused difficulties for her analysis.

Many of the grounds for appeal of the judgment have now been abandoned and EVAW themselves have acknowledged there was no unlawful application of the ‘bookmaker’s approach’ and that there is no significant and reliable evidence that the CPS did not apply the Code for Crown Prosecutors. The appeal now being pursued is more limited in scope and does not include those elements.

The Inspectorate Report found that there were some areas where improvements could be made to the way in which rape cases are handled. The CPS accepted the recommendations in full and is working closely with police colleagues to address these.

We hope that the High Court’s judgement and the HMCPSI report will provide some reassurance of our commitment to prosecuting these dreadful crimes.

The CPS is focusing on how, by working with partner agencies and stakeholders, we can continue to make progress on securing justice for everybody affected by sexual violence.

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