Rape counts, linked to murder, left to lie on file
- Charging issues
- Accepting pleas
- Consulting with the victim's family
- The views of the judge
- Second opinions
- Sexual Harm Prevention Order (SHPO)
- Useful Links
The decision whether rape counts, linked to murder, should be left to lie on file, is the prosecutor's responsibility. This guidance provides assistance to prosecutors, by identifying some of the issues to be taken into account when making this decision.
Due to the seriousness with which the CPS regards rape, rape counts should be left to lie on file only in exceptional circumstances.
Regardless of any tariff or likely tariff to be passed following a conviction for murder, any decision concerning the leaving of related rape counts to lie on file must be taken only after very careful consideration.
Prosecutors should bear in mind that some victims' families can have difficulty comprehending decisions not to proceed with rape counts. In particular they may perceive that defendants charged with rape and murder have, by pleading guilty to murder and not guilty to rape, intentionally avoided acknowledging their guilt for sometimes repeated and/or sadistic sexual violence. They also escape being classified as a 'sex offender' for the purposes of the Sexual Offences Act 2003 (the SOA); and may avoid appropriate assessment and treatment whilst in prison.
In cases of murder where there has been a rape relating to the deceased, the offence of rape should usually be charged, providing there is a realistic prospect of conviction.
Murder and rape are very different offences and the purpose of charging both is to:
- reflect the seriousness and extent of the offending; and
- address issues of risk management and rehabilitation including giving the court adequate powers to impose appropriate orders post-conviction and ensure that the offender will be subject to the notification requirements set out in the SOA, if released from prison on licence.
This applies even though section 5 of Schedule 21 of the Criminal Justice Act 2003 provides that a murder involving sexual or sadistic conduct is normally to be regarded as sufficiently serious for the appropriate starting point, in determining the minimum term, to be 30 years.
In addition to the common public interest factors tending in favour and against prosecution set out in the Code for Crown Prosecutors, prosecutors should take into account the following factors tending in favour of prosecution when deciding whether a prosecution for rape is in the public interest:
- Rape is so serious that a prosecution is almost certainly required in the public interest.
- A conviction for rape will result in the application of Notification requirements under the SOA.
- A conviction for rape will affect the terms under which a convicted offender is detained by the prison in which his sentence is served.
In addition to the common public interest factors tending in favour and against prosecution set out in the Code for Crown Prosecutors, prosecutors should take into account the public interest factors tending in favour of prosecution, set out in Charging issues above when considering whether a plea to murder alone is acceptable. The prosecutor should also consider any views expressed by the victim's family. (See Consulting with the victim's family below.)
Although the CPS acts on behalf of the public at large rather than on behalf of individual families we acknowledge the importance to victims' families of justice being seen to have been done.
When considering whether the pleas offered are acceptable, consultation with the victim's family will usually be essential. Proper time needs to be provided for this important stage in the overall process. This may involve adjourning the case.
Consultation with the victim's family will consist of the following:
- Firstly, explaining the pleas proposed by the defence; the options available; and the implications of any decision either to proceed with the rape counts or to allow them to lie on file; and
- Secondly, inviting the family to express their views, which will be carefully considered and taken into account when making any decision.
Prosecutors should not make assumptions about what a family's views might be; or about what would be in the best interests of a family. Whilst some families may wish to see the defendant publicly brought to justice for the rape allegations, other families may prefer the criminal proceedings to be brought to a close by the defendant being sentenced for murder, particularly where it is likely that the judge will significantly increase the tariff to reflect the aggravating feature of the sexual offending.
Any decision on the public interest is the responsibility of the CPS, and not a judicial one. The Court of Appeal considered the respective roles of the judiciary and the CPS in R v SH  EWCA Crim 1931, and identified the "long tradition" of judges expressing views about a proposed prosecution and the CPS reconsidering its position in the light of the judge's expressed views. The Court acknowledged that the CPS does not always accept the judge's views but that those views are one of the factors to be taken into account when reaching the decision on the future of a prosecution.
Where a prosecutor is of the opinion that a case should continue, despite the stated views of the judge to the contrary, the onus will be on the prosecutor to firmly but politely inform the judge of their position. Conversely where the prosecutor considers it is in the public interest to accept a defendant's plea to some, though not all of the charges against him, the judge will need to be satisfied that such a course is appropriate before proceeding to sentence.
Guidance on challenging judicial rulings can be found in Prosecution Rights of Appeal elsewhere in the legal guidance.
In order to achieve a consistent approach and ensure that these sensitive decisions are appropriately made, any decision to allow rape linked to murder, to lie on file must be confirmed by a senior CPS manager of level E or above, and their opinion, name and grade recorded on the CPS case management system (CMS).
The Court of Appeal has expressed the view that in general a Sexual Harm Prevention Order (SOPO) would not be appropriate in conjunction with an indefinite sentence because it is unnecessary. Rather, it was said, the court should leave the prevention of further offences to those tasked with the fixing of licence conditions. In R v Steven Smith and others  EWCA Crim 1772 the Court of Appeal said; "the usual rule ought to be that an indeterminate sentence needs no SOPO". However, when considering a determinate or extended term, the Court of Appeal acknowledged that: "a SOPO may plainly be necessary", albeit that the framing of suitable prohibitions may, in the case of a very long sentence, be more meaningful at the point that the offender is about to be released rather than when they are just beginning their sentence. It is submitted that the same principles apply to SHPOs, which replaced SOPOs.