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Rape and Sexual Offences - Chapter 3: Case Building

This guidance is currently out for consultation - see sidebar|Legal Guidance, Sexual offences

PLEASE NOTE - INTERIM GUIDANCE: APPLIES FROM 1 NOVEMBER 2020

Early Advice ("EA")

In accordance with Protocol between the Police Service and Crown Prosecution Service in the Investigation and Prosecution of Rape the provision of early advice is strongly recommended in rape or other serious sexual offences.

Prosecutors may advise the police and other investigators about

  • Possible reasonable lines of inquiry;
  • Potential charges;
  • Evidential requirements;
  • Pre-charge procedures;
  • Disclosure management;
  • Asset recovery, including the overall financial strategy;
  • The overall investigation strategy, including whether to refine or narrow the scope of the criminal conduct and the number of suspects under investigation;
  • Legal elements of offences.

Advice may be sought before a charging decision is requested or may be given as part of the charging process. Where advice is given prior to a request for a charging decision it is regarded as “early advice”. Any later consultation and advice, beyond the charging stage, takes place as part of the continuous engagement process that is expected between the police and the prosecutor in an ongoing prosecution.

Investigators must consider seeking early advice in serious, sensitive, or complex cases. Cases involving a death, rape, or other serious sexual offence should always be considered for early referral and, in particular, once a suspect has been identified and it appears that continuing investigation will provide evidence upon which a charging decision may be made.

Failing to seek early advice may impact on the ability of the prosecutor to make an immediate, effective charging decision through the absence of important material or information.

The timing of the request for early advice is a matter for the investigating officer. It should usually follow a police supervisory review at the point of the investigation where the key evidence is understood, even if not fully developed, and the issues in the case have been identified. It is impossible to be prescriptive about when this stage will be reached as it will vary from case to case.

All requests for early advice should be subject to a police supervisory procedure outlined under the RASSO Service Standards section.

Investigators and supervisors should have regard to any specific protocols relating to the referral of cases to CPS Central Casework Divisions which may make specific provision about the timing of requests for early advice and the material to be supplied.

Where a case is referred for early advice, the police should submit a formal request for advice.

All referrals must contain the prescribed minimum information and be submitted through the digital interface between the police and CPS, where available and used by the police.

Requests for early advice must be distinguished from requests for a charging decision where the scope of the material required will be greater.

Prosecutors will assess all requests for prosecution advice to determine whether CPS advice is necessary, and whether the timing is appropriate. If the prosecutor rejects a request to advise, this decision will be recorded and communicated to the police.  A police officer of the rank of Inspector or above can appeal that rejection in accordance with the appeals process.

It is not a prerequisite for the provision of advice that all the available material should be provided, but rather that there is sufficient for prosecutors to understand the known facts and issues so that they may provide advice that is relevant and meaningful to the investigation. A prosecutor may, however, determine that specific further information or evidential material is required before advice can be given. The prosecutor will record, as part of their advice, their reasons for any such request and share them with the police. A prosecutor may also determine that not all the information highlighted in bold is required.

Prosecutors will record and share their advice with the police supported, where appropriate, by a shared action plan.

Where, following early advice and further investigation, the police are of the opinion that there is no realistic prospect of conviction on evidential grounds; the police will inform the CPS of this decision. The responsibility for the decision to take no further action on evidential grounds will lie with the police.

If the evidential stage is met in respect of an offence which must be referred to the CPS for a charging decision, the case must be so referred even if the police propose taking no further action on public interest grounds.

Where, following early advice and further investigation, the police are of the opinion that the Code Test is not met for the prosecution of any offence where a prosecutor’s authority would be required, but is met for an offence which can otherwise be charged by the Police under this Guidance, the police may make that decision.

The RASSO Service Standards

RASSO prosecutors play a key role in minimising the delays incurred during the pre-charge investigation stage. Such delays have the potential to cause considerable distress to both complainants and suspects. The enactment of the Policing and Crime Act 2017 on 3rd April 2017, which introduced new time limits on police bail, served to further highlight the importance of prosecutors working closely with police partners to ensure the efficient progression of RASSO investigations. The RASSO Service Standards set out best practice for the management of pre-charge bail cases which RASSO units should adopt with local police partners with a view to raising standards in this area.

Standard 1: File Referral and Quality - Early Advice (EA)

  1. All requests for early advice should be subject to a police supervisory procedure that provides assurance that:
    • the advice is necessary;
    • the timing is appropriate;
    • the relevant supporting material is supplied;
    • there is potential for the Full Code Test to be met, based on the evidence obtained thus far.
  2. Where the police seek EA the file will consist of:
    • Unique Reference Number (URN);
    • Factual summary;
    • The lines of inquiry pursued, ongoing, or contemplated;
    • Based on the evidence currently available, the anticipated results of any ongoing and contemplated inquiries;
    • The issues already identified in the case, including any explanation provided by the suspect;
    • The specific matters upon which advice is sought;
    • Any key evidential material that is available that will facilitate the relevant advice e.g. ABE interview, note of suspect interview.
    • Any potentially disclosable material

Standard 2: File Referral and Quality – Charging decision

  1. In every case submitted to the CPS a police supervisor will record a review of the evidence and confirm that the investigation is complete, or the extent to which any aspect remains outstanding, and that there is a realistic prospect of conviction.
  2. Any file submitted to the CPS for charging decision will comply with the requirements set out in Section 10.5 of the Protocol between the Police Service and Crown Prosecution Service in the Investigation and Prosecution of Rape, PACE provisions and any other items requested by a prosecutor during the course of the investigation e.g. through application of the RASSO pre-charge checklist. Files not meeting this standard will be rejected.
  3. Areas will administratively triage cases submitted for a charging decision and will reject those that do not meet the required file standard. These cases will not require tracking until they are compliant and have been re-submitted. File quality issues should be captured and shared with police through joint performance discussions to achieve continuous improvement.

Standard 3: Timeliness of CPS advice (returns to police within 28 days) and related escalation procedure

  1. A RASSO prosecutor will provide a charging decision or an action plan to the officer in the case within 28 days of the initial submission or re-submission of a compliant file.
  2. Where the CPS prosecutor has not provided advice to the police within 28 days of the initial submission or re-submission of a compliant file, the case must be referred to the RASSO Unit Head for action.
  3. Where the CPS prosecutor has not provided advice to the police within 56 days of the initial submission or re-submission of a compliant file the case should be referred to a Deputy Chief Crown Prosecutor for action.
  4. Where the CPS prosecutor has not provided advice to the police within 84 days of the initial submission or re-submission of a compliant file the case should be referred to the Chief Crown Prosecutor for action.

Standard 4: Setting agreed timescales for the police investigation and related escalation procedure

  1. Where the CPS prosecutor sets an action plan for the police, realistic timescales for completion of the action plan must be agreed.
  2. The officer in the case will re-submit a file within the agreed timescale having completed all work set out in the action plan, or notify the CPS that the case has been NFA’d. Where the police confirm the case has been NFA’d a note should be added to the case on CMS by the casework assistant and the case finalised.
  3. Where it subsequently becomes clear to the officer in the case that the agreed timescales are no longer achievable, the officer in the case will contact the CPS prosecutor so that revised timescales can be agreed and CMS suitably updated.
  4. Where a file has not been resubmitted to the CPS by the agreed return date the RASSO Case Progression Manager will send a written message to the officer in the case (cc’d to the supervising officer), which: 1) highlights the expiry of the agreed action plan timescale; 2) requests confirmation as to whether the investigation remains live or has been NFA’d and; 3) if the investigation remains live, requests that the OIC makes contact with the allocated RASSO prosecutor to address non-compliance and, if appropriate, agree revised timescales.
  5. Where no response is received from the police within 28 days of the request being made the RASSO Unit Head will repeat the written request, cc’d to the supervising officer (correspondence to be prepared by the Case Progression Manager) noting the non-compliance.
  6. Where no response is received from the police within another 28 days (56 days after the original request) the RASSO Unit Head will further repeat the written request, cc’d to the supervising officer and Detective Chief Inspector, but on this occasion the police will be further advised that a failure to resubmit the case within 28 days will result in the CPS closing the case as ‘admin finalised’ (correspondence to be prepared by the Case Progression Manager).
  7. Where no response is received from the police within another 28 days (84 days after the original request) the case should be ‘admin finalised’ and the police notified, including the supervising officer (correspondence to be prepared by the Case Progression Manager).

Standard 5: Timeliness of Charge and related escalation procedure

  1. Once a full code test decision has been given by CPS in bail cases, the police will charge the suspect or requisition/summons them as soon as practicable.
  2. A case that is not charged, requisitioned or summonsed in accordance with Standard 5(i) on CMS will be escalated by the Case Progression Manager to the relevant police supervisor. Where appropriate to do so, the RASSO DCP will also refer cases which have not been charged by any follow up date on CMS, to the DCCP.

Standard 6: Continuous improvement and performance review

  1. Regular reviews of performance on charging should be conducted at monthly PTPM meetings, led by the RASSO Unit Head and/or DCCP. These meetings should, incorporate performance against the Service Standards, scrutiny of charging caseloads, best practice and lessons learned, with a clear focus on continuous improvement. These may be convened on an Area-wide basis, if deemed helpful.
  2. In advance of these meetings, the CPS should provide a full list of cases which sit with the police awaiting resubmission, the relevant timescales and a list of all cases which have been ‘admin finalised’.
  3. The management of RASSO workloads and backlogs should be a standing agenda item at LCJB meetings and the volume of cases awaiting resubmission and ‘admin finalised’ should be shared.

Offender-centric approach

An effective strategy for investigating and prosecuting rape requires focus on the actions of, and tactics used by suspects and not just the behaviour of the complainant. Prosecutors must therefore encourage investigators to take an offender-centric approach to case building which involves looking closely at the actions of the suspect both before, during and after the alleged assault.  Prosecutors should consult the vulnerable victims toolkit which highlight common types of offender tactics and behaviours.

Reasonable lines of enquiry

The Attorney General’s Disclosure Guidelines make it clear that a fair investigation involves the pursuit of material following all reasonable lines of enquiry, whether they point towards or away from the suspect. What is ‘reasonable’ will depend on the context of the case. A fair investigation does not mean an endless investigation: investigators and disclosure officers must give thought to defining, and thereby limiting, the scope of their investigations, seeking the guidance of the prosecutor where appropriate.

Prosecutors should advise the investigator if there appears to be additional reasonable, proportionate and relevant lines of further enquiry that should be pursued. They should also ensure that any account given by the suspect has been investigated and challenge any explanation given for lines of enquiry that were not followed up. It is essential that wherever possible disclosure issues are addressed at the pre-charge stage and that disclosure is approached by both investigator and prosecutor through the exercise of judgement, crucially as to what should be considered a reasonable line of enquiry.

Reasonable lines of enquiry involving digital communication data

The pursuit of reasonable lines of enquiry will often include obtaining and analysing communication data originating from devices belonging to the suspect, the complainant, and, on occasion, third parties.

In the case of R v E [2018] EWCA Crim 2426, the President of the Queen’s Bench Division endorsed key CPS guidance ‘Guidelines on Communication Evidence’ and ‘A Guide to “reasonable lines of enquiry” and Communications Evidence’. This approach was endorsed and developed in R v Bater-James [2020] EWCA Crim 790, in which the Court of Appeal identified four principles relevant when reviewing a reasonable line of enquiry. Whilst these principles apply to all types of material, they are especially relevant in cases involving large quantities of digital data.

Principle One: Digital material should only be reviewed in pursuit of a reasonable line of enquiry and material should only be disclosed if it meets the disclosure test

There is no presumption that a complainant or witness's mobile telephone or other devices should be inspected, retained or downloaded, any more than there is a presumption that investigators will attempt to look through all material held in hard copy. There must be a properly identifiable foundation for the interrogation, not mere conjecture or speculation. Where digital material is obtained, disclosure should only occur when it meets the disclosure test.

Principle Two: A review should be proportionate and should not involve a review of wholly irrelevant material

If there is a reasonable line of enquiry, the investigators should consider whether the digital material can be reviewed without taking possession of the device. If a more extensive enquiry is necessary, the contents of the device should be downloaded with the minimum inconvenience to the complainant and, if possible, returned without any unnecessary delay. When reviewing the digital material, the investigator should also consider whether it is sufficient to view limited categories of data, such as an identified string of messages/emails or a limited period.

Principle Three: The witness/complainant should be kept informed

The witness/complainant should be told that the prosecution will keep them informed as to any decisions that are made as to disclosure, including how long the investigators will keep the device; what it is planned to be "extracted" from it by copying; and what thereafter is to be "examined", potentially leading to disclosure. They should also be told that in any event, any content within the mobile telephone or other device will only be copied or inspected if there is no other appropriate method of discharging the prosecution's disclosure obligations and material will only be provided to the defence if it meets the strict test for disclosure and suitably redacted.

Principle Four: The prosecutor and investigator should consider the consequences of refusal

If a witness does not provide the investigator access to their mobile telephone or other device, the investigator should consider the circumstances and furnish the witness with an explanation as to the procedure that will be followed if the device is made available. If they continue to refuse, consideration should also be given to whether it is appropriate to apply for a witness summons for the mobile telephone or other device to be produced.

Where the material is not provided or is deleted, the court may need to consider, if an application is made by the defendant, whether the proceedings should be stayed on the basis that it will be impossible to give the accused a fair trial. A highly relevant or determinative consideration will be the adequacy of the trial process, and whether it will ensure there is fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions. This situation is analogous to the cases in which there is a complaint that the prosecution failed to secure relevant evidence or evidence has been lost.

Further guidance can be found in the Attorney General’s Disclosure Guidelines, the CPS’s Guidance on Communication Evidence and the Director of Public Prosecution’s Guide to Reasonable Lines of Enquiry and Communications Evidence.

Reasonable lines of enquiry in cases involving large quantities of material

RASSO cases can involve large quantities of material. An investigator is expected to pursue reasonable lines of enquiry when reviewing the material. That does not mean an investigator must scrutinise every piece of material. A thinking approach is crucial; consideration must be given to what is reasonable and proportionate. The prosecutor and investigator should work together to formulate strategies by which to pursue reasonable lines of enquiry. This will involve developing a strategy that identifies how material will be searched or analysed to identify relevant categories of material. A record should be made of the strategy, the techniques used and the evidence identified as a result.

The complexity of digital disclosure is such that it may be necessary to use specialist software or tools to undertake searches. In R v Bater-James [2020] EWCA Crim 790, the Court of Appeal recognised that in such cases, it is perfectly proper for the investigator/disclosure officer to search it by sample, key words, or other appropriate search tools or analytical techniques to locate relevant passages, phrases and identifiers. In such cases, the investigator will develop a strategy setting out how the material should be analysed or searched to identify categories of data. The ambit of the review of the unused material and the details of proposed search terms or the parameters of any searches will be set out in the Prosecution Disclosure Management Document ["DMD"]. 

In its 2020 report on the extraction of mobile phone data, the Information Commissioner’s Office also approved the use of search terms and stressed the importance of establishing clear policies when determining the parameters of any search. The Disclosure Manual and the Attorney General’s Guidelines on Disclosure emphasises that in principle, the following information must be recorded:

  1. The line of enquiry that is being pursued
  2. The justification for the strict necessity and proportionality of the review
  3. The lawful basis of the search/extraction/analysis.
  4. Consideration of the level of collateral intrusion and steps being taken to mitigate it
  5. A record of all searches/extraction/analysis carried out, including the date of the search, the person responsible for undertaking the search and the person responsible for authorising it.
  6. A record of the search terms used. Where it is impractical to record each word or term (such as when Boolean searches or search strings or conceptual searches are used) it will usually be sufficient to record each category of search
  7. A log of key judgements should be made when refining the search strategy.
  8. Where material relating to a “match” is not examined, a record of the reasons for deciding against undertaking an examination.

Where possible, defence engagement should be sought early. The purpose of this dialogue is to ensure that reasonable and proportionate searches can be carried out. As the Court of Appeal emphasised in R v R [2015] EWCA Crim 1941, the defence are expected to provide early and meaningful engagement. They are expected to play their part in defining the real issues in the case, and this should be addressed in the DMD. The defence statement is also an essential tool in case managing issues of digital disclosure. A defence statement that fails to identify the issues should be rejected and failure to comply must be reported to the court. If search terms are suggested which the investigator or prosecutor believes will not be productive, the investigator or prosecutor is entitled to open a dialogue with the defence representative with a view to agreeing sensible refinements.

The complainant’s right to privacy

It is of vital importance that the personal information of complainants who report sexual offences is treated in a way that is consistent with both their right to privacy and with the interests of justice. CPS guidance is clear that requests for access to information held by third parties such as counselling records or on digital devices must be a reasonable line of enquiry, justified by the circumstances of the individual case. It should not be undertaken routinely in every case.

“Victims do not waive… their right to privacy under article 8 of the ECHR, by making a complaint against the accused. The court, as a public authority, must ensure that any interference with the right to privacy under article 8 is in accordance with the law, and is necessary in pursuit of a legitimate public interest” (Judicial Protocol on the Disclosure of Unused Material in Criminal Cases)

Whilst the right to a fair trial is an absolute right, a complainant or witness’s right to privacy and the protection of their personal date must be carefully considered. RASSO cases, especially cases involving large quantities of digital data, are likely to involve material that includes intimate details of the private lives of the complainant, witnesses and third parties. Such material should only be sought if it amounts to a reasonable line of enquiry. The investigator should satisfy themselves that that the extraction of any data is lawful and complies with the relevant data protection legislation. Similarly, they should only undertake a review of the material where it constitutes a reasonable line of enquiry. Neither prosecutors nor investigators should seek to obtain as much material as possible. Instead, prosecutors and investigators should satisfy themselves that the material amounts to a reasonable line of enquiry before undertaking a review. In other words, it must be evident that the information sought is likely to be relevant based on what is known at that stage of the case.

Moreover, the investigator must also provide detailed information to the complainant or witness, setting out the material that is being sought, the lawful basis and their rights. Meaningful engagement can reduce the anxiety caused and provide reassurance.

Material held by third parties

In the context of a RASSO investigation, third party material that is commonly encountered includes:

  • Social services departments
  • Forensic Physicians
  • Counsellors/therapists
  • Schools
  • Medical Practitioners
  • Hospitals
  • Family Court
  • Owners of CCTV

An investigator is still under an obligation to pursue reasonable lines of enquiry and should consider whether such material exists that may be relevant to the case. If so, reasonable steps should be taken to secure and consider the material. It is important not to make speculative enquiries, but frequently the existence of the material will be known or can be deduced from the circumstances. For example, where a child witness is in the care of the local authority, the social services may have relevant material e.g. material going to the credibility of the witness or records of interviews with the witness that are likely to have touched on the subject matter of the investigation, but it is important that any requests are relevant and proportionate.

In R v Alibhai [2004] EWCA Crim 681, the Court of Appeal held that before taking steps to obtain third party material, it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test.

Furthermore, R v Alibhai states that even if there is the necessary suspicion, the prosecutor has a "margin of consideration" as to what steps to take in any particular case and was not thus under an absolute obligation to obtain material that was suspected to satisfy the disclosure test.

Obtaining Third Party Material

If the police believe that a third party holds material that may be relevant to the investigation, that person or body should be told of the investigation. They should be alerted to the need to preserve relevant material.

The Joint Protocol between the Crown Prosecution Service and the Police on dealing with Third Party Material sets out the arrangement in respect of the investigation, institution and prosecution of offences in which there is third party material and sets out the relevant duties and functions of the prosecutor, investigator and disclosure officer. It creates a standardised approach to the making of requests to third parties and sets out the letter to be used to make requests, a pro-forma reply, an index of materials requested and a viewing log of material inspected.

In cases involving children, the prosecutor and investigator should consider the 2013 Protocol and Good Practice Model on Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Directions Hearings, which provides the framework for the police and CPS to obtain disclosable material from local authorities.

A third party has no obligation under CPIA to reveal material to the police or to the prosecutor. Moreover, there is no duty on the third party to retain material which may be relevant to the investigation. Indeed, in some circumstances, the third party may not be aware of the investigation or prosecution.

In many cases, the material will be sought by requesting the consent of the complainant/witness. When obtaining such consent, the investigator must explain the reason for seeking the material and make clear that it may be disclosed to the defence. The complainant/witness’s response must be recorded and communicated to the prosecutor. It must also be recorded on the relevant disclosure schedule. Maintaining the complainant/witness’s trust is essential and it should be made clear to them that the decision to disclose may eventually rest with a prosecutor.

Where access to the material is declined or refused, the prosecutor should consider whether a prosecution can proceed. The complainant/witness should be told of the possible consequence of refusing consent. However, both the prosecutor and investigator should consider whether there are other routes to obtaining the material. The investigator may consider making an application under Schedule 1 to the Police and Criminal Evidence Act 1984. The investigator may seek advice from the prosecutor before such an application is made. Alternatively, a prosecutor may consider it appropriate to make an application for a witness summons. An application should only be made if the conditions set out in section 97 of the Magistrates’ Court Act 1980 or the Criminal Procedure (Attendance of Witnesses) Act 1965 are met.

Part 17 Criminal Procedure Rules 2020 sets out the procedure to be adopted in applying for a witness summons. It applies to both prosecution and defence applications. Rule 17.5 covers applications for witness summonses requiring the proposed witness to produce in evidence a document or thing or to give evidence about information apparently held in confidence that relates to another person. (e.g. application for summons for Local Authority to produce medical records relating to the complainant). It requires the court to consider the rights of those to whom confidential information or documents relate before a witness can be required to give evidence about them. Rule 17.5(3) states that the application for a witness summons must, where the Court directs, be served on the person to whom the document relates (i.e. the patient in the case of medical records).

This is designed to overcome the difficulties outlined in R (oao B) v Stafford Crown Court [2006] EWHC 1645. In that case the Divisional Court held that the medical records of a complainant (a prosecution witness in a sexual case) were confidential between medical practitioners and patient. A patient had a right of privacy under article 8 of the ECHR. It was not sufficient for the court to delegate her representations to the person in possession of the documents, i.e. the NHS trust alone. Procedural fairness required that the complainant should have been given notice of the application and the opportunity to make representations, orally if she wished, before the witness summons order was made.

Reviewing Third Party Material

The third party will identify whether the material is sensitive or non-sensitive. The investigator should ensure that this is done before the material has been provided and that the investigator and prosecutor agree with the assessment of the third party. Non-sensitive third party material that is relevant to the case will be described on an MG6C and described with sufficient detail. Sensitive material should be recorded on a MG6D. The investigator must produce a sufficiently detailed description to allow for a prosecutor to understand why disclosure would give rise to a real risk of serious prejudice to an important public interest. Where a document contains both sensitive and non-sensitive material, the investigator should provide a redacted copy, which can be summarised on the MG6C, and an unredacted copy, which is recorded on the MG6D. It is for the disclosure officer or investigator to edit the material.

As with other material, prosecutors should have regard to whether it strengthens the case or meets the test for disclosure. However, prosecutors should guard against looking for 'corroboration' of the complainant's account or using the lack of 'corroboration' as a reason not to proceed with a case. Instead, the prosecutor should consider:

  1. The nature of the case against the accused;
  2. The essential elements of the offence alleged;
  3. The evidence upon which the prosecution relies;
  4. Any explanation offered by the accused, whether in formal interview, defence statement or otherwise; and
  5. What material or information has already been disclosed.

Examples of material that may weaken a prosecution case includes:

  1. Material that casts doubt upon the accuracy of a prosecution witness;
  2. Material that casts doubt upon the reliability of a confession;
  3. Material that undermines the credibility of a prosecution witness;
  4. Material that might assist the accused to cross-examine a prosecution witness;
  5. Material that may support a defence that is being raised or that may be apparent from the papers;
  6. Material that may support a submission of no case to answer, a submission to stay proceedings as an abuse of process or an application to exclude prosecution evidence.

Children or young people who have been in the care of, or have come to the attention of, social services will inevitably have a great deal of information about them contained within social services records compared to other children or young people. Every episode of 'bad' behaviour, even of the most minor nature, is likely to be a matter of record. Most children misbehave; but not every child has their misbehaviour recorded. Complainants who are, or have been, in the care of the social services should not be disadvantaged in the criminal process by this fact, and prosecutors should be prepared to address this issue as part of the presentation of the prosecution case. The prosecutor must adopt a thinking approach when reviewing the material and maintain a flexible approach and consider whether the material is actually capable of meeting the disclosure test.

Disclosing Third Party Material

The disclosure of records held by a third party will likely engage the complainant/witness’s article 8 right to privacy. Before any disclosure takes place, the third party and the complainant/witness should be informed of the intended disclosure. The prosecutor should satisfy themselves that the complainant/witness has consented to the disclosure.

If consent to disclosure is refused (or the material is sensitive and disclosure would create a real risk of serious prejudice to an important public interest), the prosecutor should consider whether it is appropriate to make an application for non-disclosure on the basis of Public Interest Immunity. Following R v H and C [2004][ UKHL 3, PII applications should be made when:

  1. The prosecutor has identified material that meets the disclosure test but disclosure would create a real risk of serious prejudice to an important public interest and the prosecutor believes that the public interest in withholding it outweighs the public interest in disclosing it to the defence.
  2. The above condition is not met, but the police, other agencies or investigators, after consultation at a senior level, do not accept the prosecutor’s assessment.
  3. In exceptional circumstances, the prosecutor has pursued all enquiries and is still unable to determine wither the material satisfies the disclosure test and seeks the guidance from the court.

Further guidance can be found in the Disclosure Manual.

The Disclosure Management Document (DMD)

Completion of a Disclosure Management Document (DMD) is mandatory in all RASSO cases. It is completed by the prosecutor working in partnership with the Disclosure Officer. The Disclosure Officer is required to set out what has been considered a reasonable line of enquiry within the advice request submitted to the CPS. If further work is required, it must be detailed in the Pre-Charge Action Plan. There will be some simple and straightforward cases in which the document can very briefly and succinctly deal with the issues and other cases where a much more detailed analysis of the approach that has been taken to unused material will be required.

The DMD is a living document and should be started by allocated prosecutors at the very outset of the case, including where EIA is sought. It is essential that disclosure issues are addressed pre charge where possible and that disclosure is approached by both investigator and prosecutor through the exercise of judgement (the “thinking approach”) and not simply as a schedule completing exercise. The DMD should clearly identify what has been considered to be a reasonable line of enquiry in the case and why, together with an explanation of how all seized electronic material has been dealt with.

  • Where the case is charged by CPSD, consideration of these issues should be set out in the advice to police and appropriate actions recorded in the action plan.
  • The DMD should be made available to the defence and judiciary prior to the PTPH, even though initial disclosure may not have been completed at that stage. It provides the defence with an opportunity to engage with the process by challenging the approach taken by the prosecution and suggesting alternative or additional enquiries. By being transparent from the outset any issues raised about the prosecution approach to disclosure can be discussed and crystallised with the defence and judiciary at an early stage. This will also enable the Judge to robustly manage the case from the outset.

Family Court proceedings

In cases where the family is known to social services or there are linked family and criminal proceedings then the police should follow the 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal care directions hearings.

In accordance with paragraph 11.1 of the Protocol the CPS will only make applications after the service of papers pursuant to Section 51 of the Crime and Disorder Act 1998. Any application prior to this will be made by the police. The Form C2 needs to be completed when making an application for disclosure of material relating to family proceedings. See here for guidance on applications.

If an alleged abuser were to incriminate himself/herself during the course of the family proceedings they would have the benefit of protection from prosecution by virtue of section 98(2) of the Children Act 1989, whereby a statement or admission made in such proceedings is not admissible against the person making it or his spouse in criminal proceedings (other than for an offence of perjury).

Prosecutors should note that the protection in section 98(2) does not extend to the criminal investigation. The police may put relevant statements and admissions to a suspect in interview. If adopted by the suspect, the statements/admissions are admissible in criminal proceedings (subject to the usual provisions of sections 76 and 78 of the Police and Criminal Evidence Act 1984). Similarly, putting inconsistent statements made in Family Court proceedings to a defendant in cross examination in the criminal case should not be contrary to section 98 of the Children Act 1989.

Relevant material might include statements and admissions made in the Family Court proceedings by defendants and witnesses in the criminal case, or might include expert testimony in the Family Court proceedings. The police have to simply alert the CPS to the fact that relevant Family Court material exists. Prosecutors and investigators will determine whether to apply to the Family Court for permission to access such relevant material. The text of summary of a judgment in Family Court proceedings can be disclosed to the police and CPS without the permission of the court. The Local Authority (or others) can disclose to the police and CPS documents which are lodged at the Family Court, or used in the proceedings which already existed.

Prosecutors must be proactive in highlighting to police officers information which is of concern to them. If it is not possible to prosecute a case, but information available causes concern to the prosecutor, they should ensure that this is brought to the attention of the relevant investigating police officers, so that they can in turn share this with the relevant agencies including Local Authorities.

Prosecutors who receive relevant cases from the police should check with the police that they have complied with their statutory duties to share information with Local Authorities and any other relevant bodies. CPS case files should not be closed until this confirmation is received.

In addition to applying the above information sharing principles, prosecutors and investigators will need to ensure that disclosure does not prejudice the criminal investigation and prosecution. Material disclosed to the Local Authority will be shared with all parties to the Family Court proceedings and the parties are likely to include the defendant(s) and witnesses in the criminal case. The Local Authority may be able to secure a Family Court order prohibiting onward disclosure to named individuals, i.e. defendants and witnesses in the criminal case. Alternatively, it may be possible to delay disclosure of prosecution material to the Local Authority until a later date (although, other than in exceptional circumstances, the existence of criminal proceedings is not reason to adjourn Family Court proceedings). Prosecutors should consult with the police where the request for disclosure of prosecution material is made to the police.

A child or young person may even have played a role in procuring others who are then abused. In past cases there is evidence that this may have been as a direct consequence of violence, threats or coercion or because they were in a vulnerable situation and put in considerable fear. In such circumstances, careful thought must be given as to the role, if any, that child or young person plays in any potential prosecution.

It will be an essential part of the prosecution case to provide an explanation to the jury about the circumstances of any relevant offending by the witness, rather than it being put to the witness in the course of any cross examination.

Prosecutors should refer to the Disclosure Manual and the Attorney General’s Disclosure Guidelines.

Recent Complaint evidence

An immediate complaint of rape or a sexual assault is not an essential element of the prosecution case. Section 112 of the Coroners and Justices Act 2009 repealed the requirement that the complaint must be made “as soon as reasonably expected after the alleged conduct.” This recognises many victims do not report immediately for a number of reasons, which may be linked to trauma, vulnerability, embarrassment, cultural or family pressures.

On the other hand, if available, recent complaint evidence may strengthen the prosecution case. Prosecutors should therefore encourage investigators to obtain evidence of all complaints of crime made by complainants to witnesses including friends, relatives, police officers, doctors and nurses irrespective of the time lapse between the incident and the account given by the complainant.

Under section 120 of the Criminal Justice Act 2003, a formal application to admit recent complaint evidence is not required.

Considering other offences

Prosecutors should consider whether a suspect may have committed additional offences which might provide the jury with essential background to the alleged sexual abuse. This is particularly relevant when considering cases of alleged sexual abuse committed within the domestic setting. Incidents of assault, stalking, harassment or coercive and controlling behaviour which demonstrate the abusive and/or controlling nature of the relationship between the suspect and complainant will provide the jury with an understanding of the context and background within which the alleged sexual abuse took place. As the police investigation may focus narrowly around the evidence which directly relates to the sexual abuse it is important that prosecutors ensure that additional evidential enquiries relating to the associated offences are addressed at the EA stage.

Previous allegations/decisions not to prosecute

In all cases, the prosecutor should  ask the police if there have been other allegations against the suspect, which have resulted in no further action (NFA), or a decision to charge. This information may show a pattern of behaviour, which when viewed as a series of offences casts a different light on the criminality of the suspect. For example, when the suspect uses a specific defence or explanation for his conduct, which has given rise to the allegation, such as sexsomnia.

All police files should be requested and reviewed simultaneously to identify similarities and to consider whether the new allegation now provides additional evidence, which may support revisiting the earlier cases and decisions not to proceed. Prosecutors should refer to the legal guidance on Reconsidering a Prosecution Decision and the requirement to seek CCP approval before reinstating a case.

Telling a complainant about other allegations

There is no rule which prevents complainants being told that they are not the only one to have made a complaint of abuse. A complainant can be told, in very general terms, that the suspect has been the subject of complaints by others. Doing so may strengthen their resolve to continue with their engagement in the criminal justice process.

In most circumstances, this should be done after the complainant has given their statement. However, in exceptional circumstances, and with the authorisation of a police officer of at least Superintendent rank, this may take place before the statement has been given if it is considered necessary in all the circumstances of the case. Details of the allegations should not be disclosed and a careful record of what the complainant has been told should be kept.

Trawling

The term 'trawling' is used in this context to describe the process whereby the police contact potential victims even though they have not been named in any of the statements given in the course of the investigation and there is little if any intelligence to suggest the individual might be a potential victim. Such a process should be avoided because of the risk that it may give rise to false allegations. For example, in some cases involving allegations of abuse in a care home, it had been police practice years ago to contact all, or a significant proportion of, those who had been resident in the institution at the time that the offences were alleged to have taken place, rather than taking an intelligence-led approach towards identifying potential victims. This practice of "trawling" was criticised heavily in court and led to a number of cases collapsing, but contacting potential victims on a firm intelligence or evidence led basis is not prevented.

Medical evidence

The availability of medical evidence to support the case strategy should be considered at the outset of the investigation and addressed during the early consultation by the prosecutor. Many victims of rape sustain no genital injuries, or by the time of reporting, any injuries have healed. Lack of injuries is not fatal to the prosecution case but jurors may consider a lack of injuries as indicative of consent.

It is important that informed consent is provided by the complainant and recorded on matters relating to sharing details of any examination. If the complainant refuses consent to disclose the findings of the forensic examination then the prosecutor will need to evaluate whether the prosecution can proceed.

A forensic medical examination should take place with informed consent once urgent medical treatment has been administered by a forensic medical examiner (FME). Some FMEs, despite considerable experience, will regard themselves as professional witnesses rather than experts and may be reluctant to offer an opinion. It is not uncommon for nurse practitioners to carry out the role of the FME in some areas. Where the FME is inexperienced or unwilling to provide an opinion it may be necessary to instruct an expert to provide an opinion based on the FME’s report.

One aim of the examination is to recover evidence to support the complainant’s assertion that a sexual assault has taken place, without consent. External and internal areas of the body can be swabbed for samples that can be submitted for forensic examination with a view to revealing evidence to identify or eliminate the suspect, and the nature of the activity that has taken place. Colposcopes may be used to record injuries in the ano-genital area or body maps completed and appended to the examiner’s notes. See guidance for best practice for the management of intimate images that may be used in evidence at court.

The CPS Rape Protocol requires that the FME is included at the case conference with the prosecutor, trial advocate and the OIC, unless there are particular reasons for not doing so. Similarly, the FME should be called as a live witness at trial unless there are considered reasons for not doing so.

The FME statement should not be reduced to section 10 admissions without first checking with the FME that the meaning has not been diminished or misinterpreted. Calling the FME to give evidence can be an effective way of addressing potential myths with the jury with regards to issues such as the absence of injury.

Forensic Evidence

Forensic evidence may provide crucial assistance with determining the key issues in the case. DNA deposited during the commission of an offence may for example link the suspect to the crime or, in allegations of rape, confirm penetration has taken place.

There are a wide range of exhibit types that may be appropriate for forensic examination in a RASSO case including:

  • Intimate swabs (vaginal/anal)
  • Other body swabs
  • Underwear and other clothing
  • Bedding
  • Condoms
  • Urine
  • Sanitary wear
  • Other (e.g. cars)

There are a variety of evidence types that may be relevant in a RASSO case including:

  • Semen
  • Saliva
  • Touch DNA
  • Blood
  • Other body fluids
  • Hairs
  • Damage
  • Toxicology
  • Other trace evidence (e.g. fibres)

Forensic scientists can use a variety of techniques in RASSO investigations including:

  • Visual examination
  • Chemical testing
  • Recovery of trace evidence (hairs, fibres, debris)
  • Enhanced search and recovery techniques
  • DNA profiling, including Y-STR profiling
  • Statistical analysis & results interpretation

A clear understanding of the accounts provided by both complainant and suspect is key to ensuring the value of the forensic examination. A complainant might be able to provide important information relating to the following matters:

  • Activities involved
  • Time frames
  • Previous intercourse/sexual activity
  • Washing/showering/bathing
  • Defaecation
  • Consumpton of food/drink
  • Clothing – changed, washed
  • Sanitary wear – when used/changed

There are two key approaches to forensic examination in RASSO cases which both rely on information provided by the police and forensic medical examiners – investigative and evaluative. Some cases may involve both approaches.

  • Investigative cases
    • Often the initial focus is on the identification of a suspect
    • If a suspect changes his account upon identification an evaluative approach may be required.
  • Evaluative evidence
    • Version of events from both the complainant and the suspect
    • Often foundation of incident is not disputed but may be looking for discrepancies between each version of events
    • This may require interpretation of levels, location & distribution of body fluids/DNA in relation to the two versions of events

With the appropriate information forensic scentists can ensure an efficient examination focusing on the most appropriate exhibits  i.e. those items most likely to assist with the issues of that particular case.

Prosecutors should be aware that victims might not have provided full details of the incident due to trauma, feelings of shame, cultural or family concerns. Prosecutors should be prepared for this possibility and if samples can be requested to prove or disprove an issue every effort should be made to obtain them.

In some instances, anticipated defence tactics may justify the analysis of swabs even where penetration is not disputed and consideration should be given to obtaining and serving forensic evidence in order to avoid perceived gaps in the prosecution case. Jurors may ask questions about the findings of forensic examinations. Where the findings are neutral it may nevertheless be helpful to have this evidence called as part of the prosecution case. Effective communicaton with the forensic scientist, ideally via a case conference, is essential to ensure that the strongest possible case is presented.

Any Section 10 admission arising out of a forensic report should be referred to the forensic expert to ensure its accuracy. Consideration should also be given to calling the forensic expert to address neutral findings in appropriate cases. 

Prosecutors should refer to other legal guidance on DNA evidence and guidance on choosing and instructing experts. In more complex cases a forensic strategy should be agreed with the police and documented. Streamlined forensic reports should be used where possible as the basis for s10 admissions but where the evidence is in issue, prosecutors must ensure compliance with the Criminal Procedure Rules.

The admissibility of expert evidence where low template DNA was derived from a mixed sample was considered by the Court of Appeal in R v Kuba Dlugosz, [2013] EWCA Crim 2 where it was not possible for the expert to give a random match probability. The court found that provided that the evidence supports the reliability of the DNA evidence, a suitably experienced forensic scientist can provide an evaluative opinion – weak – very strong, etc. The jury must be directed in clear terms that it is an evaluative opinion based on the experience of the scientist and not on statistics.

Despite improvements in recovery of semen, majority of cases submitted are negative for presence of semen. There are a variety of potential reasons for this including:

  • No ejaculation
  • Condom used
  • Insufficient semen transferred for detection on swabs taking a while after incident
  • Drainage
  • Alleged incident did not occur

Prosecutors should be aware that Y-STR DNA profling can be considered when no semen is detected on intimate swab samples and provides opportunities for corroborative evidence where conventional DNA analysis has not.

Persistence guidelines relating to the collection of forensic specimens taken from suspects and complainants have been set by the Faculty of Forensic & Legal Medicine but these are being revisited following development of technologies in this area and so expert advice should be sought before discounting forensic opportunities.

In cases in which the DNA is the crucial evidence the risk of contamination must be considered. Some incidents of contamination leading to potential miscarriages of justice are recorded on the website of the Forensic Science Regulator (link) with reports on the case of R v S (14 January 2014) and the case of R v Scott (17 October 2012). The Regulator has issued guidance on the handling of DNA evidence at the crime scene, at the laboratory and during medical examinations. Errors in handling the DNA at any such stage can lead to contamination.

Both the previous and current Regulators have expressed concern about the CPS prosecuting cases on DNA alone. Although in some instances,  as in the case of R v FNC [2015] EWCA Crim 1732, the court of Appeal held that a very high DNA match to the defendant was sufficient to raise a case to answer.

Toxicology

In cases where it is alleged that the complainant was incapable of giving consent as a result of alcohol consumption or drug induced intoxication, toxicology evidence may provide strong support for a lack of capacity to consent. Back calculations in relation to alcohol consumption feature in many rape cases. Early evidence kits should be provided as standard to all first responders and it is good practice to take urine or blood samples for the purpose of toxicology reports.

Drug Facilitated Sexual Assaults (DFSA)

In addition to alcohol there are various drugs used during the commission of sex offences either by force, covertly or self-administered. These may be prescription drugs, illegally obtained pharmaceutical drugs or street drugs, which are administered on their own or mixed with alcohol, or other substances.

Any combination of drugs may be used by DFSA perpetrators.

There are four main substances used in DFSA in the UK, namely:

  • Benzodiazepines – white pill (crushed)
  • GHB (Gamma Hydroxyl Butrate) – has a few forms: a liquid with no odour or colour, white powder and occasionally pills (salty/bitter taste).
  • Rohypnol – a green/grey pill that dissolves in liquids, turning the liquid blue/green. It has slow dissolving properties and so may leave bits in the drink.
  • Ketamine – a white powder.

There is evidence to suggest that an increasing number of rapes and sexual assaults are taking place within the ‘chemsex’ setting. Chemsex is the term used to describe sexual activity that occurs when the parties are under the influence of drugs taken immediately preceding and/or during the sexual activity. It is particularly commonplace within the homosexual community. Prosecutors should be aware that victims of rape and/or sexual assaults committed within the chemsex setting may be reluctant to engage with a prosecution for fear of disclosing offences they have committed with respect to the use or supply of prohibited drugs.

Evidence of psychological injury

The leading of expert evidence to explain the responses of the complainant to rape both during and after the assault is generally not admissible in criminal trials as it has been determined that this evidence is within the general understanding of the jury which can be addressed through Judicial directions..

In the case of R v Adam Eden [2011] EWCA Crim 1690 the Court of Appeal approved the judicial decision to admit evidence of a consultant psychologist. The court indicated the admissibility could have been justified on the grounds that it provided evidence of psychological injury in exactly the same way as a doctor might give evidence of physical injury consistent with a particular allegation.

The police may not be aware that the complainant is suffering from PTSD at the point when they give their first account. This may only become apparent with the passage of time. Where there is evidence of PTSD prosecutors should request an expert’s report and seek to introduce it in line with R v Eden.

Bad Character evidence

Prosecutors should consider whether a bad character application should be made in relation to previous convictions or other reprehensible conduct.

The Court of Appeal in the recent case of R v Adams [2019) EWCA 1363 re-affirmed that where the prosecution wishes to admit evidence in relation to one offence on an indictment in support of another (‘cross-admissibility’) the prosecution must formally make a bad character application under section 101(1)(b) of the Criminal Justice Act 2003. In this case two complainants made allegations of sexual abuse against the defendant. The prosecution did not make an application for their evidence to be cross-admissible as bad character. The judge omitted to give the required direction to the jury to disregard the evidence on one count when considering another and the Court of Appeal quashed the conviction.The judgment makes it clear that where the prosecution wants to admit evidence in relation to one count in support of another, a formal bad character application must be made.

In rape cases with a background of domestic violence consideration should be given to a bad character application to adduce evidence of the violent nature of the relationship. In R v Geoffrey Mark P [2006] EWCA Crim 2517 the court confirmed that the complainant was entitled to give her account of the violent nature of the relationship, including an alleged rape which was previously unreported. The defendant had given an account of their volatile relationship and unless the complainant was allowed to give an account of their relationship, the jury would be unable to make a proper assessment of the respective evidence of the two protagonists. The Judge was entitled to conclude sections 101(1) (c) and (d) Criminal Justice Act 2003 were appropriate gateways for admissibility.

In cases of child sexual abuse, the possession of indecent images may be admissible as bad character evidence under gateway (d). In the case of R v D,P and U [2011] EWCA Crim 1474   the Defendants possession of indecent photographs of children was deemed  capable of being admitted on the grounds that it was evidence of a sexual interest in children and thus relevant to a matter in issue between the defence and the prosecution.

The possession of indecent images which post-date the offence is still admissible as evidence capable of showing a sexual interest in children. See R v B [2011] EWCA Crim 1630.

Evidence of reprehensible conduct, which cannot be prosecuted, may be admissible under the bad character gateways. In the non-recent case of R v D [2014] EWCA Crim 1683 involving rapes committed at a very young age the Court of Appeal found that evidence of acts committed under the age of 10 years could be admitted as important explanatory evidence.

Detailed guidance on the bad character provisions can be found in the CPS legal guidance.

Hearsay evidence

Where the complainant is deceased or too vulnerable to attend court the prosecution must consider proceeding without them.

In the case of R v Riat [2012] EWCA Crim 1509 the court considered a number of cases involving sexual offences and the use of the hearsay provisions to adduce the complainant’s account.

Detailed guidance on the use of hearsay evidence can be found here.

Pre Trial Witness Interviews (PTWIs)

The Rape Protocol requires prosecutors to consider conducting a PTWI in all cases prior to charge and endorse the review with reasons for their decision making in every case.  They are an effective tool and considered particularly useful in borderline cases. See the PTWI legal guidance for further information.

Further reading

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