Consultation on rape and sexual offences legal guidance

Outcomes

Consultation on Rape and Serious Sexual Offences (RASSO) Legal Guidance - Summary of Responses

Contents

• Introduction
• Overview of the consultation
• Consideration of the consultation responses
• Comments received which were out of scope
• Annex A - Respondents

Introduction

This is a summary of responses to our public consultation on the RASSO Legal Guidance for prosecutors undertaken by the Crown Prosecution Service (CPS). The new interim legal guidance was published in October 2020 and consulted on for a period of 13 weeks, ending 18 January 2021¹.

The primary audience for this guidance is our RASSO prosecutors. The purpose of the consultation was to provide interested persons with an opportunity to provide comments and to ensure the final version of the legal guidance was informed by as wide a range of views as possible.

This summary provides:

1. An overview of the consultation;
2. Consideration of the consultation responses; and
3. Comments received which were out of scope.

We would like to thank everyone who took the time to consider the interim legal guidance and send in their views, which have been used to enhance the guidance.

1. Overview of the consultation

The consultation was published on the CPS website and widely publicised through:

• a press release alongside media interviews; 
• a series of Tweets;
• CPS stakeholder group workshops with our Violence Against Women and Girls (VAWG) External Consultation Group², the Judiciary, the Bar and the defence community and;
• publication of the consultation internally on the CPS intranet.

It is important to note that the purpose of the legal guidance is to be a clear, easily accessible, detailed document for use by prosecutors as a reference guide. The scope of the consultation was confined to the content of that legal guidance and its toolkits.

We received responses from 29 respondents in total. Within those responses, 250 substantive comments/points were raised for consideration. A breakdown of the source of the responses is at Annex A. The responses to each question were analysed separately and the main points were identified and carefully considered. Not every respondent gave specific answers to each individual question, but their views were still considered. This summary does not address every point made by respondents.

For the purposes of this summary, responses have been broken down into six categories of respondent: academia and learned societies; defence; private individuals; policing; public office holders; and victim support groups. The numbers of responses in each of the categories is set out in the table below:

2. Consideration of the consultation responses

This section provides a summary of the themes and issues raised in response to the consultation questions. We provide information on changes made to the legal guidance and feedback that was considered but did not result in a change.

Chapter 2 - Applying the Code for Crown Prosecutors to Rape and Serious Sexual Offences

The consultation asked two questions in relation to Chapter 2:

Question 1 - Do you think that the new guidance in Chapter 2: Applying the Code for Crown Prosecutors to Rape and Serious Sexual Offences in relation to the principles to consider when applying the evidential test will assist prosecutors in arriving at Code compliant charging decisions in RASSO cases?

Overall, responses to this question were positive. We received comments that this chapter was clear and helpful from ten respondents, including from policing, public office holders and victim support groups.

We made the following changes as a result of comments received:

• We have provided further balance in the language used in order to remind prosecutors of the need to consider a suspect’s account in interview as part of their consideration of all the evidence and when establishing what constitutes a reasonable line of enquiry.
• We have removed the following principle: ‘Prosecutors should be mindful that prosecuting flawed cases undermines public confidence, raises unrealistic expectations for complainants and diverts resources from other cases’.  We have removed it because, on reflection, it did not add to the guidance provided; its removal therefore avoids any perception of contradiction with other principles.
• We have now addressed disclosure in Chapter 2, by reminding prosecutors that obligations of disclosure must be complied with when applying the Code for Crown Prosecutors.

We carefully considered the following points which did not result in a change to our guidance:

• A minority of responses called for a reintroduction of the merits-based approach in the assessment of evidence. The principles of the merits-based approach are enshrined in the Code for Crown Prosecutors, which guides every charging decision. Moreover, we had taken relevant parts from the merits-based approach and added this into the guidance. In including this material, we consider that it provides helpful clarity for prosecutors on the application of the Code; to make it really clear we spell out that we do not carry out a ‘bookmaker’s test’ and stress that prosecutors must not allow rape myths and/or stereotypes to influence their evaluation of evidence. We have provided additional content to support prosecutors in the correct application of the Code test in RASSO cases - covering a range of key principles, including relevance and admissibility; and credibility, reliability and the approach to inconsistency.
• We received a response calling for the word ‘victim’ to be replaced with ‘complainant’. We have carefully reviewed this point and, in our view, we have used the words appropriately.
• We received a response that the guidance should make it clear that, when dealing with inconsistencies, a further statement may be taken from a complainant to clarify or explain. Although this may be sensible in the right case, this is likely to be applicable to such a small number of cases that it could cause confusion having this as a general principle in the guidance.
• We received a response calling for the removal of advice on the use of pre-trial witness interviews (PTWI). We have carefully reviewed this point and, in our view, prosecutors should be specially trained in their use. Furthermore, the concerns raised had previously been dismissed by the Attorney General at the inception of PTWIs in 2004, because their purpose is not to gather evidence, but where necessary to establish whether or not the witness’ evidence is reliable, accurate or complete – thus the prosecutor would not be acting as an investigator; and because the interests of justice in ensuring that a properly trained prosecutor is able to explore all necessary aspects of a witness’ evidence before reaching a prosecution decision outweigh the potential risks of coaching or contamination.
• We received a response suggesting that prosecutors must not allow rape myths and stereotypes to influence their assessment of witness credibility. This is already covered within the guidance, and so we have made no specific change to address this point.

Question 2 - Is the new content in Chapter 2: Applying the Code for Crown Prosecutors to Rape and Serious Sexual Offences around the impact of trauma including the linked online trauma training video accurate and comprehensive?

Overall, responses to this question were positive. We received comments that this content was accurate and comprehensive from fourteen respondents, including from academia and learned societies, defence, policing, public office holders and victim support groups.

After considering the comments, we have made changes to support our prosecutors further by making the section on the impact of trauma clearer, more concise and more practical. This includes clarifying the purpose of the guidance provided in decision-making and case-building. We have also signposted to other sources for further information, such as the psychological evidence toolkit, the training video, and the toolkit on cases of violence against women and girls (VAWG) involving vulnerable witnesses.

We received a response calling for inclusion of points around trauma associated with being falsely accused and wrongfully convicted. While we recognise the deep distress and upset caused by this, following careful consideration we have decided to not to make such changes to this guidance as they fall outside its scope, that is relating to the prosecution of rape and sexual offences cases based on the Code for Crown Prosecutors. Separate guidance on prosecuting allegedly false allegations is available on our website. That guidance already addresses the respondent’s comments.

Chapter 3 - Case Building

The consultation asked one question in relation to Chapter 3:

Question 3 - Will the updated content within chapter 3 covering reasonable lines of enquiry and disclosure covered at Sections D, E and F assist prosecutors with balancing the needs of the investigation and the right to privacy?

Overall, the responses were supportive regarding the balance, but areas for further review were identified.

We made the following changes as a result of comments received:

• We have clarified some of the language used within this section and made it more practical for use by our prosecutors, by giving clearer guidance on assessing what constitutes a reasonable line of enquiry in a case - including third-party material - and highlighting the need to consider any such lines raised by a suspect; and on addressing undermining third-party material. We have also linked this section to other parts of the guidance.
• We have provided more guidance to our prosecutors on taking an offender-centric approach.
• We have included guidance on digital communication data and included a section on pre-charge defence engagement.
• We have included additional information around digital downloads and guidance around circumstances in which a victim refuses to provide access to personal data.

We received a response calling for disclosure in rape and sexual offences cases to have its own separate chapter. While our consideration of this comment did not result in a change to the legal guidance, as there is no separate set of rules for disclosure in these cases and our linked disclosure guidance applies to all cases, we have strengthened disclosure and reasonable lines of enquiry within this guidance.

Chapter 4 and Annex A - Myths and Stereotypes

The consultation asked three questions on Chapter 4 and Annex A: 

Question 4 - Is the revised content on ‘rape myths and stereotypes’ (chapter 4) accurate and comprehensive and do you think it will assist prosecutors in making decisions which are not clouded by myths or stereotypes?

Question 5 - Does the revised content adequately cover the development of rape myths in the digital age?

Question 6 - Does the revised content clearly highlight the tools available to prosecutors and advocates when challenging rape myths?

Overall, the responses were very positive, expressing support for the accuracy and comprehensiveness of this chapter and the Annex. 

We made the following changes as a result of comments received:

• We have amended the title of this chapter, described its purpose and provided a definition of what is meant by myths and stereotypes. 
• We have made the reference to Annex A more prominent and identifiable in the main body of the legal guidance. Within Annex A, we have made some of the myths clearer and removed any unintended implications. For example, we included the following myth in the interim legal guidance: ‘Rape occurs between strangers in dark alleys - False’. On reflection, that implied rape never occurs between strangers in dark alleys. We have amended it so that it now reads: ‘Rape most commonly occurs between strangers in dark alleys - False’, recognising that stranger rape does occur. This myth is now clearer, in that it highlights the majority of rape does not fall within this definition but rather is between persons known to each other.
• We have made clearer links between the guidance provided within Annex A with other parts of the guidance, including the chapter on issues relevant to particular groups of people. We have also incorporated hyperlinks to the section on myths and stereotypes in other relevant chapters of the legal guidance.
• We have removed the hyperlink to the factsheet on rape. The key audience for the factsheet is the general public, including victims of rape and sexual abuse. We will therefore incorporate the content of this factsheet within the CPS’s new Rape Public Policy Statement.

We carefully considered the following points, which did not result in a change to our guidance:

• Some responses requested additional information about myths and stereotypes in the digital age and changes in sexual behaviours and encounters. These are outlined in Chapter 4 and Annex A; however, it is important to note that advice to prosecutors is also supported by learning and development, and tools to increase awareness and understanding, as society and technology changes and develops. 
• We received some responses supporting the content within Annex A and requesting it be incorporated within the main body of the guidance. Following careful consideration, Annex A remains separate in order to prioritise accessibility and usability for prosecutors as a reference guide. 
• We received a minority of responses that did not support the approach to myths and stereotypes, stating that it was prejudicial against males. This section has been carefully considered and is gender sensitive throughout - information around a particular sex is only provided if it is particularly relevant to understand and challenge a myth or stereotype.
• We received a response requesting the inclusion of advice on false allegations within the overarching guidance. It was not possible to draw out one myth and stereotype at the expense of others. Instead, detailed information is provided within Annex A.
• We received a response requesting the inclusion of information about what constitutes a reasonable line of enquiry when considering digital material. Disclosure rules apply to all cases, not specifically to rape and sexual offences. Advice on disclosure and reasonable lines of enquiry is provided throughout the legal guidance to prosecutors.

Chapter 5 - Issues relevant to particular groups of people and the same-sex sexual violence toolkit

The consultation asked three questions on Chapter 5 and the same-sex sexual violence toolkit:

Question 7 - Is the content covering ‘pre-existing mental illness and potential psychological reactions to sexual abuse’ (chapter 5) including the linked ‘psychological evidence toolkit for prosecutors’ accurate and comprehensive?

Question 8 - Is the content of the ‘same-sex sexual violence toolkit’ accurate and comprehensive?

Question 9 - Is the content in relation to the additional parts of this chapter accurate and comprehensive?

Overall, the responses were positive, welcoming this content and its comprehensiveness.

We made the following changes as a result of comments received:

• We have amended some of the language in Chapter 5 and the same-sex toolkit, highlighted the importance of considering intersectionality, and emphasised that the list of groups of people is non-exhaustive. 
• With the assistance of expert groups, we have drafted additional guidance covering LGBT+, trans and non-binary victims; and Gypsy, Roma and traveller victims.

We carefully considered the following points, which did not result in a change to our guidance:

• We received a response suggesting that the psychological evidence toolkit should mention female abusers. This is already covered in the guidance.
• We received a response requesting that intersectionality and protected characteristics are referenced not just within Chapter 5, but throughout all the chapters. This is already covered in the guidance.
• We received a response calling for the addition of a section relating to abusers who are in a position of trust. This is already covered in the guidance.

General/other

The consultation asked one question in relation to general/other feedback:

Question 10 - Do you have any other feedback you wish to share around how the revised guidance could be improved?

We made the following changes as a result of comments received:

• We have rewritten and expanded the section on Independent Sexual Violence Advisors (ISVAs) in Chapter 11, adding links to practical, relevant further information.

We carefully considered the following points which did not result in a change to our guidance:

• We received some responses requesting that we update the information regarding false allegations of rape. Following review, this is in our view adequately covered within the guidance, which links to other specific guidance on this topic.
• We received a few responses calling for the guidance to be shortened and simplified. Given that it is primarily for our prosecutors, we have prioritised the guidance’s comprehensiveness and usability as a detailed reference guide, striking the right balance between that and accessibility.
• We received a response calling for the addition of a statement highlighting the importance of considering electronic devices and social media belonging to complainants as well as suspects. This is already covered in the guidance.
• We received a response suggesting that the guidance be reviewed to ensure that the message is conveyed for prosecutors to critically assess the complainant’s account in their application of the Code for Crown Prosecutors. The terminology has been carefully considered. We have received many positive comments about the balance of the language and have ensured that we have been as objective as possible. 

3. Comments received which were out of scope

We received a number of points - representing 17.1% (43 out of 251 responses) of comments received in overall responses - which related to issues outside the scope of the consultation. In summary:

• Most comments that fell out of scope of this consultation related to the way in which prosecutors apply this legal guidance, which is being addressed through a significant programme of work on learning and development.
• A number of comments falling out of scope of this consultation related to work which we are taking forward with the police on our Joint National Action Plan (JNAP) on improving rape investigations and prosecutions, including comments on improved communication and engagement with victims, which is a core theme in the Plan.
• We also received a number of comments related to changes in law, which is a matter for Parliament.
• We received a couple of comments on the consultation process itself - including one seeking clarity as to amendments in the guidance. We provided access to the full, amended guidance and our questions focused on the key chapters and sections that had been amended. We also summarised the key changes in our stakeholder group workshops. The consultation was live for 13 weeks and promoted publicly and with key stakeholders.

Annex A – Respondents

• Barnett Survivors Ltd 
• Claire Waxman, London Victims’ Commissioner 
• CPS East Midlands Violence Against Women & Girls (VAWG) Scrutiny Panel
• Criminal Bar Association 
• Dame Vera Baird QC, Victims’ Commissioner 
• Dr Heather Flowe, University of Birmingham 
• False Allegations Support Organisation (FASO) UK 
• Galop 
• Gwent Violence Against Women, Domestic Abuse, Sexual Violence (VAWDASV) Partnership Board
• Information Commissioner’s Office (ICO) 
• Kingsley Napley 
• Merseyside Police and Crime Commissioner 
• Norfolk Constabulary 
• Northumbria Police and Crime Commissioner 
• Notts Sexual Violence Support (SVS) Services 
• Prof Laura Hoyano, University of Oxford, on behalf of the Coeus Legal Research Group into Sexual and Domestic Violence 
• Progressing Prisoners Maintaining Innocence (PPMI) 
• Rape and Sexual Abuse Support (RASA) Merseyside 
• Rape Crisis England & Wales (RCEW) South West Grid for Learning (SWGfL) 
• Rape or Sexual Abuse (RoSA) Support
• SafeLives 
• Sentencing Council 
• Suzy Lamplugh Trust
• SV2 
• Two private individuals 
• Welsh Women’s Aid 
• West Yorkshire Police

Published 21 May 2021