Rape And Serious Sexual Offences Prosecution Guidance - Full Page Version

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Prosecution Guidance Domestic abuse Sexual offences Violence Against Women and Girls (VAWG) and Child Abuse

 

Chapter 1: Introduction

Introduction

The Rape and Sexual Offences (RASSO) prosecution guidance sets out how prosecutors should apply the Code for Crown Prosecutors to rape and other sexual offences in order to build cases that are evidentially strong, suspect-centred and victim focused.

Rape and serious sexual offences (RASSO) cases are some of the most serious and complex offences we deal with. Such offences can have a devastating impact on victims, families and communities, and we will almost always seek to prosecute where there is sufficient evidence to do so.

The purpose of the guidance is to:

  • Assist prosecutors to identify the most appropriate charges under the relevant legislation, reflecting the totality of the offending
  • Identify and facilitate understanding of the legal issues arising in cases of rape and other sexual offences
  • Support prosecutors to deliver a robust case strategy in rape and serious sexual offence cases adopting a suspect-centric approach
  • Provide prosecutors with a strong understanding of misconceptions and assumptions that can be present in RASSO cases
  • Signpost prosecutors to the policies, legislation and key cases that are relevant to decision making, managing reasonable lines of enquiry and disclosure issues in rape and serious sexual offence cases.

This guidance should be read in conjunction with the National Operating Model for Adult Rape, the Director’s Guidance on Charging (6th Edition), the Disclosure Manual, and the Criminal Procedure Rules 2025 as amended. Other guidance which may assist in the building of RASSO cases includes:

The CPS Violence against Women and Girls Strategy sets the strategic direction for the CPS work in this area. It outlines two CPS priorities in tackling VAWG - prioritising increased casework quality and increasing trust in the way CPS handle VAWG crimes. Although the majority of reported rape and serious sexual offences are made by women and girls – committed by men within a context of power and control - many men and boys are also victims of rape or sexual offending. The CPS Men and Boys Statement should be considered alongside this guidance.

A significant proportion of offences are committed in a domestic setting and therefore an understanding of the impact and dynamics of sexual abuse as set out in the Domestic Abuse prosecution guidance is extremely important.
The National Operating Model for Adult Rape sets out how the CPS will work, in partnership with police, to build effective cases and improve our service to victims of these crimes. Victims of rape and sexual assault are entitled to an enhanced service under the Code of Practice for Victims of Crime.

Chapter 2: Early Advice

Early Advice

In accordance with the National Operating Model for Adult Rape and Director’s Guidance on Charging 6th Edition (DG6) the provision of early advice is strongly encouraged in rape or other serious sexual offence cases. All requests for early advice should be in line with the Policing and CPS National Operating Models and Memorandum of Understanding of early advice between CPS Areas and local police forces.

Prosecutors and police may work together through early advice to consider issues, including but not limited to:

  • possible reasonable lines of enquiry
  • potential charges
  • evidential requirements
  • pre-charge procedures
  • disclosure management
  • the overall investigation strategy informed by case strategy principles, including whether to refine or narrow the scope of the criminal conduct and the number of suspects under investigation
  • legal elements of offences
  • an emerging case strategy including early consideration of the need for expert evidence, particularly important in cases involving young and/or vulnerable complainants
  • consideration of protective steps that can be put in place to support the complainant, such as an early discussion of available special measures, ancillary orders and bail conditions
  • consideration of other offences or behaviour by the suspect that may support a bad character application.

Where advice is given prior to a request for a charging decision it is regarded as “early advice”. Guidance on early advice can be found in the DG6 and in the National Operating Model for Adult Rape.

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.
  • 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.
  • 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 a RASSO offence this 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, the police may make that decision.

Protective Orders

Prosecutors should in appropriate cases remind the police of their ability to apply for a Sexual Risk Order (SRO).

SROs can be applied for by a Chief Officer of Police or the Director General of the National Crime Agency by way of complaint to a Magistrates’ Court. These orders are generally made against an individual who has not been charged cautioned or convicted for the offence but who nevertheless is thought to pose a risk of harm to the public in the UK and or children or vulnerable adults abroad. Proactively advising the police about protective and ancillary orders is the responsibility of the prosecutor throughout the management of a case.

At the pre-charge stage the prosecutor and the investigator should identify offences which in the event of conviction may attract a Sexual Harm Prevention Order. It is important to note that a failure to properly consider a SHPO at the pre-charge stage can lead them to being overlooked throughout the life of a case, and in the event of an early guilty plea, not being prepared at the point of sentence. Prosecutors should review section 345 Sentencing Act 2020 noting that a SHPO is available on conviction for an offence in Schedule 3 or 5 of the Sexual Offences Act 2003 and section 346 for the test of necessity.

Chapter 3: Supporting complainants in Court

Introduction

Prosecutors should throughout the lifetime of a case have support for the complainant at the forefront of their minds. This will involve working with and advising the police on the safety and security of the complainant and considering measures available to protect them. Complainant safety is also very important in maintaining the support of the complainant for the duration of the prosecution process which will include ensuring consideration of the following:

  • A proactive and considered approach to protective orders, including where a decision is taken to not charge an offender
  • Consideration of bail with associated conditions at the point of charging the offender. If a suspect is released under investigation there is no power for the police to attach conditions but once a decision is then made to charge and the defendant attends court, bail with or without conditions can then be imposed at that point
  • A full investigation of available special measures
  • Engagement with specialist support services.

Bail and victim safety

The prosecution has a responsibility to ensure the safety of victims and witnesses as far as possible by making appropriate applications to remand defendants in custody, or by seeking bail with suitable conditions attached.

When a suspect is arrested for an offence, unless they are not suitable to be bailed and are kept in custody, they can be bailed pending further enquiries and/or CPS charging advice, with or without conditions. The police also have the option to release a suspect under investigation pending further enquiries and/or the obtaining of CPS advice. If a suspect is released under investigation there is no power for the police to attach conditions but once a decision is then made to charge and the defendant attends court, bail with or without conditions can then be imposed at that point.

Prosecutors must ensure in their pre-charge review that the status that applies to the defendant is recorded and the approach that they think should be taken to the question of bail.

Prosecutors should ensure that the police (and through the police, IDVAs, YPVAs and other specialist support organisations) have gathered relevant information, including the victim's views. This will help to inform conditions to be applied when the defence make bail representations and will assist in opposing bail when a remand in custody in appropriate. This may include the following:

  • the victim's whereabouts or living arrangements - whether the victim is in a refuge or other safe location, the details must not be disclosed as part of the bail arrangements or any protective order;
  • fears the victim may have regarding the defendant’s behaviour;
  • the victim may fear the defendant’s contact with other family members and subsequent repercussions;
  • the victim's fear of further offences or repeat offending by the defendant;
  • information regarding any child victim or any other dependents (for example, care arrangements for children, other family members, and/or any risk of abuse);
  • areas/locations the victim frequently visits or attends (for example, the school attended by child victims or dependents, any social clubs that the child or victim attends);
  • methods of contact between the victim and defendant (including, but not limited to phone, emails or social media and networking sites, as well as face to face);
  • whether any civil orders are in force and details of those orders;
  • whether any civil or family proceedings are ongoing and the stage they have reached;
  • the proximity of any of the defendant’s relatives, to the victim and the likelihood the offender may want to visit them;
  • whether the defendant is a carer for the victim;
  • whether the defendant may already be on bail for another offence;
  • the defendant’s history of complying with bail in the current case proceedings; and
  • the defendant’s history of complying with bail in other proceedings, especially where the offence in question, was one of domestic abuse.

Prosecutors should ensure that any bail conditions requested prioritise the safety of the adult or child victim and any dependents. The victim should retain as much freedom of movement as possible by curbing the ability of the defendant to approach or intimidate them, such as at home, on the way to work, school or college, regular social venues, extended family homes, when taking children to school, or when socialising with friends. Due care will be required in relation to the different dynamics of the abuse, such as whether the abuse is familial, or between former or current intimate partners, and the nature of safety needs required by the victim.

Victim Personal Statements

The Code of Practice for Victims of Crime (“Victims’ Code”) establishes a victim’s right to make a Victim Personal Statement, in which a victim explains in their own words how a crime has affected them, whether physically, emotionally, financially or in any other way. The DG6 makes clear that the information required for a charging decision includes whether a Victim Personal Statement has been offered and (1) has been taken or is yet to be taken; (2) is to be read out; (3) is to be read out by the victim; (4) has been declined by the victim. The DG6 also sets out that the material required for a charging decision includes the Victim Personal Statement, where available.

For information about Victim Personal Statements, victims can be directed to the CPS’s guide for victims of rape and serious sexual assault. This guide explains what a Victim Personal Statement is and provides guidance for victims who wish to read their Victim Personal Statement out loud to the court.

Supporting complainants at court

Under sections 23 - 30 Youth Justice and Criminal Evidence Act 1999 (YJCEA) a range of special measures are available to support vulnerable and/or intimidated witnesses to give their best evidence and reduce the stress and anxiety associated with the trial process. Prosecutors should refer to the Special Measures guidance and also the comprehensive guidance issued by the MoJ in Achieving Best Evidence in Criminal Proceedings.

The use of special measures to support complainants of sexual offences should be discussed at the early consultation stage and in early advice discussions with the police to ensure appropriate support is planned for and available to the witness. This is particularly important where the complainant may require an intermediary who should be involved as early as possible in the interview process.

Pre-recorded evidence-in-chief may not always be the most appropriate method of recording the complainant’s account. The complainant should make an informed choice about having their evidence in chief pre-recorded and be informed about what other special measures can be applied for throughout the process.

In due course early identification of witnesses eligible for section 28 pre-recording of cross examination will be essential.

Section 25(4)(a) YJCEA 1999

A special measures direction to clear the public gallery for witnesses in sexual offences cases has the potential to provide significant assistance to complainants who feel intimidated by the prospect of giving evidence about highly sensitive matters in court in the presence of those there in support of the defendant and/or members of the public. The provision is currently under-utilised and prosecutors should consider if this special measure would be appropriate for complainants. The measure can be used in a targeted way to restrict certain individuals from the public gallery.

Pre-trial meetings

Where the case has been listed for trial, adult complainants will be offered a pre-trial meeting with members of the prosecution team. This meeting is an opportunity for the complainant to hear directly from the CPS and ask any questions about the prosecution process.  It is also an opportunity to discuss the special measures that have been applied for or can be applied for, to ensure the complainant is fully informed of their options. Prosecutors should refer to the CPS guidance on pre-trial meetings for adult victims of rape and other serious sexual offences when holding these meetings.

It is CPS policy that a video recorded interview may be shown to the witness before the trial for the purpose of refreshing memory unless it has been ruled inadmissible. How and when this takes place should be decided on a case-by-case basis, with the overriding aim of enabling the witness to give best evidence. We recognise that for some complainants watching their video recorded interview may be too distressing. Where this is the case, we should consider whether it is appropriate for the complainant to read their interview transcript instead. Any such approach should consider the individual needs of the complainant (including, for example, age and ability), be discussed with police and, where relevant, the court notified of memory refreshing arrangements.

Intermediaries

Intermediaries are communication specialists. They are independent of all parties in criminal proceedings and owe a duty to the court. Prosecutors should refer to the Intermediary section of the CPS Special Measures prosecution guidance for more detail on the engagement of an intermediary in cases.

In view of the critical importance of the complainant’s ABE interview in RASSO cases prosecutors should work with the police at an early stage to ensure that the instruction of an intermediary is considered at the outset of the investigation. There are no set criteria for deciding whether an intermediary is required. A case-by-case approach is necessary. Consideration should be given to whether a witness is likely to misunderstand questions, have difficulty expressing answers, or be unable to recognise or challenge problematic questioning. Such communication needs may arise as a result of physical disabilities, mental illnesses, autism, dementia, personality disorders etc.

Prosecutors should ensure intermediaries are considered for use at court in every case involving a child witness and record their decision, particularly of the rationale where a decision is taken not to use an intermediary in these cases.

The age presumption that intermediaries should be used for all child witnesses under 11 was removed from the Criminal Practice Directions in 2016.

For additional guidance see:

Ground Rules hearings (GRHs)

Ground Rules hearings are intended to ensure the effective participation of vulnerable defendants or witnesses in the trial process, which includes the court giving directions for the appropriate treatment and questioning of vulnerable defendants or witnesses.

Ground rules hearings take place in all cases where an intermediary is involved and in all cases where there are young witnesses or witnesses with communication difficulties.

The Criminal Procedure Rules 2025 provide detailed guidance on ground rules hearings (Rule 3.9).

In cases where a witness is young or otherwise vulnerable the judge may impose restrictions on the advocate “putting their case” where there is a risk of a witness failing to understand, becoming distressed or agreeing with leading questions. Counsel should address this at every ground rules hearing.

In Lubemba [2014] EWCA Crim 2064 the Court of Appeal stated that there was a need for radical departure from traditional advocacy and that the advocate must adapt to the needs of the witness rather than the other way around. The Court of Appeal made a number of recommendations, which included ground rules hearings in every case involving a vulnerable witness, save in exceptional circumstances. The Appeal court also stated that it would be reasonable to ask the Defence advocate to reduce questions to writing.

The Practice Directions have adopted this approach and reflect the Court of Appeal’s position that traditional advocacy is no longer acceptable where the witness is vulnerable or young.

Pre-trial therapy

The best interests of the vulnerable or intimidated witness or complainant are the paramount considerations in decisions about the provision of therapy before trial. The decision to have counselling or therapy pre-trial is not one for the CPS or Police to make but is a decision to be taken by the witness, the parents or those responsible for their care.

In all cases, it should be presumed by default that requests for counselling information are neither necessary nor proportionate. Per section 44 of the Victims and Prisoners Act 2024, such requests can only be made when this presumption can be rebutted and the information sought is likely to have substantial probative value to a reasonable line of enquiry being pursued, as set out in the Code of Practice for Victim Information Requests. You can read more about the operation of this legal threshold in chapter 4 Reasonable lines of Enquiry in RASSO cases.

Disclosure of therapy notes to the defence

Material generated as a result of therapy must only be disclosed by the prosecutor to the defence in criminal proceedings if it might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.

In determining whether to disclose material generated as a result of therapy, the prosecutor must take into account the complainant’s right to privacy in accordance with Article 8 of the European Convention on Human Rights and this will usually mean that the prosecutor is satisfied that the complainant consents to the disclosure of material (see Consent of the complainant below).

Only in exceptional cases will the CPS seek to obtain material held by the therapist against the wishes of the complainant by way of a court order.

Using therapy notes as part of the prosecution case

It is possible that a review of therapy records will reveal material which is helpful to the prosecution case (for example, evidence of a first disclosure in a non-recent case of sexual abuse). If the prosecutor intends to use notes as evidence they should inform the complainant of his intention and seek their consent.

Consent of the complainant

Because disclosure of records will engage the Article 8 right to privacy of the victim it is crucial that the police obtain the victim’s informed consent to: gain access to the records; and enable disclosure, where appropriate, to take place.

Prosecutors must satisfy themselves that consent to disclose the therapy notes has been obtained by the police from the person to whom the notes refer before any disclosure of material to the defence takes place.

When obtaining consent, the complainant or witness should be informed why the request is being made and what might happen to the record. The complainant or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences for the case outcome.

Complainants who withdraw support for the prosecution

In circumstances where a complainant of rape withdraws support for the prosecution it will be necessary to consider whether to request a witness summons and compel the witness to attend.

The approach to be followed in domestic abuse and RASSO cases is outlined in detail within the Domestic Abuse prosecution guidance in the sections ‘Victim withdrawals and withdrawal statements’ and ‘Witness summonsing a victim’.

As a result of receiving any withdrawal statement and accompanying police report, prosecutors may need to consider whether further charges of, for example, witness intimidation, are appropriate. If the reason for a complainant or witness's withdrawal is based on fear or intimidation, the prosecutor needs to have such evidence brought to their attention.

This will allow appropriate decisions to be made about any applications under section 116 (2)(e) Criminal Justice Act 2003.

Independent Sexual Violence Advisors and Equivalent Service Providers

Independent Sexual Violence Advisors (ISVAs) and equivalent services support victims of sexual violence across England and Wales, whether or not they report to the police. Based in a range of organisations, they offer practical advice on issues from the criminal justice process to housing and benefits and often begin working with victims soon after contact with a Sexual Assault Referral Centre or emergency services.

When a victim reports to the police, ISVAs work with them throughout the legal process and beyond, including attending court when they give evidence. They also coordinate with the police, CPS, counselling, and health services as part of a virtual multi agency team to focus on meeting the victim’s needs.

The CPS recognises the vital role ISVAs play in improving responses to sexual offences and supporting victims. A victim may wish to bring their ISVA or other supporter to a pre-trial meeting and the CPS RASSO Units have established routes for ISVAs to contact the CPS directly.

The type of support provided by ISVAs includes:

  • Provide emotional support;
  • Educate and give information;
  • Understand the witness's views, wishes, concerns, and any particular vulnerabilities that might affect them during the criminal process (including the witness's views on Special Measures), and convey these to the relevant criminal justice system agency;
  • Agree the manner and frequency of the provision of information;
  • Familiarise the witness with the court and its procedures, and with the responsibilities of the criminal justice system;
  • Support the witness through interviews and court hearings;
  • Explore with the witness their preferences in respect of Special Measures and if it is relevant who they would want to accompany them into the live link room and relay that information to the Witness Care Unit or CPS Prosecutor;
  • Undertake court preparation and pass on information about the forthcoming trial;
  • Accompany the witness on a pre-trial visit to court;
  • Accompany the witness when their memory is to be refreshed (this should not be undertaken by a supporter who will accompany the witness while giving evidence);
  • Accompany the witness while they give evidence in court or the live link room (where the court approves this);
  • Liaise with family members and friends of the witness;
  • Liaise with legal, health, educational, social work and other professionals and act as an advocate on behalf of the witness;
  • Liaise with those offering therapy and counselling prior to a criminal trial; and
  • Arrange links with experts in any of the witness's specific vulnerabilities or difficulties, for example, communication problems, learning disabilities, specific cultural or minority ethnic group concerns or religious priorities.

Achieving Best Evidence in Criminal Proceedings (ABE) guidance states that support during the court process itself, the live link room or when giving remote live link evidence, is to be provided when it is necessary. Appendix L of the ABE guidance sets out the National Standards for the Court Witness Supporter in the Live Link Room which includes further information about evidential constraints which apply to the person providing support. The identity of any supporter should be included in relevant special measures application.

The Criminal Procedure Rules Part 3 (3.8) outline that the court can give directions for someone to accompany a witness where they give evidence and at any other hearing.  Where the companion is an ISVA, the court must, as a general rule, allow the ISVA to sit next to or near the witness in the court room or wherever the witness is giving their evidence from, subject to any directions given in a Ground Rules Hearing. Part 3.8 details the advance notification the court needs and limitations on the role of the advisor or companion.

ISVAs and equivalent service providers are trained so that their role as a supporter does not cross any evidential lines such as discussing the evidence in the case with the complainant or witness The ISVA, and equivalent service providers, have a relationship of trust with their clients but are not party to the case and must have no detailed knowledge of the case.

It is important to note that records compiled by an ISVA are considered to be ‘counselling records’ for the purposes of section 44A of the Victims and Prisoners Act 2024. Counselling Records are defined in the Code of Practice for Victim Information Requests as “a service, remunerated or voluntary, which offers psychological, therapeutic or emotional support aimed at improving a victim’s emotional, psychological and mental health.” (paragraph 79). This means they attract enhanced legal protection from law enforcement access requests. You can read more about the operation of this legal threshold in chapter 4 Reasonable lines of Enquiry in RASSO cases.

Chapter 4: Reasonable Lines of Enquiry in RASSO cases

Introduction

A case strategy is a carefully planned route to a just outcome. It should be central to prosecutor mindset as soon as a case is sent to the CPS from policing – either for early advice or for a charging decision. Ensuring thoughtful analysis at the evidential stage of a case review is important to a strong case strategy, and this includes a proactive, and ongoing, consideration of disclosure. It is important throughout the life of a case to keep reasonable lines of enquiry under review and document such reviews in the Disclosure Management Document.

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 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 early advice 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”), informed by case strategy. It must not be an exercise simply to complete. The DMD should clearly identify what has been considered to be a reasonable line of enquiry in the case and why.

  • 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 Pre-Trial Preparation Hearing (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.

Reasonable lines of enquiry

The Attorney General’s Guidelines on Disclosure 2024 and the CPIA Code of Practice 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 consider what the identified or likely issues in the case are and should develop a case strategy based on that. This will inform prosecutors what reasonable lines of enquiry should be pursued.

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 ensure that any reasonable lines of enquiry identified by the suspect have been considered. 

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 or on digital devices must be a reasonable line of enquiry, justified by the circumstances of the individual case and guided by a clear case strategy. It should not be undertaken routinely in every case.

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 data must be carefully considered and balanced against the suspect’s article 6 rights. 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.

Reasonable lines of enquiry and third-party material

The Attorney General’s Guidelines on Disclosure 2024 outlines a three-step approach when considering whether third party material should be requested:

  • establishing a reasonable line of enquiry
  • establishing relevance, and
  • balancing rights

Step 1: Establishing a reasonable line of enquiry

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

  • Social services departments
  • Forensic Physicians
  • Counsellors/therapists, noting the higher thresholds for these notes
  • Schools
  • Medical Practitioners
  • Hospitals
  • Family Court
  • Owners of CCTV

This type of material should only be considered if it is established as a reasonable line of enquiry. The CPIA and CPIA Code of Practice make clear that the obligation on the investigator to pursue all reasonable lines of enquiry includes material held by third parties within the UK. This material may be considered as part of the investigation if they have been identified as relevant to a reasonable line of enquiry.

Investigators should articulate the approach taken to particular sensitive information such as therapy notes in the Information Management Document (IMD) or equivalent document. This will allow the prosecutor to determine whether duties under the CPIA have been met; it will also allow them to complete the Disclosure Management Document (DMD), which is provided to the defence and court. The DMD includes a section where the prosecutor is required to clarify which third parties have been identified as holding relevant material and what steps have been taken to preserve and/or obtain access to that material.

Step 2: Establishing relevance

The AG’s Guidelines list factors that investigators and prosecutors should consider when deciding whether third party material should be requested in an individual case.

Step 3: Balancing rights

Paragraphs 11 to 13 of the AG’s Guidelines outline principles that investigators and prosecutors need to be aware of when both the right to a fair trial and the privacy of complainants and witnesses are engaged. Paragraph 13 contains the fundamental approach that must be adopted by investigators and prosecutors when deciding whether it is necessary to request and/or process personal or private information from a complainant or witness to pursue a reasonable line of inquiry.

Suspect-centric approach

An effective strategy for investigating and prosecuting rape requires focus on the actions of, and tactics used by suspects. Prosecutors must therefore encourage investigators to take a suspect-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 highlights common types of offender tactics and behaviours. Prosecutors should also refer to the training podcasts on the suspect-centric approach to inform their work in this area.

Prosecutors should advise investigators to pursue reasonable lines of enquiry to assess a suspect’s behaviour before, during and after the alleged assault. This may include an analysis of the suspect’s digital communications, analysis of their behaviour from CCTV or direct witness evidence. This approach to case building is aimed at building the strongest case possible whilst ensuring that the investigation is fair.

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. This section should be read alongside chapter 30 of the Disclosure Manual on digital material. That outlines in more detail the four principles relevant when reviewing a reasonable line of enquiry:

  • 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.

    A reasonable line of inquiry will depend on the facts of, and the issues in, the individual case, including any potential defence. 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.

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

  • Principle Three: The witness/complainant should be kept informed.

    The witness/complainant should be told that the prosecution will keep them informed about any decisions made about disclosure, including how long the investigators will keep the device; what it is planned to "extract" from it by copying; and what thereafter will be "examined", potentially leading to disclosure.

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

    If a witness does not give the investigator access to their mobile telephone or other device, the investigator should consider the circumstances and explain to the witness 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.

    Smartphones contain all kinds of data including highly sensitive material such as medical details, bank details and private photographs. The decision to obtain and review material on a digital device should not be taken lightly. The Court of Appeal recognised in Bater-James and Another [2020] EWCA Crim 790 that “the loss of such a device for any period of time may itself be an intrusion into … private life, even apart from considerations of privacy with respect to the contents”.

Reasonable lines of enquiry in cases involving large quantities of material

RASSO cases can involve large quantities of material. A thinking approach is crucial. 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.

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. A record should be made in the DMD.

The Disclosure Manual and the Attorney General’s Guidelines on Disclosure emphasise 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.

Defence Engagement

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 and searches refined. 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.

Robust defence engagement is particularly important in cases subject to custody time limits. Proactive management of these cases includes setting out a clear disclosure strategy and escalating defence non-engagement or compliance at interlocutory hearings from an early stage in the case.

Prosecutors should consider whether it is appropriate to seek engagement with the defence at the pre-charge stage. This may be beneficial when deciding upon reasonable lines of enquiry or when seeking to overcome barriers to obtaining potential evidence, for example, obtaining witness contact details.

Annex B of the Attorney General’s Guidelines on Disclosure sets out the process for any such pre-charge engagement.

Material that may constitute a reasonable line of enquiry

There are different types of material that may constitute a reasonable line of enquiry. The below sections detail specific types which may be encountered during a RASSO case.

1. Previous allegations made by the complainant

This section should be read alongside Chapter 12: The sexual history of complainants, which concerns the admissibility of the sexual history of complainants and complainant bad character in court proceedings. Chapter 12 includes cases and judgements from the senior courts showing the fact that previous allegations made by complainants should be considered at the outset of a case.

The position regarding previous allegations by victims is the same as for other types of material in that:

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. As the Court of Appeal stated in R v Bater-James [2020] EWCA Crim 790 "there must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation”.

Prosecutors should consider any basic information provided by policing partners on previous allegations and before seeking any additional information on these allegations (for example requesting specific case file materials) satisfy themselves that the material sought would constitute a reasonable line of enquiry based on the issues in the case. Prosecutors should always be explicit about what they are looking for when considering pursuing information in relation to a previous allegation and why this is required for the specific case, rather than speculatively requesting materials by default.

Once material is in the possession of the police and may be relevant to the investigation it will need to be retained and its handling will be governed by the CPIA Code of Practice (see chapter 4 of the Disclosure Manual: Disclosure – relevance, recording and retention).

While the legal tests for admissibility and reasonable lines of enquiry tests are different it is important that, when determining whether additional information about a previous allegation is necessary, prosecutors are mindful of the high threshold for previous allegations to be admissible in court proceedings, namely whether there is a proper evidential basis on which the court or jury could properly conclude that the previous allegation was false. This is because prosecutors should only seek additional information when they are satisfied it that it could have a bearing upon a live trial issue which, depending upon the circumstances of the case, may include the credibility of the complainant as a witness in the case.

Prosecutors should be mindful of the various misconceptions and assumptions that arise in relation to previous allegations. In the case of Hurley [2025] EWCA Crim 642 the Court identified several specific considerations which will not in and of themselves amount to a proper evidential basis for the eventual admittance of previous allegations as bad character of the complainant some of which are listed below:

  • That a previous allegation has been made by the victim against the current suspect or anyone else
  • That an offence was formally reported to the police;
  • That an offence was not reported to police;
  • The time it took to report the offence including whether a report was delayed;
  • Any changes in a victim’s support during the investigation or any subsequent prosecution;
  • That an allegation resulted in a charge;
  • That the allegation did not result in a charge;
  • The fact that the alleged perpetrator denied the offence;
  • The fact that the alleged perpetrator of the previous offence was acquitted at trial of the offence.

2. Victim Counselling Records where higher thresholds apply

Under section 44A of the Victims and Prisoners Act 2024, counselling notes are subject to a higher test that goes beyond relevance to a reasonable line of enquiry and, furthermore, must be considered not necessary or proportionate, unless and until this presumption can be rebutted. In January 2026, a new Code of Practice for Victim Information Requests was introduced, pursuant to the act. This code describes the approach to take when applying the further test to consider and outlines steps necessary to rebut the presumption. This needs to take place before a third party material request can be made for victim counselling records.

Counselling Records are defined in the Code of Practice as “A service, remunerated or voluntary, which offers psychological, therapeutic or emotional support aimed at improving a victim’s emotional, psychological and mental health.” (paragraph 79). It is important to note that records compiled by an Independent Sexual Violence Advisor (ISVA) are captured by this definition.

The new Code of Practice reaffirms that a third-party material request about a victim should only be made when it is necessary, proportionate and in pursuit of a reasonable line of enquiry, as a last resort and only when all other less intrusive methods to obtain the information have been exhausted.

Further, in relation to counselling information requests, these must only be made when the information sought is likely to have substantial probative value to a reasonable line of enquiry being pursued.

The Code of Practice provides points to consider on general necessity and proportionality of third-party material and sets out a rebuttable presumption that requests for counselling information are not necessary and proportionate.

Paragraph 84 of the Code of Practice provides the following considerations for rebutting this presumption, noting that these factors should be taken into account together with any other relevant information pertinent to the case:

  1. whether there is compelling evidence or reasonable grounds to suggest that the information contained within the counselling notes is likely to have substantial probative value (see paragraph 86-93) to the investigation and cannot be reasonably obtained through other means
  2. whether all less intrusive alternatives for obtaining the required information have been exhausted or deemed impractical
  3. whether there are any specific circumstances or factors unique to the case that justify accessing the counselling notes
  4. whether they have carefully considered the potential consequences for the victim’s privacy and wellbeing, as well as the potential views of the victim, and have concluded that the benefits of accessing the counselling notes outweigh these concerns
  5. whether there is information to suggest the failure to obtain the records could adversely affect the accused’s right to a fair trial.

In relation to the substantial and probative value test, paragraph 88 provides that the “test focuses on the likelihood that the evidence will add significant value or substance to the point being investigated. It goes beyond just relevance to assess the weight and worth of that evidence in the context of the investigation, imposing a higher threshold than for other types of material and going beyond the relevance test set out by the CPIA Code of Practice”.

Paragraph 90 of the Code of Practice sets out the following non exhaustive factors to consider when assessing substantial probative value. These are whether the information sought within the counselling records:

  1. relate to key aspects of the investigation essential for advancing the reasonable line of enquiry being pursued
  2. is likely to provide meaningful support to the investigative narrative such as corroborate or refute the existing narrative
  3. has the potential or is likely to substantially contribute to establishing or refuting critical facts of the investigation
  4. might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused
  5. there is likelihood it may significantly influence the outcome or direction of the case under investigation, considering its potential to corroborate or contradict other evidence gathered.

Paragraph 91 of the Code of Practice sets out that the following factors are not sufficient on their own to establish whether the information within the counselling records is likely to have “substantial probative value”:

  1. that the record exists
  2. that the records relate to therapy or counselling that the victim has received or is receiving
  3. that the records merely: relate to the incident under investigation, and / or contain an account of the facts of the offence by the victim
  4. that the relevance of the counselling records to the investigation is purely speculative or conjectural
  5. that there is speculation that the records may relate to the credibility or reliability of the victim, solely based on their receipt of counselling
  6. that the records may relate to the reputation of the victim
  7. that the records relate to the sexual activity of the victim with any person, including the accused
  8. that there is a possibility that the records may reveal allegations, unrelated to the offence under investigation, of abuse to the victim by a person other than the accused
  9. that the records were made close in time to a complaint or the activity forming the subject matter of the investigation

Prosecutors should ensure that they are aware of the processes the Code of Practice describes where information is being requested, which now includes written notice and seeking the views of a victim. Part 8 of the Code deals with its use concerning vulnerable victims, children and adults without capacity.

3. International Enquiries

The obligations under the CPIA Code to pursue all reasonable lines of enquiry apply to material held overseas. Where it appears that there is relevant material, the investigator or prosecutor must take reasonable steps to obtain it, either informally or by making use of the powers contained in the Crime (International Co-operation) Act 2003, the Council of Europe 1959 Convention on Mutual Assistance in Criminal Matters and any international conventions. This may necessitate the drafting of an International Letter of Request and further information can be found in the International Enquiries guidance.

Foreign states may refuse to make material available or may only allow prosecutors to inspect material without making a copy. For these reasons, paragraph 49 of the Attorney General’s Guidelines on Disclosure 2024 states that there is no absolute duty on the prosecutor to disclose relevant material held overseas by entities not subject to the jurisdiction of the courts in England and Wales. The obligation on the investigator and prosecutor under the CPIA Code is to take reasonable steps.

4. Material from 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 Disclosure of information between family and criminal agencies and jurisdictions: 2024 protocol. The protocol is divided into three distinct parts:

Part A: disclosure from the police to family proceedings

Part B: disclosure sought by an investigator

Part C: linked directions hearings

An alleged abuser may provide evidence in the course of family proceedings which has the effect of incriminating them. Whilst section 98(2) Children Act 1989 places some restrictions on the admissibility in criminal proceedings of statements or admissions made in the course of family proceedings, it does not prevent the police from making use of them in the course of a criminal investigation.

The police may put relevant statements and admissions made in the course of family proceedings to a suspect in an interview. If these statements and admissions are then adopted by the suspect, they become admissible in the criminal proceedings (subject to the usual provisions of sections 76 and 78 of the Police and Criminal Evidence Act 1984). Furthermore, any statements made by a suspect in Family Court proceedings which are inconsistent with evidence provided by the suspect in criminal proceedings can be put to them during cross examination.

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 must 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, that is, 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 Guidelines on Disclosure.

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 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's/witness’s response must be recorded and communicated to the prosecutor. It must also be recorded on the relevant disclosure schedule. Maintaining the complainant's/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 2025 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. (for example, 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 (that is, 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, that is, 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. Further information about obtaining material via a witness summons is contained in the Disclosure Manual chapter 5.

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:

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

Examples of material that may weaken a prosecution case includes:

  • Material that casts doubt upon the accuracy of a prosecution witness;
  • Material that casts doubt upon the reliability of a confession;
  • Material that undermines the credibility of a prosecution witness;
  • Material that might assist the accused to cross-examine a prosecution witness;
  • Material that may support a defence that is being raised or that may be apparent from the papers;
  • 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 school, local authority or 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, often accompanied with comments revealing a “chaotic lifestyle”, alcoholism, or a troubled background. Most children misbehave; but not every child has their misbehaviour recorded. Just because a complainant may have lied at school for example does not mean that they have lied about the alleged crime. Lies may be relatively minor and not untypical of a troubled teenager, for example, lying to a teacher about smoking, shoplifting, or taking money from the suspect. 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 and it should be part of a strong case strategy. Undermining factors might be that the mother, grandmother, or aunt accuses the complainant of lying about the offending. However, when that person is also related to the abuser, as wife or mother, it is difficult to see why their word should be believed over that of the complainant. The important point is to consider the overall credibility of the account rather than to focus on a particular aspect or aspects of the lies. 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 whether the material satisfies the disclosure test and seeks the guidance from the court.

Further guidance can be found in the Disclosure Manual.

Chapter 5: Case Strategy in RASSO

Introduction

Prosecutors need to develop strong case strategies from the outset. 

Bad Character evidence

Prosecutors should consider whether a bad character application should be made in relation to previous convictions or other reprehensible conduct. Bad character applications should be proactively considered at the pre-charge stage, as part of a strong case strategy.

To adduce bad character prosecutors need to consider, and explain as part of their case strategy, which of the 7 gateways in s.101 CJA 2003 applies and why. The gateways are as follows:

  1. All parties to the proceedings agree to the evidence being admissible
  2. The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it
  3. It is important explanatory evidence
  4. It is relevant to an important matter in issue between the defendant and the prosecution, which includes:
    • Whether the defendant has a propensity to commit offences of the kind with which he is charged, except where such propensity makes it no more likely that he is guilty of the offence (s.103(1)(a) CJA 2003)
    • Whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect (s.103(1)(b) CJA 2003)
  5. It has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant
  6. It is evidence to correct a false impression given by the defendant
  7. The defendant has made an attack on another person's character.

If any of the gateways apply, the evidence is automatically admissible unless, for s.101(d) or (g), it has such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In R v Lewis [2014] EWCA Crim 48 (para 128) it was held that “it is important to remember that an assessment of the fairness of proceedings should not only embrace consideration of fairness to the defence but also fairness to the prosecution. The second aspect of that balancing exercise is sometimes insufficiently considered.”

It is important for prosecutors to adopt a proactive and thinking approach to bad character. This may include working at an early stage with police partners to assess convictions, cautions and non-convictions and exploring whether they could be relevant to a bad character application, even if it is not a like offence.

The most obvious type of bad character is the defendant’s previous convictions of a similar nature to the offence with which the defendant is charged. These are often admitted under gateway (d), on the basis that they are relevant to an important matter in issue, in that they demonstrate that the defendant has a propensity to commit offences of that kind. Prosecutors should bear in mind that such applications can also be made in relation to matters which have not been the subject of convictions, for example acquittals at trial for similar offences or matters which have never been charged. For example, in one case involving prolific non recent offending by an uncle against his niece, the prosecution made a successful bad character application to admit the statement of another niece of his who alleged that he had kissed her in an inappropriate manner but had never reported this to the police. This was admitted on the basis that it was relevant to an important matter in issue between the defence and prosecution, namely the erosion of familial boundaries to engage in sexual conduct initiated by the defendant who was in a position of trust as an older, trusted and respected family member.

In another case, a successful bad character application was made where the defendant was charged with rape and had been charged on two previous occasions with similar offending. The previous offending was not immediately apparent though as on one occasion he was acquitted of rape and on another occasion a basis of plea was accepted by the prosecution where he had pleaded guilty to assault occasioning actual bodily harm rather than a sexual offence. As part of formulating a case strategy at an early stage in the case, enquiries were made into both matters by the prosecutor. It transpired that the facts of the previous rape acquittal bore a real similarity to the facts of the offence with which he was currently charged. Further investigation about the assault charge showed that the circumstances were again similar, namely an attack on a stranger late at night. Although he was only convicted of assault, when the basis of plea was obtained, it showed that he had walked behind an unknown female late at night, pushed her to the ground and pulled her by the hair. He was detained by other members of the public, and the victim had eventually withdrawn support for the prosecution. Both incidents were admitted under gateway (d) on the basis that they were relevant to an important matter in issue, namely that the defendant had a propensity to commit offences of that kind.

It is important to remember that whether to make a bad character application and what it should contain must be considered on a case-by-case basis. The above scenarios are provided to demonstrate that prosecutors should adopt a ‘thinking approach’ and address the issue of bad character as part of their case strategy considerations.

The Court of Appeal in the 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. Prosecutors should always bear this in mind where there is more than one complainant, as it is generally of assistance at trial if the evidence of each complainant can be adduced in support of the other.

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 Early Advice stage.

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 of children 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 defendant’s 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.

Previous allegations/decisions not to prosecute

Prosecutors should always ask the police if there have been other allegations against the suspect, which have resulted in no further action (NFA), caution 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. This information may also support a bad character application and form part of a suspect-centric case strategy approach. This should be explored at the earliest opportunity with policing.

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 guidance on Reconsidering a Prosecution Decision and the requirement to seek CCP approval before reinstating a case.

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 removed the requirement that to be admissible the complaint had to be made as soon as reasonably practicable. 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. Prosecutors should review chapter 7 Tackling Rape misconceptions and assumptions on this matter.

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.

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.

Expert evidence

Expert evidence can have various uses, but it is important to think carefully about your case strategy before instructing an expert. The instruction of an expert should be a clear decision taken in the context of case strategy.

An expert should never be instructed just because the defence have instructed an expert. Careful consideration should be given as to whether:

  • The defence expert report received is admissible – it is compliant with Criminal Procedure Rules 2025 Part 19. Key things to consider are is the expert objective and unbiased; are they an “expert” in the field they are giving evidence on; are they reliable (what material/sources have they considered before making their conclusion); have they explained clearly the different opinions they were asked to consider and on what basis they have reached the conclusions they have.

If it would be better to cross-examine the defence expert rather than instruct our own expert, this might be the case where the conclusions of the expert are based simply on what the expert has been told by the defendant.

There will be cases where a prosecution expert agrees with defence expert or cannot rule out defence findings. Even where a prosecution expert cannot rule out what the defence expert has found, that is not necessarily fatal to the case. Where the prosecution expert leaves room for reasonable doubt, that room must be considered in the light of the other evidence in the case. Taken as a whole, there may be a realistic prospect of conviction where doubt cast on the defence case by an expert is combined with other evidence to challenge it. In other circumstances, even where experts agree, it is important to scrutinise the basis of that agreement. If both experts have accepted the account given by the defendant, but that account is capable of being successfully challenged (and the experts’ conclusions would fall away if the defendant’s account is not accepted) then there may be a realistic prospect of conviction notwithstanding agreement by defence and prosecution experts.

Automatism

Automatism is a common law defence. It is available where the person's consciousness was so impaired that they were acting in a state of physical involuntariness and had lost the ability to consciously control their actions such that they cannot be held culpable for the actions or omissions which followed.

There are generally two types of automatism:

  1. Insane automatism: this results from an internal cause or disease of the mind. In the Crown Court, if established, it results in a special verdict of not guilty by reason of insanity being returned. The court has a limited range of orders it can make upon such a verdict. In the magistrates' court this is a complete defence which, if proved, results in acquittal.

    Examples include epilepsy: R v Bratty [1963] AC 386; R v Sullivan [1984] AC 156, hyperglycaemic state due to not taking insulin for diabetes: R v Hennessy (1989) 89 Cr. App. R. 10, sleepwalking: R v Burgess (1991) 93 Cr. App. R. 41, arteriosclerosis: R v Kemp [1957] 1 QB 399.

  2. Sane or non-insane automatism: this results from causes other than a disease of the mind, namely external factors which led to a loss of control. This amounts to a complete defence and therefore it results in acquittal.

    Examples include reflex to being attacked by a swarm of bees: Kay v Butterworth (1945) 61 TLR 452, a blow to the head causing concussion: Hill v Baxter [1958] 1 QB 277, an injection of insulin: R v Quick [1973] QB 910. Sleepwalking may also occur from external causes, and this defence has been raised in sexual offence cases, sometimes described as "sexsomnia".

You can read more about automatism and how prosecutors should respond to it in the Mental Health: Suspects and Defendants prosecution guidance. 

Sexsomnia defence

Sexsomnia is being raised as a defence in RASSO cases with increasing regularity and it is important that prosecutors are ready to carefully scrutinise the defence and respond appropriately.

From an early point in the case a prosecutor can identify the potential for a defence of sexsomnia to be raised at trial, by examining the facts of the case carefully. If a prosecutor makes this finding, a suspect-centric approach will necessitate the following questions:

  • Does the suspect’s narrative make sense alone and in the context of the wider evidence?
  • What other evidence is available that would suggest that he was aware of his actions and that they were consciously undertaken, for example, were his eyes open?
  • Did any conversation take place, how elaborate were his actions and what happened afterwards;
  • Additionally, were any messages or communications sent that demonstrate that he was aware of his actions?

Focus keenly on the suspect’s words, actions and behaviours before, during and after the offence(s) and scrutinise them. It can also be the case that the defence of sexsomnia is raised by the suspect claiming the victim has sexsomnia and therefore the defendant claims a reasonable belief in consent.

The defence will need to obtain and serve a report before they are able to rely on “sexsomnia” as a possible defence. Any expert will need to be a s.12 approved psychiatrist. The report will need to conclude if the defence is one of insanity - (often referred to as “insane automatism”) or automatism (often referred to as “non-insane automatism”) involving an external factor which causes a defendant to act involuntarily.

It is important at this point to form a plan for how to respond to the defence expert. In many cases, the defence expert report can be challenged based on quality issues alone, with no need to obtain a prosecution expert report. Remember that the burden is on the defence to establish that there is a proper evidential foundation for this defence, before the burden shifts to the prosecution. This must be based on expert medical evidence, and the judge will need to decide whether this burden has been met by the defence, before the defence of sexsomnia is allowed to go before the jury.

Once a defence report has been received, a prosecutor should scrutinise the report and identify any issues with it. Is the writer an expert in this field and if so, how? Do they identify whether the sexsomnia is categorised as non-insane automatism or insane automatism? The categorisation will result in different outcomes for the defendant. Insane automatism allows the court to make a limited range of orders, whereas non-insane automatism is a complete defence. Prosecutors should also check what diagnostic testing was used to make the diagnosis; whether the defendant was personally reviewed by the expert and whether their medical records, including mental health records, were analysed. At present, there is no agreed form of diagnostic testing for sexsomnia, amongst experts, which is a major issue for any expert to overcome when diagnosing a defendant with sexsomnia.

If it is determined by the prosecutor (after seeking advice from CPS senior managers) that the defence report has laid a proper evidential foundation for the defence, consideration will need to be given about whether a prosecution expert report is required.

If it is decided to instruct a prosecution expert, then it is essential that:

  • The expert is carefully chosen to ensure they have the requisite skills and experience to prepare the report
  • That the expert is provided with the same material as the defence expert
  • That the expert is given specific questions to answer in accordance with the facts of the case. In general, there are a number of questions which are likely to be relevant including:
    • Considering the expertise and qualifications of the defence expert
    • The history or no history of sleepwalking/similar incidents
    • Whether the number, variety and extended duration of the sexual activities and the behaviour of the suspect is consistent with the possibility of sexsomina
    • Is this a case of insane or non-insane automatism? 

Consideration should be given to the CPS guidance on the use of Expert Evidence.

It is possible to challenge expert evidence without calling an expert where the grounds of challenge are not the field of expertise. For instance, if an expert’s evidence is based solely on the suspect’s account – their expertise is sexsomnia but what can be challenged is the veracity of the account. There may be other lay evidence which is capable of challenging the expert’s conclusions.

Medical evidence

Medical evidence – and its availability - 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, or the time period between the offence and report means medical evidence is unavailable. Lack of injuries is not fatal to the prosecution case but jurors may consider a lack of injuries as indicative of consent, and so this should be addressed in the case strategy referring to the Tackling Rape misconceptions and assumptions chapter, and considering requesting judicial directions on this matter.

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 unable 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.

It is required 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 misconceptions with the jury with regards to issues such as the absence of injury. For example, prosecutors should consider calling an FME to explain to the jury that the absence of genital injury to the complainant does not mean that sexual intercourse did not occur, nor does it assist in determining whether it was consensual. Refer to chapter 7 on Tackling Rape misconceptions and assumptions if appropriate.

Forensic Evidence

Forensic evidence may provide crucial assistance with determining the key issues in the case and it is vital that where opportunities exist, investigators and prosecutors maximise the use of any available forensic evidence to build the strongest case. For example, DNA deposited may link the suspect to the crime or, in allegations of rape, confirm penetration has taken place.

Early communication is key and, where forensic evidence may be relevant to the issues in the case, investigators and prosecutors should always seek to engage directly with a forensic scientist/clinician with a view to identifying the most effective forensic strategy. Where evidential developments change the circumstances of the case in any material way, it is vital that the prosecution team revisits the forensic strategy in partnership with the expert to ensure that it remains fit for purpose.

There are a wide range of exhibit types, evidence types and techniques which may be appropriate for forensic examination in a RASSO case:

  • Exhibit Types:
    • Intimate swabs (vaginal/anal)
    • Other body swabs
    • Underwear and other clothing
    • Bedding
    • Condoms
    • Urine
    • Sanitary wear
    • Other, for example, cars
  • Evidence Types:
    • Semen
    • Saliva
    • Touch DNA
    • Blood
    • Other body fluid
    • Hairs
    • Damage, for example to clothing
    • Toxicology
    • Other trace evidence, for example, fibres
  • Techniques:
    • Visual examination
    • Chemical testing
    • Recovery of trace evidence (hairs, fibres, debris)
    • Enhanced search and recovery techniques
    • DNA profiling, including Y-STR profiling
    • Statistical analysis and results interpretation.

In cases where a suspect has been identified, it will be useful for the investigator and prosecutor to conduct an early discussion around forensic strategy to prevent further work by the scientist at a later stage.

A clear understanding of the accounts provided by both complainant and suspect is key to ensuring the value of the forensic examination as this allows them to conduct an efficient examination focussing on the most appropriate exhibits i.e. those items most likely to assist with the issues in the case. The following information will be relevant in most sexual offence related cases. The list is not exhaustive and will depend on the case circumstances:

•    The time and place the incident occurred
•    The number of people involved
•    The number of and types of sexual act and in what order they occurred
•    Whether ejaculation occurred
•    What was being worn/how clothing was removed/placed back on
•    Whether clothing was washed
•    The items that have been recovered
•    The time of the medical examination (both victim and suspect)
•    Whether victim or suspect washed prior to medical examination
•    Whether victim or suspect have any injuries
•    Details of any previous sexual activity within the last ten days
•    Medical examination forms/notes
•    Any potential for other evidence types
•    Victim’s first account/statement and suspect’s account

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. Overcoming any misconceptions and assumptions related to forensic evidence should form part of a strong case strategy.

Forensic examination can provide evidence relevant to key issues in the investigation:

  • identification of a suspect
  • 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
  • interpretation of levels, location & distribution of body fluids/DNA in relation to the two versions of events.

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.

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 prosecution 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 s.10 admissions but where the evidence is in issue, prosecutors must ensure compliance with the Criminal Procedure Rules.

Detection of transferred material

In the absence of a specific allegation by the victim and in investigative cases, it is not unusual that the scientist has to consider a case examination strategy that will encompass the detection and recovery of any transferred material. In many sexual offence cases, the presence of semen is likely to be most impactive, and the examination strategy will consider screening the exhibit for semen initially. If it is anticipated that the transfer of saliva is more likely given the case circumstances, examining the exhibit for the presence of saliva can be prioritised.

The presence of visible body fluids such as blood, faeces and vomit is likely to be initially detected during an appropriate visual search.

Semen, saliva and urine are frequently non-visible, meaning the forensic examination strategy must be based on the known circumstances of the case. This may direct which of these body fluids is most likely to have been transferred at a detectable level and/or which body fluid is likely to be the most significant if detected.

DNA

DNA-17 is the DNA profiling used routinely in forensic casework. The use of DNA-17 provides full compatibility with the UK National DNA Database for comparison or searching as appropriate. DNA-17 analyses 16 areas of DNA and a further area to establish the biological sex of the donor.

Mixed DNA profiles

When a crime profile contains DNA from more than one contributor it is called a mixed DNA profile. The ability to determine the DNA profile of any of the individual contributors, or to carry out a statistical analysis of the likelihood that a particular DNA profile is present in the mixture, depends on its nature and complexity.

Scientists have always been able to assign a likelihood ratio to some so called ‘simple’ mixtures, where there is a clear major contributor who is represented at all loci. However, if a mixture contains DNA from more than one person and/or the profile is low level i.e. weak and incomplete, or it is the minor contributor who is the person of interest, then a software solution is required to calculate a likelihood ratio.

For a complex mixed DNA profile where it is the minor portion of the mixed result that is of significance, or where there are multiple contributors where all or almost all of the person of interest’s components are represented but it is not suitable for a routine match probability or routine likelihood ratio calculation, consideration will be given to Advanced statistical evaluation, using ‘probabilistic genotyping’ software. This evaluation uses specialist statistical software to test and assess many thousands of possible ways a mixed DNA result may be obtained – far more than could ever be done by hand.

Y-STR analysis

Y-STR analysis is a highly sensitive DNA profiling technique and in certain circumstances it may allow for the detection of male DNA which cannot be detected using DNA-17.

In particular, this can be helpful in male/female mixtures where a low level of male DNA is masked by an overwhelming female contribution – this scenario is frequently encountered in rape and sexual assault cases.

The sensitivity of Y-STR analysis is such that it has been successfully used to detect male DNA in digital and/or penile penetration cases where no semen is present and in sexual assaults by vasectomised or azoospermic males where no sperm are present.

Touch DNA

Sampling for ‘touch’ DNA can be considered in cases where the circumstances indicate that no body fluid transfer has occurred. Specific information is required to determine which areas of clothing are sampled as the larger the area sampled; the more background DNA would be expected from the donor/wearer. Touch DNA is usually recovered via small pieces of adhesive tape or swabbing.

Information is also needed regarding the nature of any legitimate contact between the individuals involved as this may raise the issue of secondary transfer. This is where two people have never been in contact, but DNA is transferred from one to another by a third surface such as both sitting on the same a chair at different times. This is a complex area which should be discussed with the scientist but can be addressed by detailed information and the taking of appropriate control samples.

Lower levels of DNA are generally expected to be obtained from touch samples than those levels detected from body fluids. In addition, there is an expectation of the recovery of potentially higher levels of DNA from the donor/wearer, which can cause mixed DNA profiles to be obtained.

Admissibility of DNA evidence

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.

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 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.

Injuries

The examination may assess any injuries present, including bruising, abrasions, and lacerations. The interpretation of injuries or their absence will depend upon many factors including the nature of the allegations, what is said to have happened and when, and the age and hormonal status of the victim.

Often the forensic clinician will only have brief details of the allegations on which to base their opinion. Where possible investigators/prosecutors should provide the forensic clinician with any updated version of events, including the defence account, prior to requesting an expert opinion.

Prosecutors should note that a lack of injuries is not evidence of consensual activity. If relevant, this misconception should be addressed within the case strategy.

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.

In general terms, most drugs can be detected in blood for up to approximately 12 - 24 hours and in urine for up to approximately 24 - 48 hours following last use/administration although this can be considerably longer in heavy/regular users and/or for some slowly eliminated drugs. Chances of detection mainly depend on the dose taken, type of drug used, frequency of use and individual’s rate of metabolism. Some types of drugs are eliminated very rapidly, that is, GHB may be entirely eliminated from the body in less than 12 hours, making them undetectable after this time, and some remain detectable for much longer especially if used regularly: that is, cannabis, some benzodiazepines and certain medications remain detectable for days or weeks.

Alcohol is rapidly eliminated from the body at an average rate of 19 milligrams per 100 millilitres per hour. It should be noted however that the rate of elimination can vary. Blood alcohol concentrations above approximately 350 mg/100 ml (mg%) can result in death from respiratory arrest and a concentration of around or above 150 mg/100 ml (mg%) can cause significant intoxication in the average social drinker.

It is not possible to determine the degree of impairment based purely on laboratory results. The specific effects that a drug or a combination of drugs and alcohol will have on a person are dependent upon several variable factors and it is not possible to determine the exact effects these could have had on an individual. Evidence from other witnesses (eyewitnesses, police officers, medical experts) and CCTV may assist, in demonstrating an individual’s behaviour at the time of the incident. The toxicology results should be used in conjunction with other available evidence.

The results of the analysis will represent the time of sampling, not the time of the incident. It is sometimes possible to undertake a “back calculation” on the measured urine or blood alcohol concentration to estimate blood alcohol concentration at the time of the alleged incident.

Drug Facilitated Sexual Assaults (DFSA)

In addition to alcohol there are various drugs which may be used during the perpetration of sexual 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 Hydroxybutyrate) – 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.

Evidence of psychological injury

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. It is important that the use of judicial directions is considered as part of case strategy to ensure the jury is properly directed. The long-held principle from R v Turner [1975] QB 834 is that expert evidence is only admissible where it is likely to supply information and material which is outside the jury's normal experience. There will be occasions when it is necessary for prosecutors to consider whether to call evidence of psychological injury. Prosecutors must carefully consider the position and they must understand the limitations of the evidence that can potentially be called.

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 case concerned charges of non-recent sexual abuse and the defence was that the complainant had fabricated the allegations. The trial issue was therefore factual denial. The Crown called evidence from a clinical psychologist who gave evidence that the complainant was diagnosed with a PTSD reaction called type two trauma. The trial judge allowed this evidence and the defence appealed on the ground that it was inadmissible. The Court held the evidence from the clinical psychologist was admissible 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. It was thus relevant material for the jury to take into consideration when considering the trial issue.

In R v ER [2010] EWCA Crim 2522 the prosecution had called evidence from a psychotherapist to attempt to explain the delay in reporting and to explain why the complainant had continued to associate with the defendant following the allegations. The Court of Appeal held that this evidence should not have been admitted and the expert’s opinion about whether the complainant’s behaviour was normal was inadmissible. In R v SJ, MM [2019] EWCA Crim 1570 the Court of Appeal held that it will only be in the rarest cases that expert or opinion evidence from a counsellor who has treated the complainant will be relevant or admissible. The starting point must always be that a counsellor's evidence goes only to fact.

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 consider requesting an expert’s report and in the appropriate circumstances should seek to introduce it as per Eden. Prosecutors must be extremely careful when considering whether to adduce this material and must bear in mind the evidential limitations of this evidence.

Guidance on the instruction of expert witnesses is available.

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 is available.

Chapter 6: Applying the Code for Crown Prosecutors to RASSO

Introduction

The starting point for all prosecutions is the Code for Crown Prosecutors (the Code), and no prosecution guidance replaces it or takes precedence over it. Prosecutors must ensure that the law is properly applied; that relevant evidence is put before the court; and that obligations of disclosure are complied with.

The evidential stage of the Code in Rape and Serious Sexual Offences

Key principles can be summarised as follows:

  • The evidential stage of the Code test requires prosecutors to conclude the finding that “there is a realistic prospect of conviction based on an objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward on which they might rely. It means that an objective, impartial and reasonable jury or bench or 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.”
  • These cases require a careful and balanced assessment of all relevant evidence, underpinned by a suspect-centric approach, to ensure that the right cases are prosecuted and there is a fair trial.
  • Prosecutors must not allow rape misconceptions and assumptions to influence their evaluation of evidence nor must they apply a ‘bookmaker’s test’ where an attempt is made to second-guess potential jury prejudice.
  • The Code requires prosecutors to consider what the defence may be and factors which may potentially undermine the prosecution case. This does not mean that points in the suspects’ favour will necessarily be fatal to the prosecution. If reasonable belief in consent is raised as a defence, prosecutors should consider the guidance provided in the Consent chapter.
  • Prosecutors must assess each undermining feature objectively and then the cumulative effect in the overall context of the strengths of the case. Ultimately, a prosecutor must decide if the combined effect of such factors after an objective analysis is such that the evidential stage is not met.
  • Prosecutors must not introduce a requirement for corroboration in the review process - one person's word can be enough (and often is) but the quality of the evidence must be assessed in the manner described above.
  • Prosecutors must consider whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and advise on any further reasonable lines of inquiry.
  • Once it becomes clear that a case is not going to meet the Code Test it is important to take a decision as soon as possible so that those impacted can be informed promptly.

‘One word against another’

Corroboration is not required as a matter of law.  Many RASSO cases will feature limited or no corroborative evidence. It is important to try and identify evidence in such cases, adopting a suspect-centric approach.

A suspect-centric approach is a model for conducting RASSO investigations and prosecutions that involves examining the actions of the suspect – before, during, and after the alleged assault – and focusing on their behaviour.

It is essential that prosecutors do not introduce a requirement for corroboration in their review process or identify ‘one versus one’ feature of the case as a negative in their assessment of the evidence. One person’s word can be sufficient to provide a realistic prospect of conviction. A jury can and does convict in such cases.

The issues may be lack of consent or reasonable belief in consent. Even in these cases, it is not unusual that the evidence consists of more than merely two opposing accounts of equal credibility. There may be evidence of the complainant having sustained injuries; the suspect’s account is implausible or is undermined by other evidence; or there are partial admissions which support that complainant’s account. First complaint, manner and demeanour, and consistency may also be important.

Where is it two opposing accounts then a jury will look to other factors to help decide whether the prosecution has proved its case. A suspect-centric approach is important here, informed by a strong and considered case strategy. The review should disregard factors that are irrelevant or based on misconceptions and assumptions. We should expect juries to be properly directed about any matter that might give rise to misconceived assumptions (for example, delayed complaints) – and prepare our case strategy accordingly. It is important to consider what judicial directions may be of benefit to a case and consider requesting these as part of case strategy.

The defendant’s interview

The prosecutor must consider the account provided by the suspect in interview. This will help to identify the issues in the case and will assist in establishing what reasonable lines of enquiry should be pursued. Prosecutors should assess the credibility and reliability of the suspect’s account, adopting a suspect-centric approach, by considering all the evidence available. Prosecutors should be aware that the jury is entitled to reject the suspect’s account based on the complainant’s evidence alone.

When reviewing a case prosecutors should consider the potential significance of a no comment interview or an initial failure by the suspect in interview to admit key facts, such as sexual activity prior to the return of forensic evidence. Where these circumstances apply, this is likely to strengthen the prosecution case and an adverse inference may be drawn by the court.

There will be occasions where the suspect is telling the truth about some things but lying about others. As with inconsistent witnesses, the prosecution can rely on the parts of the suspect’s interview which help the prosecution case (for example, the fact of sexual activity) and reject the parts the prosecution say are untrue (for example, a suspect’s reasonable belief in consent).

Contamination and collusion

The issue of potential contamination and collusion arises frequently in multi-victim child abuse cases (for example, where all the children are from the same family or were at the same school). Prosecutors must consider whether there is any evidence of contamination or collusion that may fall to be disclosed or that may impact on the evidential stage of the Full Code Test. However, they should avoid unsubstantiated speculation. Prosecutors must view the evidence they have objectively as each case is determined on its own facts.

Credibility, reliability and the approach to inconsistency

Prosecutors should consider whether there is any evidence that suggests the witness’s account is not credible or plausible. However, it is essential that misconceptions and assumptions do not play a part in this assessment.
Jurors are bound to consider internal and external consistency, particularly where there is no other direct evidence. It follows that prosecutors should consider the likely impact of any inconsistencies. Evidence of inconsistency does not necessarily mean that an account is unreliable or lacking credibility and prosecutors should be aware why inconsistencies may be present due to trauma:

  • It is important to distinguish between actual inconsistency and potential inconsistency.
  • Potential inconsistency encompasses two main possibilities (neither of which should be elevated to the status of actual inconsistency), described, for these purposes, in these terms:
    • apparent inconsistency, where the point depends on the reliability of the report against which an account is being compared and
    • presumed inconsistency, where, for example, a jury may be invited to conclude that an action is inconsistent with a state of mind being described.
  • With apparent inconsistency it is important to consider the possibility that other reports may not be accurate, independent or reliable - not every apparent inconsistency is real.
  • In any event the mere fact that a complaint emerges in an inconsistent way does not mean it is untrue. There are a number of reasons why a complaint may emerge in an inconsistent way and those are matters on which a jury may be directed including the impact of trauma on memory (see section The impact of trauma below). Requesting relevant judicial directions on this matter should form part of a strong case strategy.
  • With presumed inconsistency it is critical that prosecutors do not apply misconceptions and assumptions: juries would be warned not to do so.
  • It would, though, be wrong to ignore levels of inconsistency which, even with the benefit of a warning about misconceptions and assumptions, are nonetheless likely to prove a significant cause of concern to any jury.

The impact of trauma

Prosecutors need to be aware of the impact of trauma for many reasons, including:

  • to ensure the quality of prosecutor decision-making is as informed as possible
  • to highlight case building opportunities

Trauma does not have a uniform impact on victims. In order to evaluate evidence in accordance with the Code, prosecutors need to understand the complexities surrounding the impact of sexual assault and specifically the impact of trauma on memory, behaviour and demeanour. It may also impact on candour, for example where a complainant is reluctant to disclose full details of the incident. The evidential stage of the Code requires prosecutors to consider whether evidence is reliable or credible. To reach a Code compliant decision, prosecutors will need to be aware of all the potential impacts of trauma to fairly assess the credibility and reliability of the complainant.

Where, for example, there are inconsistencies in the recorded accounts of complainants (for example, between the initial account provided to the first response officer and the subsequent ABE interview), prosecutors lacking an understanding of the neurological impact of trauma and how it can account for differences in the way an incident is recalled, disclosed or developed by a complainant, may reach erroneous or unfair conclusions about the reliability and credibility of the complainant’s evidence.

When a person first reports a sexual offence, they may be upset, embarrassed, possibly frightened or angry. They  may say the most recent thing that happened and if there has been a series of events, this won’t always be the most serious incident; they may only give half the story because they don’t know how the listener will react; a young person or a child may deny that anything happened at all, through shame or fear of the consequences. Prosecutors cannot assume that at this early stage the complainant is always able to give a coherent, chronological account for evidential purposes.

By the time they give their ABE interview, he or she may have adjusted to the idea of speaking out about what happened; they will have begun to gather and order their memories and most importantly, they are taken through their account by a trained interviewer who will guide them into giving a full account in a chronological order specifically for use in a criminal trial. However, even then, if there have been a series of rapes, perhaps over a long period of time, or for other reasons it may still not be possible for a complainant to recall precisely what happened and when. It is important that each case is considered on its own merits and the account must be considered in the context of all the other evidence.

Whilst trauma is normal and will not always result in a diagnosed mental health condition, studies point towards there being a high prevalence of PTSD diagnoses following sexual assaults, impacting upon a significant proportion of victims. A Havens and UCL study published in 2018 included the finding that 80% of the young female victims of sexual assault were diagnosed with a mental health disorder four to five months after the incident.

The general position is that evidence of the psychological effects of sexual assault is inadmissible at trial if it is being used to bolster credibility and reliability but prosecutors should be aware that there have been cases where such evidence has been deemed to be admissible, such as R v Adam Eden [2011] EWCA Crim 1690. In this case the defendant denied sexually abusing the complainant and claimed her allegations were a complete fabrication. The complainant was examined by a forensic psychologist who reported that she had symptoms consistent with prolonged sexual abuse. Because the evidence was presented in a way that did not involve an assertion that the complainant’s evidence was true – only that it she had symptoms consistent with sexual assault – the court concluded that the expert evidence did not amount to oath-helping. It was merely relevant material for the jury to take into consideration when considering where the truth lay.

Where there is a danger that the psychological effects of the sexual assault will lead the jury to make unfair assumptions about the credibility of the victim’s account and the prosecutor is satisfied that expert evidence on the question cannot be adduced, consideration should be given to how that risk can be mitigated through the use of relevant judicial directions on the dangers of assumptions in sexual offences cases contained in chapter 20.1 of the Crown Court Compendium.

Psychological evidence can also be important in wider management of the case, for example in giving prosecutors a greater understanding of complainants and their needs. This evidence can then help with providing supporting material for special measures applications and supporting policing colleagues in delivering high quality ABE interviews informed and planned around the complainant’s needs. Prosecutors should consider type of expert evidence in line with Case Strategy Principle 5: The full picture: understanding the human context. Prosecutors are referred to the Psychological Evidence Toolkit for Prosecutors which explores a range of difficulties some of which precede and some of which may arise as a consequence of the sexual assault.

Prosecutors must have an understanding of the vulnerability of victims and the impact of trauma and when evaluating a case and should refer to the Toolkit for prosecutors on VAWG cases involving vulnerable witnesses which sets out the issues to consider relating to a vulnerable victim’s account and provides guidance in relation to how offenders might exploit these vulnerabilities to avoid detection.

The Public Interest stage of the Code in Rape and Serious Sexual Offences

While a prosecution does not automatically follow if there is sufficient evidence, in cases of rape and sexual offending a prosecution will usually take place due to the seriousness of the offending.

There are some specific and limited exceptions to this and prosecutors should consider especially offending by children, and how to consider if the evidential and public interest stage of the Code are affected by the victim no longer supporting case.

Paragraph 4.9 of the Code sets out the factors a prosecutor must address in their review when considering whether it is in the public interest to proceed with a prosecution.

Rules governing referrals and notifications to Chief Crown Prosecutor (CCP)/Deputy Chief Crown Prosecutor/DCCP) and briefings to the Director of Legal Services (DLS)

Prosecutors must be familiar with the internal rules governing authorisation to charge, case handling decisions and briefings to the DLS which can be found in the Referrals, approvals and notifications guidance.

Out of court disposals

Any decision to resolve a case by way of an out of court disposal will depend on the circumstances of the case. Prosecutors should refer to the Director's Guidance on Charging 6th Edition for additional information.

When considering diversion in youth cases prosecutors should refer to the Youth Cautions section in the Children as suspects and defendants guidance.

Chapter 7: Tackling rape misconceptions and assumptions

Rape misconceptions and assumptions

Rape misconceptions and assumptions are beliefs and attitudes people have specifically about rape and sexual violence that are commonly and persistently held yet, may be factually inaccurate.

Rape misconceptions and assumptions must play no part in the prosecutor’s decision-making process as per the case of R (FB) v DPP [2009] EWHC 106 (Admin). In this case involving an allegation of physical assault prosecutors erroneously offered no evidence having concluded that the complainant’s mental health condition made him an inherently unreliable witness. Instead prosecutors must adopt a forensic and objective analysis of the case and proceed on the basis of a notional jury which is wholly unaffected by any misconceptions or assumptions, which will act in a rational way and will faithfully follow directions on the law.

It is however crucial that misconceptions and assumptions are identified and addressed where they arise in order to ensure a proper case-strategy and effective advocacy when presenting a case at trial. Some behaviour may seem counter-intuitive and require explanation as part of the case building strategy. Research suggests that regardless of whether misconceptions and assumptions are raised during the trial, jurors still draw upon these in their deliberations. The case strategy should proactively address the relevant misconceptions, tailoring the rebuttal to the specific factors of the case. In some instances as part of a strong case strategy it may be most effective to address and overcome any misconceptions and assumptions head on in the presentation of the case. This should be considered on a case by case basis alongside counsel as part of case strategy.

Annex A provides detailed (although not exhaustive) information on tackling assumptions which might be presented to prosecutors within their work. It provides examples as to how to overcome these misconceptions and assumptions through case strategy. It is recommended that prosecutors regularly review this Annex and that it forms part of case strategy discussions.

Important points to note when considering this document:

  • The document is designed to be accessible and practical - you can use the hyperlinks within Annex A to find information relating to the specific misconception(s) which are relevant to your case.
  • All factors should be viewed with an understanding that there is no typical rape victim or perpetrator and no single response to rape and sexual abuse.
  • A person’s experience of rape is unique and might be impacted by how it intersects with inequalities they may face in relation to aspects such as sex, age, disability, gender identity, race, ethnicity, religion or belief and class.
  • An exhaustive list of all possible misconceptions and assumptions surrounding rape is not provided. In reality, they can overlap and may be deployed subtly.
  • The gender of the victim and offender will impact the way each misconception operates, as will the trial issue, for example, factual denial, consent. Rebuttals should be tailored to the specific details of each case.
  • Victims themselves may hold misconceptions related to rape and their own abuse, including not immediately recognising their experience as rape.
  • Links are provided with other relevant sections within this legal guidance including issues relevant to particular groups of people.

Many RASSO cases will feature limited or no corroborative evidence. One person’s evidential account will often be sufficient to provide a realistic prospect of conviction and result in a guilty verdict. A complainant’s account given under oath and tested in cross-examination can be compelling evidence, However, jurors are likely to turn to other factors, including misconceptions and assumptions, when they believe that there is limited evidence for them to consider. The fact that a person's account is evidence should be emphasised to the jury to dispel the belief that evidence is solely physical/tangible material. Addressing this can help prevent jurors from hypothesising and turning to misconceptions and assumptions to fill in perceived 'gaps' in evidence.

In Miller [2010] EWCA Crim 1578, the Court of Appeal endorsed the use of properly tailored directions by judges to counter the risk of stereotypes and assumptions about sexual behaviour and reactions to non-consensual sexual conduct. The direction may be given at the outset of the case or as part of the summing up (Crim PR Rule 25.14). The judge should discuss the proposed direction with counsel. If prosecutors feel a particular direction is required, this should be requested at the outset of the trial. Prosecutors should highlight any necessary directions, or complex areas of the case which may require a direction, within the trial strategy. It is recommended that in most instances the prosecution should request a judicial direction to counter misconceptions and assumptions. Directions in relation to sexual offences can be found in Section 20 of the Crown Court Compendium Part 1: Jury and Trial Management and Summing Up. The guide provides useful statements and examples which we seek to draw upon when countering misconceptions. The guidance states: “There is no typical rape, typical rapist or typical person that is raped. Rape can take place in almost any circumstance. It can happen between all different kinds of people. And people who are raped react in a variety of different ways.”

In recent years, linked to technological advancements (for example, online dating, use of social media, sending of sexual imagery and messages and the increasing sophistication of AI), there have been dramatic and rapid changes in sexual behaviours and encounters. Reflecting these changes, RASSO prosecutions are increasing in complexity. Technological advances and changes in sexual behaviours have created new ways for misconceptions and assumptions to manifest, and increased the risk of these arising in rape cases in relation to the complainant, the offender, consent issues and/or the circumstances of the alleged offending.

Chapter 8: Key Legislation and Offences

Selecting charges

When choosing which offences to charge, prosecutors should choose the most appropriate offence to fit the circumstances of the case, taking account of the courts’ sentencing powers. Consideration should be given to Case Strategy Three: Selection of Charges, and prosecutors should watch a learning podcast on getting the charges right available here. Prosecution guidance should be consulted when selecting charges, alongside text books for caselaw to adopt a clear rationale for charge selection as part of a strong case strategy.

Counts on the indictment must:

  • Reflect the seriousness and extent of the offending supported by the evidence;
  • Give the court adequate powers to sentence and impose appropriate post-conviction orders; and,
  • Enable the case to be presented in a clear and simple way.

Prosecutors should consider this chapter alongside the Drafting the Indictment guidance.

Prosecutors should avoid using alternative counts where there is a clear complaint of rape. Where there are doubts concerning the issues (for example, if it is unclear whether the complainant was penetrated by a penis or another object) then an alternative of assault by penetration would be appropriate.

If the defendant denies any sexual impropriety at all, but there remains potential ambiguity about whether the conduct involved penetration, it may be appropriate to include alternative counts of assault by penetration and sexual assault.

The legislative framework

The Sexual Offences Act 2003 (the Act) came into force on the 1 May 2004 and applies to all offences committed on or after that date. Its purpose was to strengthen and update the law on sexual offences, whilst improving the protection of individuals from sexual offenders. In addition to repealing most, but not all, of the previous legislation and introducing new sentencing options there have also been changes to the maximum sentencing powers and changes to sentencing provisions.

Prosecutors must therefore consider not only which provision was in force at the relevant time but also whether the maximum sentence has changed. Where a count crosses the date of the change in maximum sentence then the lower maximum sentence will apply.

In cases where it is not possible to prove whether the offence occurred before or after 1 May 2004, section 55 Violent Crime Reduction Act 2006 applies. In order to rely on section 55, each offence should be charged in the alternative under the old and new regimes. It will be conclusively presumed that the time when the conduct took place was when the old law applied, if the offence attracted a lesser maximum penalty; otherwise, it will be presumed that the conduct took place after the implementation of the new law.

This guidance highlights key points and charging considerations for prosecutors when deciding on the most appropriate offence. It does not deal with all offences in the Act, nor the notification requirements or the civil preventative orders in detail.

Key dates

General

  • 27 August 1981 - Criminal Attempts Act in force
  • 20 September 1993 - Abolition of the presumption that a boy under 14 was incapable of sexual intercourse and therefore incapable of committing rape
  • 16 September 1985 - Maximum sentence for attempted rape increased from 7 years to life
  • 30 September 1998 - Presumption of dol incapax abolished
  • 1 May 2004 - Sexual Offences 2003 Act came into force. Sexual Offences Act 1956 and Indecency with Children Act 1960 repealed.

Sexual Offences Act 2003

  • 1 May 2004 - Sexual Offences Act 2003 came into force
  • 13 April 2015 - Section 15 amended to reduce the number of communications. It is not retrospective
  • 31 January 2024 - Online Safety Act 2023 amends the Sexual Offences Act 2003
  • 6 February 2026 - Data (Use and Access) Act 2025 amends the Sexual Offences Act 2003.

Online Safety Act 2023

31 January 2024 - New offence of sending a picture or photograph of genitals (cyberflashing), and amended revenge porn legislation replacing it with sharing intimate image offence.

Indecency with Children Act 1960

  • 2 July 1960 - Indecency with Children Act came into force
  • 1 October 1997 - Maximum sentence for offences against a child under 14 increased from 2 years to 10 years
  • 11 January 2001 - Section 1 Indecency amended to a child under 16 years (previously under 14 years).

Sexual Offences Act 1956

  • 1 January 1957- Sexual Offences Act 1956 came into force
  • 2nd July 1960 - The maximum sentence for indecent assault on a woman under section 12 increases from 2 years to 5 years if the victim is under 13 and her age is stated on the indictment
  • 16 September 1985 - The maximum sentence for s.14 Indecent assault on a woman is increased to 10 years for any age
  • 3 November 1994 - Non-consensual anal intercourse to be charged as rape (previously buggery)
  • 3 November 1994 - Maximum sentence for attempted buggery on boy under 16 increased to life
  • 3 November 1994 - Buggery between consenting adults aged 18 or over legalised.

Sexual Offences Act 2003 - definition of ‘sexual’

The definition of sexual is contained within section 78 of the Sexual Offences Act 2003 and applies to all offences in part 1 of the Act, with the exception of section 71 (sexual activity in a public lavatory).

Penetration, touching or any other activity is sexual if a reasonable person would consider that:

  1. whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
  2. because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

In deciding whether an activity is sexual look first at the nature of the activity. If the activity is by its nature sexual (for example, sexual intercourse, masturbation) then it is sexual for the purposes of the legislation.

Where the nature of the activity may or may not be sexual prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual.

Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.

Touching of clothing might be sexual as in the case of R v H [2005] EWCA Crim 732.

Sexual Offences Act 2003 - non consensual offences

Sections 1-4 deal with offences where the defendant engages in sexual activity with the complainant, without the complainant’s consent.

  • s.1 Rape
  • s.2 Assault by penetration
  • s.3 Sexual assault
  • s.4 Causing sexual activity without consent (non penetrative)
  • s.4(4) Causing sexual activity without consent (penetrative)
Code for Crown Prosecutors

Non-consensual offences under sections 1 - 4 Sexual Offences Act 2003 are so serious that a prosecution is almost certainly required in the public interest.

Where the offender is under 18 additional public interest considerations will apply. Prosecutors should refer to the guidance on prosecuting Children as Suspects and Defendants.

Rape (section 1)

Key points:

  • Rape is a crime of basic intent, and drunkenness is not a defence.
  • Section 1 Rape involves penetration of the vagina, anus or mouth by a penis, therefore a woman can only commit this offence as an accomplice.
  • Rape is an indictable only offence and carries a maximum of life imprisonment.

Charging practice:

  • Prosecutors should specify in the indictment whether the vagina, anus or mouth was penetrated.
  • Where penetration of more than one orifice occurs, separate counts of rape should be preferred.
  • The Court of Appeal in R v K [2008] EWCA Crim 1923 held that where it is unclear whether penetration was of the vagina or of the anus, it is permissible to allege penetration of “the vagina or the anus”. The jury will be entitled to convict if they are sure that there was non-consensual penetration of one or the other by the defendant with his penis.
Assault by penetration (section 2)

Key points:

  • There must be penetration of the vagina or anus but not the mouth.
  • Penetration can be with any part of the body (for example, finger, tongue, toe) or by anything else (for example, bottle).
  • This offence should be charged where, by virtue of the fact that the complainant is unsure if penetration was by a penis or something else, there is insufficient evidence to charge rape.
  • Assault by penetration is an indictable only offence and carries a maximum of life imprisonment.
Sexual Assault (section 3)

Key points:

  • Touching is widely defined and includes touching another person with any part of the body, or with anything else. Touching can be through clothing. In R v H (Karl Anthony) [2005] EWHA Crim 732 the Court of Appeal held that the touching of an individual’s clothing was sufficient to amount to ‘touching’ for the purposes of section 3.
  • Touching includes touching amounting to penetration, for example, kissing. Where there is sufficient evidence, penile penetration of the vagina, anus or mouth should be charged as rape and penetration of the vagina or anus with any part of a person’s body or other object should be charged as assault by penetration.
  • Sexual assault is an either way offence and attracts a maximum 10 year sentence on indictment.

Charging practice:

  • If touching does not occur, then consider an attempt.
  • Various activities previously covered by the offence of ‘indecent assault’ now fall within the definitions of offences under the 2003 Act (for example, assault by penetration, child sex offences and vulnerable adults subjected to a sexual assault). This means that the offence of sexual assault (section 3) will largely now be used in relation to lesser forms of sexual assault, than previously.
  • The exact nature of the sexual touching involved will be a key factor in assessing the seriousness of the offence. Prosecutors should refer to the harm and culpability factors and the aggravating and mitigating factors set out in the Sentencing Council's Sexual Offences (“sentencing guidelines”) when considering seriousness and the appropriate sentencing category for the offending.
Causing sexual activity without consent (non penetrative) (section 4) (either way – 10 years on indictment)
Causing sexual activity without consent (penetrative) (section 4(4)) (indictable – max life)

Key points:

  • The offence can be committed by words alone, for example, defendant makes his victim carry out a sexual act, such as masturbation, that only involves the victim
  • This offence covers situations where, for example, a complainant is forced
    • to carry out a sexual act involving their own person, such as masturbation, or
    • to engage in sexual activity with a third party, who may be willing or not, or
    • to engage in sexual activity with the offender, for example, woman forces a man to penetrate her
  • This section creates two separate offences, penetrative and non-penetrative.
  • The mode of trial and maximum sentence varies depending on whether there is penetration
  • The non-penetrative offence is either way and attracts a maximum 10 year sentence on indictment
  • The penetrative offence is indictable only and attracts a maximum sentence of life imprisonment.

Charging practice:

  • The prosecutor should specify either that the sexual activity is penetrative or non-penetrative when selecting and drafting charges under this section
  • One of the purposes of this offence, in addition to the wider range of sexual activity, is to create a female equivalent of the offence of rape, which carries the same level of punishment for what amounts to the same type of offending behaviour. Please refer to the chapter on Issues relevant to particular groups of people
  • If the complainant is under 13 years then the offence should be charged under section 8 Sexual Offences Act 2003. If the complainant is 13 to 15 and there is no consent the offence should be charged under section 4 Sexual offences Act 2003
  • If the suspect is 18 or over and in a position of trust to the complainant and the complainant is aged 16 or 17 the offence should be charged under section 17 Sexual Offences 2003
  • In determining seriousness reference should be made to the sentencing guidelines.
Time limits for common assault charges

Section 39A Criminal Justice Act 1988 applies to offences committed on or after 28 June 2022 and states that common assault or battery offences which amount to domestic abuse can be charged by prosecutors up to two years from the incident date provided that they do so within six months of the victim’s first formal statement or interview. Rape investigations can take many months to complete and so it is vital that prosecutors are mindful of the time limits applying to section 39 CJA prosecutions in order to ensure that the full range of charging options are available at the time of charge. Every case will be different, and the impact upon the victim and case strategy must be carefully considered, but there will be situations where a rape investigation has been delayed and is not ready for a charging decision and it is appropriate for a prosecutor to authorise section 39 charges triggering separate proceedings in the magistrates' court.

Sexual Offences Act 2003 – offences against children

The 2003 Act identifies three categories of offences against children of different ages. They are:

  • Offences against those under 13
  • Offences against those under 16
  • Offences against those under 18

In general, in cases involving child victims, depending on the circumstances of the case and the age of the child, it may be appropriate to charge offences contrary to sections 1-4 (the main non-consensual offences, where the prosecution is required to prove absence of consent), or contrary to sections 5-8 or 9-13 (the provisions specifically designed for offences against children, where consent is irrelevant).

However, in each case, prosecutors should ensure that the charges selected reflect the seriousness of the offence and have regard to available sentencing options. For example, in the case of R v Pain [2018] EWCA Crim 90 – which featured non-consensual penetrative sexual activity between an adult and 15-year-old boy – the decision of the prosecution to favour section 3 charges instead of section 9 was criticised on the basis that the court’s sentencing powers were limited. The court observed “on any view they were offences of sexual activity with a child and therefore could, and in our view should, have been charged as section 9 offences, with a higher maximum penalty”.
In cases involving child victims aged under 13:

  • If both the age of the child and the elements of the offence can be proved, then sections 5-8 should always be the preferred offences. For example, a charge of section 5 (rape of a child under 13) should always be preferred over section 1 (rape), as it properly reflects the fact that the offence was committed against a child and removes any requirement for the jury to consider the issue of consent.
  • However, if there is difficulty in proving that the child is under 13 (or that they were under 13 at the time of the offending – for example, if it took place many years ago and the victim cannot recall their exact age at the time) then a charge under sections 9-12 should be considered rather than sections 5-8.

In cases involving child victims aged 13-15:

  • Where there is a clear complaint of rape of a child aged 13-15, then a charge of section 1 (rape) should always be preferred to a charge of section 9 (sexual activity with a child). An alternative charge of section 9 is not considered to be good practice when there is evidence to show that the child did not freely consent, as it may suggest that the prosecution is not confident of its case. Section 9 should therefore only be considered when the prosecutor concludes that it will not be possible to prove an absence of consent. Prosecutors should be alert to the need for careful consideration of factors such as the presence of coercion, exploitation, and grooming when assessing whether or not the child freely consented.

In cases involving familial child sex offences – if the child is aged 13 or over and the elements of the offence can be proved (including clear evidence of familial relationship), then section 25 (sexual activity with a child family member) or section 26 (inciting a child family member to engage in sexual activity) should be considered rather than sections 9 or 10. Adopting this approach makes clear the familial context in which the offence is committed.

Offences against children under 13 (sections 5-8)
  • s.5 rape 
  • s.6 assault by penetration
  • s.7 sexual assault of a child under 13
  • s.8 causing or inciting sexual activity with a child
  • s.8(2) causing or inciting sexual activity with a child
Section 5: Rape of a child under 13
  • Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.
  • In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing but only after consideration has been given to the impact on the child and the public interest in proceeding in this way. On no account should a count of rape (section 1) be added as an alternative. Juries should not be asked to deliberate upon issues that are critical to sentence which are not necessary to substantiate a charge in law. Rather these are questions that a judge should consider by hearing evidence on the relevant point and according to the procedure as set out in R v Newton 77 Cr. App. R. 13. See case of Delahaye-Bryan [2015] EWCA Crim 1987.
  • The section 5 offence is an indictable only offence and carries a maximum sentence of life imprisonment.
Section 6: Assault of a child under 13 by penetration
  • Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under 13 with a part of his body, or with anything else.
  • A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.
  • The section 6 offence is an indictable only offence and carries a maximum sentence of life imprisonment.
Section 7: Sexual assault of a child under 13
  • Section 7 makes it an offence for a person to touch a child under 13 sexually.
  • The section 7 offence is an either way offence and carries a maximum sentence of 14 years' imprisonment.
Section 8: Causing or inciting a child under 13 to engage in sexual activity
  • Section 8 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity.
  • Section 8 creates two offences to reflect causing or inciting 1) penetrative sexual activity and 2) non-penetrative sexual activity.
  • The offences cover the situation where sexual activity itself does not take place.
  • The non-penetrative offence is an either way offence and carries a maximum sentence of 14 years imprisonment.
  • The penetrative offence is an indictable only offence and carries a maximum sentence of life imprisonment.

Key Points

  • A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
  • Sections 5 - 8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant. If both the age of the child (that is, under 13) and the elements of the offence can be proved, then sections 5-8 should always be preferred to the main non-consensual offences.
  • These are offences of strict liability as to age. The prosecution has to prove only two facts.
    • first, the intentional sexual activity and
    • second, the age of the complainant at the date of the sexual activity, using, for example, a certified copy of a birth certificate together with evidence of identity.
  • There is no defence of mistaken reasonable belief in the age of the complainant.
  • The under-13 offences overlap to a very significant extent with the child sex offences  which are designed to protect children under 16 (sections 9-15). However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect children in this age group. This is to ensure the availability of the higher maximum penalties for the under-13 offences and avoid children under 13 giving evidence in relation to consent.
  • If there is difficulty in proving that the child is under 13 (or was so at the time of the offending) then a charge under sections 9-12 should be considered rather than sections 5-8.

Code for Crown Prosecutors – Adult Defendant

  • The intention behind the Sexual Offences Act 2003 is to provide maximum protection to very young children, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent.
  • Given the seriousness of these offences, where the defendant is an adult, notwithstanding the wide nature of the activity addressed by sections 5 - 8, a prosecution will normally be required unless there are public interest factors tending against prosecution, which outweigh those tending in favour.

Code for Crown Prosecutors – Youth Defendant (under 18)

Where the offender is under 18 prosecutors should refer to prosecution guidance on Children as suspects and defendants, and to the additional public interest considerations and factors which must be addressed when considering the prosecution of a youth for a sexual offence.

Where both the suspect and complainant are under 13 years of age any charging decision or subsequent decision to terminate proceedings or substantially alter the charge should be approved by the Chief Crown Prosecutor (CCP).

Charging Practice

  • If the offence is penetrative, section 7 and section 8 become indictable only offences. Prosecutors must specify whether the sexual activity is penetrative or non-penetrative when drafting the indictment.
  • Where the offence is either way prosecutors should refer to the sentencing guidelines when assessing seriousness.
Offences against children under 16 (sections 9 - 13)

The 2003 Act provides that the age of consent is 16. Sections 9 -13 clarify that any sexual activity involving consenting children under 16 is unlawful. Sections 9-12 cover adult defendants. Section 13 relates to child defendants.

  • Section 9 Sexual activity with a child
  • Section 10 Causing or inciting a child to engage in sexual activity
  • Section 11 Engaging in sexual activity in the presence of a child
  • Section 12 Causing a child to watch a sexual act

Key Points:

  • Consent is irrelevant.
  • There is a defence of reasonable belief that the child is 16 years or over. The defence of reasonable belief does not apply if the child is under 13 years.
  • There is no defence for lawfully married overseas couples where one party is under 16.
  • Sections 9 and 10 create two separate offences of penetrative and non-penetrative sexual activity. If penetration is involved the offence is indictable only. The maximum sentence on indictment is 14 years.
  • Sections 11 and 12 are either way offences which attract a maximum sentence of 10 years imprisonment.
  • Under section 11, there is no requirement that the complainant is actually aware of the activity, though there is a requirement that the complainant is present, or could potentially observe it. Observation can be via a webcam and includes an image.
  • In accordance with section 13 a person under 18 commits an offence if he does anything which would amount to an offence under sections 9-12.

Charging Practice:

  • When there is an absence of consent, and an absence of reasonable belief in consent, offences contrary to sections 1-4 are also available. However, prosecutors should always have regard to available sentencing options.
  • Where there is a clear complaint of rape of a child aged 13-15, then a charge of section 1 (rape) should always be preferred to a charge of section 9 (sexual activity with a child). Section 9 should only be considered when the prosecutor concludes that it will not be possible to prove an absence of consent. Prosecutors should be alert to the need for careful consideration of factors such as the presence of coercion, exploitation, and grooming when assessing whether or not the child freely consented.
  • In cases where there is clear evidence of a familial relationship, offences contrary to section 25 or section 26 (familial child sex offences) should be considered rather than sections 9 or 10.
Section 13: Child sex offences committed by youths

This section should be read alongside chapter 9 Allegations involving children and young people.

Key Points:

  • Pursuant to section 13 SOA 2003 it is an offence if a person under 18 commits an act which would amount to an offence under sections 9 - 12.
  • Pursuant to section 13 the maximum penalty on indictment is reduced to imprisonment to a term not exceeding 5 years.
  • Prosecutors must also apply the Code and any relevant CPS policies.
  • Where both the suspect and complainant are under 13 years of age any charging decision or subsequent decision to terminate proceedings or substantially alter the charge should be approved by the Chief Crown Prosecutor (CCP).
Code for Crown Prosecutors (sections 5-13 SOA 2003)

In deciding whether or not to prosecute offences contrary to Sections 5-13 SOA 2003, prosecutors should have careful regard to the factors below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. However, when deciding whether it is the public interest to prosecute, prosecutors may exercise more discretion in relation to child sex offences where the complainant is aged 13 - 15 than for those offences where the child is under 13 years.

Prosecutors should have regard to the following factors:

  • The age and understanding of the offender. This may include whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has led him or her to commit the offence;
  • The relevant ages and levels of maturity of the parties, that is, the same or no significant disparity in age;
  • Whether the complainant entered into sexual activity willingly, that is, did the complainant understand the nature of his or her actions and that (s)he was able to communicate his or her willingness freely;
  • Parity between the parties in regard to sexual, physical, emotional and educational development;
  • The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development;
  • Whether there is any element of exploitation, coercion, threat, deception, grooming, seduction, manipulation or breach of trust in the relationship;
  • Whether the child under 13 freely consented (even though in law this is not a defence) or a genuine mistake as to her/his age was in fact made;
  • The nature of the activity, for example, penetrative or non-penetrative activity;
  • The sexual and emotional maturity of the parties and any emotional or physical effects resulting from the conduct; and
  • The likely impact of any prosecution on the parties.
Other related offences against children (under 16)
  • Section 14 Arranging and facilitating a child sex offence
  • Section 15 (as amended) Meeting a child following sexual grooming
  • Section 15(a) Sexual Communications with a child
  • Section 14 Arranging and facilitating a child sex offence

Key Points:

  • The purpose of this offence is to prevent people from making it possible for a child under 16 to be sexually abused.
  • A person must intentionally arrange or facilitate for himself or another something that he intends or believes would happen that would result in a commission of a child sex offence in any part of the world (sections 5 -13).
  • There is a defence if the person arranges or facilitates something that although he believes might happen, he does not intend it to happen, and he acts for the protection of the child, that is, from sexually transmitted infection; physical safety; from becoming pregnant; or promoting the child's well-being by giving advice. For example, where a person provides a condom to a girl under 16 in order to protect her from sexually transmitted infections/pregnancy in circumstances where she says she is already having sexual intercourse.
  • However, the defence does not apply if the person acts for the purpose of causing or encouraging the activity constituting the child sex offence or the child's participation in it. For example, a person who gives a condom to a child under 16 to protect her from pregnancy whilst arranging for her to have sex with a friend. Similarly, the defence does not apply if the person acts for the purpose of obtaining sexual gratification.

Charging Practice:

  • If considering a charge under s.14, in which no real child was involved, such as cases involving undercover officers or ‘vigilante groups’, prosecutors should charge the substantive offence and not an attempt.
  • Section 14(1) creates an offence which is a substantive inchoate offence. It is similar to, but broader than, an attempt. See R [2008] EWCA Crim 619. ‘Arranging’ and ‘facilitating’ are different considerations to ‘more than merely preparatory’. As such, there will be circumstances which would constitute ‘arranging‘ or ‘facilitating’, but fall short of an ‘attempt’.
  • The focus of the offence is on the child sexual offence which the person intended to arrange or facilitate. The fact that an offence may have been impossible has no bearing on the intention possessed at the time it was arranged of facilitated.
  • The offence is committed if the person intentionally arranges or facilitates the commission of an offence under sections 5 - 13 SOA 2003. It is only necessary to prove the arrangement or facilitation together with the requisite mens rea to commit a section 5 - 13 SOA 2003 offence in the future. The proof of an arrangement or facilitation is not dependent on the possibility of carrying it out.
  • Prosecutors should also refer to prosecution guidance on Online Child Abuse Activist Groups on the Internet when considering potential charges contrary to this section.
  • The offence is either way and carries a maximum sentence of 14 years on indictment.
Section 15 Meeting a child following sexual grooming

Key points:

  • This offence is intended to protect children from adults who communicate (not restricted to on-line communications) with them and then arrange to meet them with the intention of committing a sexual offence against them, either at that meeting or subsequently.
  • The offence is committed when the offender meets the child or travels with the intention of meeting the child, or arranges to meet the child, or the child travels with the intention of meeting the offender.
    • The meeting or at least part of the travel must take place within the jurisdiction.
    • The person must have an intention to commit any offence under Part 1 of the 2003 Act or any act done outside England and Wales, which would be an offence in the jurisdiction. This may be evident from the previous communications or other circumstances, for example, an offender travels in possession of ropes, condoms or lubricants, etc.
    • The child is under 16 and the adult does not reasonably believe that the child is over 16. However, if this is not the case, for example, the child’s place has been taken by an undercover police officer, an attempt could be charged.
  • The offence only applies to adults.
  • There must be communication (a meeting or any other form of communication) on at least one previous occasion. It is not necessary for the communications to be of a sexual nature.
  • The communication can take place anywhere in the world.
  • The section 15 offence is either way and attracts a maximum penalty of 10 years imprisonment on indictment.
  • Prosecutors should be aware of the activities of so called ‘Internet Vigilantes’ who are members of the public using social media to uncover alleged paedophiles and refer to the related guidance.
Section 15A Sexual Communications with a child

Key points:

  • Section 67 of the Serious Crime Act 2015 inserts a new offence into the Sexual Offences Act 2003, at section 15A, criminalising sexual communication with a child.
  • The provisions came into effect on 3 April 2017 and the offence is not retrospective.
  • The offence is committed where a person aged 18 or over intentionally communicates with a child under 16, who the adult does not reasonably believe to be 16 or over, if the communication is sexual or if it is intended to encourage the child to make a communication which is sexual. The offence will be committed, whether or not the child communicates with the adult.
  • A communication is sexual “if any part of it relates to sexual activity or a reasonable person would consider any part of the communication to be sexual”.
  • The offence applies equally to online and offline communications and irrespective of the way the communication is made (for example it will apply to oral communications as well as to emails and text messages) and the offence can be prosecuted extra-territorially in the same way as other child sex offences.
  • The offence will apply only where the defendant can be shown to have acted for the purposes of obtaining sexual gratification.
  • The offence is either way and attracts a maximum prison sentence of 2 years on indictment and the offence automatically attracts the notification requirements for registered sex offenders under the Sexual Offences Act 2003.

Offences against children under 18

Sections 16 – 24 Abuse of position of trust

Key points:

  • The primary purpose of the abuse of trust provisions is to provide protection for young people aged 16 and 17, who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives.
  • These offences are primarily concerned with the child giving ostensible consent to the activity, but that consent is not relevant because of their particular relationship with the abuser.
  • Positions of trust are defined in sections 21 and 22 SOA 2003, as amended by section 45 of the Police, Crime, Sentencing and Courts Act 2022, which inserts section 22A. This provision extends the definition of ‘position of trust’ to include someone who knowingly coaches, teaches, trains, supervises or instructs children on a regular basis, in a sport or a religion. However, section 22A will not apply where someone is in a position of trust in relation to another person in circumstances where section 21 applies.
  • The prohibited sexual behaviours in sections 16 - 19 are identical to those prohibited by sections 9 - 12 (that is, sexual activity with a child; causing a child to engage in sexual activity; sexual activity in the presence of a child; and causing a child to watch a sexual act).
  • See section 23 for the defence for spouses and civil partners and section 24 for sexual relationships which pre dated the position of trust.
  • These offences are either way and attract a maximum sentence of 5 years on indictment.

Charging practice:

  • These offences are designed to protect 16 and 17 year olds from sexual relationships which would not be criminal but for the suspect’s position of trust in relation to the complainant.
  • Prosecutors should charge an offence contrary to sections 1 - 4 where the child is 16 or 17 and lack of consent can be proved.
  • Prosecutors should reflect the unlawful nature of the sexual activity by charging child sex offences contrary to sections 5 - 8 (child under 13) or sections 9 -12 (child under 16) if, appropriate, which attract significantly higher sentences.
  • It may be appropriate to charge an abuse of trust offence where the victim is under 16 when it is likely that the person in a position of trust reasonably believed that the child was 16 or over.
Sections 25 – 27 Familial child sex offences

Key points:

  • These offences reflect the modern family unit and take account of situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or living together as partners.
  • For the purposes of sections 25 and 26 family relationships are defined in section 27 and fall within three categories:
    • First, those listed in subsection (2), such as parent, grandparent, brother, sister, step-parent, half-brother, half-sister, uncle, aunt, foster parent etc., will always be family members;
    • Second, those listed in subsection (3), such as partner of the other’s parent or cousins, will only be family members if A lives, or has lived in the same household or is or has been involved in the caring, supervising or sole charge of the child.
    • The third category is similar to the second except that it applies only to those who are currently living in the same household, for example, an au pair who has responsibility for the child.
  • Where penetration is involved the offences are indictable only and carry a maximum sentence of 14 years imprisonment. Where penetration is not involved the offences are either way and carry a maximum sentence of 5 years imprisonment.
  • Sections 64 and 65 cover offences of sex with an adult relative and relate only to blood relatives - see the guidance on Offences: Sex with an adult relative.

Charging practice:

  • Where a child victim is under 13, prosecutors should charge an offence under sections 5 - 8, if appropriate, notwithstanding that sections 25 and 26 apply to a child under 13.
  • Prosecutors should note requirements in relation to charge authorisation where both the suspect and the complainant in a sex case were under 13 at the time the offence was committed.
  • If there is difficulty in proving the age is under 13, then prosecutors should charge under sections 25 and 26, provided that the other elements of the offence can be proved.
  • Prosecutors can consider an offence contrary to sections 1-4 where the child is over 13 and a lack of consent can be proved but, as per the case of R v Pain [2018] EWCA Crim 90, consideration should be given to the sentencing powers available to the court.
  • In some cases involving children aged between 13 and 15 years offences may fall within the familial offences and also the equivalent offences where there is no familial link such as sections 9 and 10 SOA 2003. Where there is sufficient evidence to prove the family relationship and an offence under sections 9 and 10 SOA 2003 prosecutors should charge a familial offence.
  • For a child aged 16 or 17 where a lack of consent cannot be proved prosecutors can only charge familial offences.

Code for Crown Prosecutors

•    The public interest factors in relation to ‘under 13’ offences (sections 5 - 8) and child sex offences (sections 9 -10) apply to sections 25 - 27 familial child sex offences but prosecutors should bear in mind the specific breach of trust in the familial offences.

Sexual exploitation of children

There is no specific offence of child sexual exploitation (CSE); it is defined in government guidance and policy in this way:

“Child sexual exploitation is a form of child sexual abuse. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) for the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the sexual activity appears consensual. Child sexual exploitation does not always involve physical contact; it can also occur through the use of technology.”

Section 51 of the Sexual Offences Act 2003 defines sexual exploitation for the purposes of offences contrary to sections 48 to 50 of the Sexual Offences Act 2003. On 31 March 2017, s.176 of the Policing and Crime Act 2017 expanded the definition of ‘sexual exploitation’ to include situations where images are streamed (such as via the internet) or otherwise transmitted by some other technological means, such as CCTV.

Coercion and manipulation often feature in abusive situations so that the child or young person does not understand what is happening. Offenders may groom the child or young person and their family and friends, gaining their trust or they may make threats.  Sometimes, the offender may exert control but implicating the victim in other criminal activity (for example, possession of illegal drugs or shoplifting). Some offenders may claim that the victim has brought shame on their family. Prosecutors should be aware of cultural barriers to reporting such abuse.
Offenders may avoid suspicion by taking victims to be abused for a short time or during school hours so their absence is not noticed. The fact that a victim is maintaining a seemingly normal routine does not mean they have not been victims of sexual abuse.

'Grooming' is not a specific form of child sexual exploitation but should be seen as a way in which perpetrators target children and manipulate their environments. It is an approach to exploitation and may be the beginning of a complex process adopted by abusers. Grooming can be defined as developing the trust of a young person or his or her family in order to engage in illegal sexual activity or for others to engage in illegal sexual activity with that child or young person.

Sections 47 - 50 provide offences specifically to tackle the use of children in the sex industry who are victims of abuse and sexual exploitation. Although the legal age of consent is 16, Parliament recognised the need to protect children up to the age of 18 from those who seek to exploit them for the purposes of prostitution or pornography. The terminology, which previously referred to child prostitution, was updated by the Serious Crime Act 2015 to reflect the exploitative nature of these acts.

Sections 47 - 50 (as amended by s.68(1) to (6) Serious Crime Act 2015)
  • Section 47 Paying for the sexual services of a child
  • Section 48 Causing or inciting sexual exploitation of a child
  • Section 49 Controlling a child in relation to sexual exploitation
  • Section 50 Arranging or facilitating sexual exploitation

Key points

  •  A person is a child if under 18.
  • Consent is not in issue. It does not matter if a child of 16 or 17 consents to the activity, it is those who exploit children who commit the criminal act.
  • The defence that a person reasonably believed the child was over 18 does not apply if the child is under 13.
  • The definition of payment is very wide.
  • A person is involved in pornography if an image of the child is recorded.
  • Section 176 of the Policing and Crime Act 2017 revised the definition of Child Sexual Exploitation set out in section 51 Sexual Offences Act 2003 to include situations where indecent images of a child are “streamed or otherwise transmitted” as well as where they are recorded, making the offences more robust in the light of technological changes and ensuring that those who exploit children in this way can be effectively prosecuted for the appropriate offence.
  • Section 47 is an indictable only offence if penetration occurs and the maximum sentence is 14 years imprisonment, or life imprisonment if the victim is under 13 years of age. Where the child is 16 or 17 the offence is either way and the maximum sentence is 7 years irrespective of penetration.
  • Section 48 is an either way offence. The maximum sentence is 14 years imprisonment.
  • Sections 49 and 50 attract the same sentences as per Section 48.

Charging practice

  • Where a child is under 13, prosecutors should charge an offence, if appropriate, under sections 5 - 8.
  • Where there are problems proving the defendant did not have a reasonable belief that the child was over 18, prosecutors may consider an offence contrary to sections 52 or 53 ( adult prostitution offences) provided the elements of the offence can be proved.
  • In drafting offences under section 47, prosecutors should specify whether the activity is penetrative or non-penetrative as different maximum penalties apply.

Code for Crown Prosecutors

These are very serious offences in which the public interest will normally require a prosecution unless the factors tending against prosecution outweigh those in favour.

Section 58 Trafficking (repealed)
  • Section 2 of the Modern Slavery Act 2015 repealed and replaced section 58 Sexual Offences Act 2003 that criminalised trafficking for sexual exploitation. This is effective from 31 July 2015. Offences prior to this date should be charged under the previous legislation.
  • Offences involving child sexual abuse may involve the movement of children within the UK in order to facilitate child sexual exploitation by other offenders. This may involve organised crime gangs and vulnerable teenage girls who are groomed to co-operate with sexual exploitation and transported to different locations where they are subject to further abuse by other offenders. In these circumstances reference should be made to other prosecution guidance on Modern Slavery and Trafficking and consideration given to charging a trafficking offence under section 58 Sexual Offences Act 2003, if it predates the enactment of the Modern Slavery Act 2015.
  • In cases where offences may be considered under section 2 of the Modern Slavery Act 2015 for trafficking within the UK for child sexual exploitation it is irrelevant whether the victim consented to the travel (section 2(2) Modern Slavery Act 2015) and in this context, travel means recruiting, transporting or transferring, harbouring or receiving the victim or exchanging control over them.

Sexual Offences Act 2003 - Offences against persons with a mental disorder

Sections 30 - 41 protect persons with a mental disorder who are vulnerable to sexual exploitation and creates three categories of offence.

Sections 30 - 33 Offences against persons with a mental disorder impeding choice

The first category relates to persons whose mental functioning is so impaired at the time of the sexual activity that they are unable to make any decision about their involvement in that activity through a lack of capacity to choose or an inability to communicate such choice.

Sections 34 – 37 offences where there are inducements etc. to a person with a mental disorder

The second category relates to those who have capacity to consent to sexual activity but whose mental disorder is not so severe they are unable to refuse but who are vulnerable to inducement, threat or deception.

Section 38 – 41 Offences by care workers against persons with a mental disorder

The third category relates to those who have capacity to consent but who for reasons associated with their mental disorder may agree to sexual activity solely because they are influenced by their familiarity with and/or dependency upon the carer.

Key points

  • The prohibited sexual activity in each category above is the same activity as for the child sex offences (sections 9 - 12) that is, intentional sexual touching, engaging in sexual activity in the presence of a person and causing a person to watch a sexual act and the four breach of trust offences in sections 16 -19.
  • For offences under sections 30 - 37, prosecutors must prove the complainant has a mental disorder and the defendant knows or could reasonably be expected to know that.
  • For offences committed by care workers, there is a presumption that the defendant knew or could reasonably be expected to know of the mental disorder unless sufficient evidence is adduced to raise this as an issue.
  • Mental disorder is defined as set out in section 1 Mental Health Act 1983, as amended by Mental Health Act 2007, as “any disorder or disability of the mind”. As well as including serious mental illness this definition ensures protection of those with lifelong learning disability and persons who develop dementia later in life.
  • Medical evidence will usually be required to prove the mental disorder.
  • It is now clear that care workers who make arrangements for securing the services of a sex worker for a person with a mental disorder would be in peril of committing an offence under s.39. See Secretary of State for Justice v A Local Authority [2021] EWCA Civ 1527.
  • Section 42 defines the relationship of care (see below for more detail).
  • Defences include marriage (section 43) and a pre-existing sexual relationship (section 44).
  • Offences involving penetration as outlined in the relevant sections will be indictable only.
  • The maximum sentence for sections 30, 31, 34 and 35 is life imprisonment if penetration occurs otherwise the maximum sentence 14 years on indictment.
  • Sections 32, 33, 36 and 37 are either way offences and attract a maximum sentence of 10 years on indictment.

Charging practice

The prosecutor must specify in the indictment whether sexual activity is penetrative or non-penetrative and particularise the nature of the penetrative activity.

Where the offence is either way prosecutors should refer to the sentencing guidelines when assessing seriousness.

Section 42 Care workers: interpretation

This section defines when a person is involved in the care of another for the purposes of section 38 - 41.

Key points:

  • Subsection 2 applies if the person is accommodated and cared for in a care home, community home, voluntary home or children’s home and the offender performs functions in the home in the course of employment which brings him or her into regular face to face contact.
  • Subsection 3 applies to National Health Service bodies or independent medical agencies.
  • Subsection 4 applies to anyone providing care assistance or service in connection with the persons mental disorder whether or not in the course of employment. This section therefore covers persons being cared for in their own home. Home office guidance gives an example falling into this section of a voluntary care worker who takes a mentally disordered person on weekly outings or visits him at home to provide complimentary therapy.
  • There is no requirement for paid employment, volunteers can be caught under this provision.

Sexual Offences Act 2003 - Sex with an adult relative

Sections 64 and section 65 Sexual Offences Act 2003 make it an offence to have sex with an adult relative either by committing, or consenting to, an act of sexual penetration.

Key Points

  • The ways in which the parties are related are set out in section 64(2) and includes uncles, aunts and adoptive parents but not their spouses or partners.
  • In cases where a lawful relationship pre-dated the act and in the absence of exploitation it is unlikely to be in the public interest to prosecute.
  • Prosecutors should bear in mind that all adult parties will commit an offence providing they either commit or consent to the act, regardless of whether or not they are the ‘victim’. Prosecutors should always consider the position of the parties individually and identify any issues of exploitation and victimisation. Although both may have committed an offence, different factors may apply to each, especially in relation to the public interest.
  • A number of cases referred to CPS involve young women who, having grown up apart from their absent father, have felt the need to seek him out in adulthood. It is not uncommon in cases of this nature for suspects who are fathers to claim that the sexual relationship was instigated by their daughter and to suggest that it is they who have been seduced. Prosecutors should always question the credibility of such assertions and acknowledge, in reaching any decision, that the exploitation of a daughter for sexual purposes always involves a gross breach of trust.

Charging Practice

  • These offences should primarily be reserved for situations where a history of abuse against a child family member continues into adulthood or where a suspect sexually exploits an adult relative who is vulnerable.
  • Prosecutors should consider the circumstances in which the relationship first arose and how long it has existed.
  • Where a history of exploitation and grooming can be shown, at least in the early stages of the relationship, a prosecution for non recent offences of rape, sexual assault or similar may be appropriate in addition to any offence committed under sections 64 and 65.
  • The offences are either way and attract a maximum sentence of two years imprisonment.

Code for Crown Prosecutors

In addition to the public interest factors outlined in paragraph, prosecutors should bear in mind the following:

  • In the absence of factors in favour of a prosecution and where the relationship can be shown to have arisen between adults, without coercion or exploitation, a prosecution is unlikely to be required.
  • Any potential adverse impact of a prosecution on the child or children born as a result of the relationship requires careful consideration.
  • Where the family is subject to social services intervention, prosecutors should carefully consider whether a prosecution, over and above any civil proceedings and supervision, is required in the public interest.
  • Where the parties make it clear that the relationship has ended and will not resume in future, this is an additional factor, which may suggest that the public interest does not require a prosecution.
  • Conversely, cases in which the relationship continues beyond a decision to advise that no action be taken on public interest grounds will need very careful consideration. In the event of such circumstances being further investigated and referred for a charging decision, the fact that a previous decision has been made not to prosecute on public interest grounds will mean that a prosecution is more likely to be in the public interest on any subsequent occasion.

Online Safety Act 2023

Key Points:

  • Sending Photographs or Film of Genitals (Cyber-Flashing) - Section 66A Sexual Offences Act 2003 (as inserted by Section 188 OSA 2023).

    This is a new offence created by the OSA 2023. More information can be found in the Communications Offences guidance. The new offence commenced on 31 January 2024.

  • Sharing or Threatening to Share Intimate Photographs or Film – Section 66B(1)-(4) and Section 66C Sexual Offences Act 2003 (as inserted by Section 189 OSA 2023).

    This is a repeal of the so-called ‘revenge porn’ offence, contrary to sections 33 to 35 of the Criminal Justice and Courts Act 2015 [‘CJCA 2015’]. The section 33 CJCA 2015 offence remains available for offences committed prior to the commencement of the OSA 2023 on 31 January 2024. For offences committed on or after the commencement of the OSA 2023 on 31 January 2024, Section 189 OSA 2023 inserts a new section 66B into the SOA 2003, which creates 4 distinct offences. Section 66B(1) SOA 2003 creates a summary offence, while sections 66B(2)-(4) SOA 2003 are either-way offences which carry a maximum penalty of up to 2 years’ imprisonment and/or an unlimited fine.

Data (Use and Access) Act 2025

Creating, or requesting the creation of, purported intimate image of adult – Section 66E-F Sexual Offences Act 2003 (as inserted by the Data (Use and Access) Act 2025). These are new offences that criminalise creating, or requesting the creation of a purported intimate image of an adult without their consent, or reasonable belief in their consent. A “purported” intimate image is an image which appears to be, or to include, a photograph or film of the person (but is not, or is not only, a photograph or film of the person), where the image appears to be of an adult, and appears to show the person in an intimate state. This offence aims to tackle sexually explicit “deepfake” AI-generated images.

Sexual Offences Act 1956

The Sexual Offences Act 1956 is the primary piece of legislation covering sexual offending which took place prior to 1 May 2004 . When selecting charges prosecutors must be mindful of changes to offence descriptions, sentencing powers and legal issues including time limits. The key dates and changes are highlighted under each offence and great care must be taken to ensure the indictment is framed to accurately reflect these changes.

The commencement date of the Act was 01 January 1957 and prosecutors should only use the 1956 Act for offences committed before 1 May 2004. When it is not possible to prove whether the offence occurred before or after 1st May 2004, prosecutors should note that section 55 Violent Crime Reduction Act 2006 applies. In order to rely on section 55, each offence should be charged in the alternative under the old and new regimes.

  • The most commonly charged offences under the Sexual Offences Act 1956 are:
    • Section 1 Rape
    • Section 5 Unlawful sexual intercourse by a man with a girl under 13
    • Section 14 Indecent assault on a woman
    • Section 15 Indecent assault on a man
  • Offences which are now time barred and should not be charged
    • Section 6 Unlawful Sexual Intercourse with a girl under 16
    • Section 12 Buggery (subject to specific exceptions)
    • Section 13 Gross Indecency
Rape

Key points:

  • The definition of rape was extended by section 142 Criminal Justice and Public Order Act 1994 to include anal sexual intercourse with another man without consent (in force from 03 November 1994).
  • The definition of rape was extended by Section 142 Criminal Justice and Public Order Act 1994 to include anal sexual intercourse with a female or male without consent, (in force from 03 November 1994).
  • There is no statutory definition of consent under the 1956 Act and it is now commonly accepted that the approach outlined by section 74 Sexual Offences Act 2003 applies when directing the jury.
  • The offence attracts a maximum sentence of life imprisonment.

Charging Practice:

  • Anal rape should be charged as section 1 Rape and not section 12 Buggery from 03 November 1994.
  • Incidents of anal and vaginal rape should be preferred as separate counts and the nature of the penetration specified in the indictment.
  • Where more than one man is alleged to have raped the complainant on the same occasion all offenders should be indicted on the same count with no reference to aiders and abettors.
  • Until 20 September 1993 a presumption existed that a boy under the age of 14 was incapable of sexual intercourse. However rape committed prior to this date can be charged as indecent assault following R v Williams [1893] 1 QB 320.
  • If a girl aged 13 or over provides apparent consent to sexual intercourse but there is evidence that she has been groomed, the question of whether this amounts to consent in law may arise. Where a complainant fails to understand the full significance of the sexual act, immaturity and acquiescence may be sufficient to prove a lack of consent in law and an offence of Rape contrary to section 1 should be considered. See the judgement in R v Robinson [2011] EWCA Crim 1916.
  • A woman can be convicted as an aider and abettor to rape.
Unlawful Sexual Intercourse with a girl under 13

Key points:

  • The offence attracts a maximum sentence of life imprisonment.
  • The rape of a girl under 13 years should be charged contrary to section 5 Sexual Offences Act 1956 rather than contrary to section 1 SOA 1956. This reflects the fact that a child under 13 years cannot consent to sexual intercourse.

Code for Crown Prosecutors:

  • Prosecutors should apply the same approach to public interest considerations as for offences under the Sexual Offences Act 2003.
  • Consent nor belief in consent is a defence to this offence. With this in mind the rape of a girl under 13 years should be charged contrary to section 5 Sexual Offences Act 1956 rather than contrary to section 1 SOA 1956.
  • There is no defence under Section 5 that the defendant made a mistake as to the victim’s age even if that is based on reasonable grounds as per R v Prince [1875] LR 2 CCR 154.
Buggery contrary to section 12 Sexual Offences Act 1956

Key points:

  • This offence is only available in limited circumstances
  • The offence is available if the act amounted to an assault (that is, it was non-consensual). Non-consensual anal intercourse should be charged as rape for incidents occurring on or after 3 November 1994.
  • The offence is available regardless of consent if the complainant was under 16 when the offence was committed.
  • The minimum age of consent to buggery and certain homosexual acts was reduced from 18 to 16 years in England and Wales on 8 January 2001, Sexual Offences (Amendment) Act 2000. This was not retrospective.
  • Acts of buggery involving a 16 or 17 year old complainant taking place between 3 November 1994 and 8 January 2001 are still capable of being prosecuted, however, unless circumstances are exceptional it is unlikely to be in the public interest.
  • DPP’s consent, to be read in accordance with section 1(7) Prosecution of Offences Act 1985, is required for proceedings against any male for offences of buggery or for aiding, abetting, counselling, procuring or commanding those offences where either male was under the age of consent.

Code for Crown Prosecutors:

For offences where the victim was under 16 years at the material time (or under 18 for offences which occurred before 8th January 2001) the following Public Interest considerations may apply:

  • Where age is the relevant factor, the mischief is the seduction or corruption of the young.
  • The relationship between the parties is a relevant consideration.
  • Additional Public interest factors
    • The nature of the relationship between the parties,
    • the age of the parties and any gap between them,
    • any breach of trust,
    • any exploitation of position or influence – a stable relationship may indicate an absence of exploitation,
    • whether the offence represents a phase of adolescent sexual exploration.
Indecent assault
  • On a woman, contrary to section 14 Sexual Offences Act 1956.
  • On a man, contrary to section 15 Sexual Offences Act 1956.

Key Points:

  • An intentional assault (any unlawful touching) of the victim must be established.
  • The assault or the assault and the circumstances accompanying it must be capable of being considered by right-minded persons as indecent.
  • It must be established that the defendant had the intention to commit not just an assault but an indecent assault.
  • With respect to establishing indecency where it is not immediately clear from the facts of the case the jury is entitled to consider surrounding factors including the relationship, if any, between the defendant and the victim and how the assault/touching came about as per R v Court [1989] AC 28 HL.
  • A boy or girl under 16 cannot consent to an act which would otherwise be an assault but any such consent by the victim would be relevant when considering the public interest in prosecuting.
  • Due to the change in sentencing powers consideration should always be given to specifying the age of a girl or boy in older cases, if under 16.
  • Section 2 of the Indecency with Children Act 1960 as amended by section 37 and schedule 2(17) of the Sexual Offences Act 1956, increased the maximum sentence from 2 years to 5 years: "if on a girl under thirteen who is stated to have been so in the indictment".
  • In cases where a victim under the age of 16 has consented in fact a defendant is entitled to be acquitted where he held an honest belief that the complainant was 16 or over and he genuinely believed she was consenting R v K [2001] 3 W.L.R. 471.
  • Section 6 unlawful sexual intercourse in relation to a victim who was under 16 years is subject to a 12 month time limit and is therefore unavailable. It is an abuse of process to charge indecent assault under section 14 to avoid the 12 month time limit R v J [2005]1 A.C. 562 HL.

Code for Crown Prosecutors:

A boy or girl under the age of 16 years cannot consent to an act which would otherwise be an assault. However, if the victim did in fact consent this would be relevant when considering the public interest in prosecuting.

Key factors when considering the public interest in prosecuting include:

  • The age of the defendant in relation to the victim;
  • The emotional maturity of the victim and whether the sexual relationship was entered in to willingly;
  • The relationship between the parties;
  • Any duty of care or breach of trust.
Indecency with Children Act 1960 – Section 1

Key points:

  • Prior to the implementation of the Indecency with Children Act 1960 there was no offence covering a situation where the defendant caused a child to touch him or another in a sexual manner or committed a sexual act in the presence of a child for his (defendant’s) own sexual gratification.
  • The 1960 Act provides for the offence of gross indecency with/towards a child or incitement of a child to commit an ac of gross indecency with a defendant or another person
  • Allowing a young child’s hand to remain on defendant’s penis for five minutes without more amounted to an ‘invitation’ to continue the indecent activity and an ‘act’ for the purposes of the legislation as per R v Speck (1977) 65 Cr App R 161.
  • A genuine belief that the complainant was 16 amounts to a defence
  • 1 October 1997 the maximum sentence for offence increased from 2 years imprisonment to 10 years imprisonment.
  • For offences committed up until 11 January 2001, the acts of indecency had to be committed on a child under the age of 14 years. From 11 January 2001 the section applied to children under the age of 16 years.
  • In force from 02/07/1960 until 30/4/2004.
  • From 1 May 2004 Section 10 of the Sexual Offences Act 2003 covers this offence.

Charging Practice:

There is no defence of mistaken reasonable belief in the age of the complainant.

  • Prosecutors must check the indictment is correctly framed in relation to the age of the complainant and the threshold age for the offence, bearing in mind the changes in the legislation.

Statutory Limitations on prosecution of offences committed abroad

Introduction

This section should be considered in conjunction with the CPS prosecution guidance on Jurisdiction.

When considering sexual allegations that have been committed outside the United Kingdom prosecutors must firstly consider the dates of the incidents and the age of the complainant at the relevant time. Prosecutors are often required to review non-recent allegations and the legislation regulating sexual offending committed outside the United Kingdom has changed a number of times. The dates of the allegations and the age of the complainant will determine what, if any, charges can be considered. Where allegations are part of a course of conduct or series of events the prosecutor should consider drafting a chronology of incidents so that the appropriate legislation can be applied. 
Prosecutors should refer to Annex B for a quick guide to the legislation that was in force.

International Inquiries

The obligation under the Criminal Procedure and Investigations Act 1996 Code of Practice to pursue all reasonable lines of inquiry applies to overseas material, see guidance in chapter 35 of the Disclosure Manual on International Disclosure Issues for further details. If it is a reasonable line of inquiry to obtain material from overseas, then prosecutors should consider their strategy at the earliest stage. If the CPS has a Liaison Prosecutor for the specific country, then the prosecutor should contact them as soon as possible to assist. The case strategy should consider the potential for co-operation with overseas partners informally or, particularly if they have commenced their own investigation into related offending, through formal mechanisms such as Eurojust or Joint Investigation Teams. Consideration should also be given to the issue of concurrent jurisdiction within the Jurisdiction prosecution guidance.

If the offending occurred wholly outside of the United Kingdom or if there is no link to incidents that occurred within the United Kingdom prosecutors should consider whether there is jurisdiction to commence proceedings in the UK (see Jurisdiction prosecution guidance). If there is no jurisdiction to prosecute the matter within the UK consideration should still be given to whether a transfer of crime and/or transfer of proceedings to the relevant jurisdiction is appropriate or possible. Each case must be considered on its own facts.

If the suspect resides outside the United Kingdom prosecutors should consider the extradition agreement with the relevant jurisdiction. There may be nationality bar restrictions which prevent extradition and alternatives such as transfer of crime and/or proceedings should be identified early. If extradition is considered, prosecutors should follow the Extradition - to the UK prosecution guidance.

Prosecutors should also consider the needs of witnesses including their location, victim support and whether equivalent special measures are available in the other jurisdiction. If the witnesses are overseas early consideration of whether they can give evidence by video link should be completed and this will usually require an application for mutual legal assistance. Prosecutors should be aware that if a witness is to give evidence via video link a fixed date for the hearing must be set and the request for mutual legal assistance made as early as possible.

For further information on the obtaining of evidence from abroad, including mutual legal assistance, see the International prosecution guidance which includes country specific guidance.

Statutory Limitations

Prior to 1 October 1996 there was no power for English and Welsh courts to try any sexual allegations that occurred outside the United Kingdom. If the police refer such a case, the prosecutor should consider the options. The case may involve a series of incidents some of which occurred outside the United Kingdom. If most of the acts were committed in the United Kingdom and the prosecutor authorises charges, they should consider whether a bad character application can be advanced to admit the evidence of the acts that occurred outside the United Kingdom.

Sexual Offences (Conspiracy and Incitement) Act 1996

On 1 October 1996 the Sexual Offences (Conspiracy and Incitement) Act 1996 came into force. This act made it an offence to conspire to commit, or to incite the commission of certain sexual acts abroad against children. Section 1 relates to conspiracy to commit certain sexual acts outside the United Kingdom and section 2 relates to incitement to commit certain sexual acts outside the United Kingdom.

Prosecutors should note that section 1 was repealed by the Criminal Justice (Terrorism and Conspiracy) Act 1998 and replaced by section 1A of the Criminal Law Act 1977 which came into force on 4 September 1998. The Attorney General’s consent must be obtained before any proceedings for an offence triable by virtue of section 1A are instituted. See the prosecution guidance on Consents to Prosecute for further details.

Section 2 remains in force and from 1 May 2004 it applies to the following offences:

  • Sexual Offences Act 2003 sections 1 to 12, 14 and 15 to 26 (complainant must be aged under 16)

Whilst section 1 and 2 relate to sexual conduct that is committed outside the United Kingdom a party to the agreement or incitement must join or commit an act or omission in England or Wales. This means that there is no power to try allegations that have been committed wholly outside England and Wales. These offences are aimed at persons within England and Wales who plan to commit sexual offences or incite sexual offences to be committed outside the United Kingdom.

Section 1 requires four conditions to be satisfied and prosecutors must ensure that each condition is fulfilled when considering a charge.

Section 2 applies where:

  • any act done by a person in England and Wales would amount to the offence of incitement to commit a listed sexual offence but for the fact that what he had in view would not be an offence triable in England and Wales,
  • the whole or part of what he had in view was intended to take place in a country or territory outside the United Kingdom, and
  • what he had in view would involve the commission of an offence under the law in force in that country or territory.

Any act of incitement by means of a message (however communicated) is to be treated as done in England and Wales if the message is sent or received in England and Wales.

These sections only apply to a limited number of offences and only if the complainant is under the age of 16 years when the incident occurred. The offences which they apply to are as follows:

Sexual Offences Act 1956:
  • section 1 (rape, complainant must be aged under 16)
  • section 5 (intercourse with girl under the age of thirteen)
  • section 6 (intercourse with girl under the age of sixteen)
  • section 12 (buggery, complainant must have been under 16)
  • section 14 (indecent assault on a girl, complainant must have been under 16), and
  • section 15 (indecent assault on a boy, complainant must have been under 16)
Indecency with Children Act 1960:
  • section 1 (indecent conduct towards young child)
Sexual Offenders Act 1997

Section 7 of the Sex Offenders Act 1997 came into force on 1 September 1997 and it extended the jurisdiction of the courts of England, Wales and Northern Ireland. It only applies to a limited number of offences listed within schedule 2 and only if the complainant is aged under 16 years at the time of the incident. Section 7 applies to acts committed in a country or territory outside the United Kingdom and the acts must have constituted an offence under the law in that country or territory. This is taken as satisfied unless the defence serve a notice on the prosecution, but prosecutors must ensure that the condition is met before instigating proceedings.

To rely on this section the suspect must on 1 September 1997 have been or have subsequently become, a British citizen or resident in the United Kingdom.

Section 7 applies to the following offences listed at schedule 2 of the Act:

Sexual Offences Act 1956:
  • section 1 (rape complainant must be aged under 16)
  • section 5 (intercourse with girl under 13)
  • section 6 (intercourse with girl between 13 and 16)
  • section 12 (buggery, complainant must be aged under 16)
  • section 14 (indecent assault on a girl, complainant must be aged under 16)
  • section 15 (indecent assault on a boy, complainant must be aged under 16)
  • section 16 (assault with intent to commit buggery, complainant must be aged under 16)
Indecency with Children Act 1960:
  • section 1 (indecent conduct towards young child)
Protection of Children Act 1978:
  • section 1 (indecent photographs of children)
Sexual Offences Act 2003

Section 7 was repealed and replaced by section 72 of the Sexual Offences Act 2003 on 1 May 2004. If a person commits an act abroad, which is an offence in that country or territory, that person can be prosecuted in the UK for the offence if it is a sexual offence listed in Schedule 2 of Sexual Offences Act 2003. Proceedings relating to offences committed abroad can only be brought against a person who was on 1 September 1997, or has since become, a British Citizen or person who is resident in the UK.

An amended section 72 was substituted by the Criminal Justice and Immigration Act 2008 which came into effect on 14 July 2008. This amendment made significant changes to the residency and nationality conditions. In this section a person meets the residence or nationality condition at the relevant time if the person is a United Kingdom national or a United Kingdom resident at the time when the proceedings are brought.

It is important to ensure that any prosecution is brought under the provision in force at the time the alleged conduct occurred as the terms of the substantive provisions and details of the offences they cover are not identical. For offences from 1 May 2004 to 13 July 2008 see section 72 of the Sexual Offences Act 2003 (as enacted) and for offences from 14 July 2008 onwards see the amended section 72 of the Sexual Offences Act 2003.

Domestic Abuse Act 2021

On 29 June 2021 section 74 and Schedule 3 of the Domestic Abuse Act 2021 inserted a new section into Schedule 2 of the Sexual Offences Act 2003. Section 1A of Schedule 2 of the Sexual Offences Act 2003 extends the definition of a victim for the purposes of section 72 of the Sexual Offences Act 2003 to include individuals who were aged 18 or over at the time of the allegation. This means that English and Welsh courts can try offences contrary to sections 1 to 4 of the Sexual Offences Act 2003, involving adult victims, that occurred outside the United Kingdom if the conditions of section 72 of the Sexual Offences Act 2003 are met. This includes a requirement that the act was committed by a United Kingdom national or resident.

The principle that offences should be tried in the jurisdiction in which they occurred remains and prosecutors must carefully consider whether it is appropriate to charge offences that occurred wholly or partly outside the United Kingdom. Prosecutors must also be mindful of their obligations under the CPIA, CPIA Codes of Practice and Attorney General’s Guidelines on Disclosure when considering whether to charge offences that occurred outside the United Kingdom. Prosecutors must be satisfied that reasonable lines of enquiry are pursued, and disclosure obligations are complied with. This may impact on the ability to instigate charges and matters must be considered on a case-by-case basis.

The unique position with offending occurring in Scotland and Northern Ireland

The wording within the Sexual Offences (Conspiracy and Incitement) Act 1996, the Sex Offenders Act 1997 and the Sexual Offences Act 2003 refers to acts that occur outside the United Kingdom. This means that there is no power for English and Welsh Courts to try acts that occurred in Scotland or Northern Ireland. If a case is referred to a prosecutor where there are a series of acts some of which have occurred in Scotland or Northern Ireland the prosecutor should carefully consider the position.

Sections 54A and 54B of the Sexual Offences (Scotland) Act 2009 (SOSA 2009) make provisions for certain specified sexual offences against under 18s (as specified in Part 2 of Schedule 4 of SOSA 2009) committed elsewhere in the United Kingdom to be prosecuted in Scotland. Prosecutors in Scotland are only able to prosecute an offence committed in England if they are also prosecuting another sexual offence against a person aged under 18 that occurred in Scotland on the same indictment/complaint. The effective date for the provision is 1 December 2010 and it is not retrospective. These cases must be referred to the Director of Legal Services Team as they require the Director of Public Prosecutions' consent.

The consequence of this means that sexual acts committed in Scotland cannot be added to an indictment in England or Wales whereas the Scottish court could add acts that occurred in England and Wales if specific criteria are met. Given the benefits of one single trial, this is a factor to be considered where separate but related offences take place in each jurisdiction.

Note also that the SOSA 2009 provisions allow Scotland to prosecute a case where it cannot be proved whether the offence took place in England or Scotland, such as when it takes place on a train traveling from one country to the other, but the trains location is not known at the time of the offence. Again, there is no equivalent statutory provision in England so in such scenarios a prosecution should take place in Scotland. If it is decided to refer the case to the Scottish authorities the prosecutor should notify the Fiscals Office. The Scottish police will then carry out a separate investigation, liaising with the English police.

Art. 76 of the Sexual Offences (Northern Ireland) Order 2008 mirrors section 72 of the Sexual Offences Act 2003. This therefore means that the Northern Irish courts have no jurisdiction to try acts that occur in England and Wales. If there are a series of acts occurring in Northern Ireland and England or Wales, it may be necessary to have separate trials in each jurisdiction and potentially apply to admit bad character to adduce the evidence of cross jurisdictional offending.

Accepting pleas in RASSO cases

Should a defendant plea in a RASSO case prosecutors must review and consider the following guidance: The acceptance of pleas and the prosecutor's role in the sentencing exercise.

Chapter 9: Allegations involving children and young people

Introduction

For the purposes of this chapter, the terms ‘child’ and ‘children’ will be used to refer to all young people below the age of 18. Prosecutors should review the separate prosecution guidance on Children as Suspects and Defendants for more information on the CPS’s approach to cases that involve offences committee by children.

Principal Aim of the Youth Justice System

When making decisions in cases that involve allegations of sexual offending committed by children, prosecutors must have regard to the principal aim of the Youth Justice System (YJS), which is to prevent offending by children, as part of a ‘Child First’ approach. ‘Child First’ justice is the belief that children coming to the attention of the Youth Justice System are seen as ‘children’ first and ‘offenders’ second.

In any case that involves a child suspect, there are additional obligations placed upon prosecutors. These obligations are set out in fuller detail in the separate prosecution guidance on Children as Suspects and Defendants.

Before reaching a decision to prosecute a child, prosecutors must consider the full circumstances of the offence, all the information about the child’s background, any relevant CPS policies and guidance (including those listed below), and the public interest factors set out in the Code for Crown Prosecutors. Failure to do so may result in proceedings for judicial review, as per R (on the application of E) v Director of Public Prosecutions [2011] EWHC 1465 (Admin).

If an allegation of any sexual abuse committed by a child has been fully investigated and there is sufficient evidence to justify instituting proceedings then prosecutors must carefully consider the balance of the public interest before commencing proceedings. Positive action may need to be taken at an early stage in case that involves offending of this type. Although a youth caution or youth conditional caution may provide an acceptable alternative to a prosecution in some cases, in reaching any decision the police and the CPS will have to take into account fully the view of other agencies involved in the case (as detailed below).

Prosecutors should refer to the following relevant CPS policies and guidance:

  • the relevant offences listed in the Key Legislation chapter of this RASSO prosecution guidance;
  • if the victim is also a child, any relevant sections in the prosecution guidance on Child Sexual Abuse;
  • any relevant sections in the prosecution guidance on Children as Suspects and Defendants (including the guidance on public interest considerations); and,
  • the relevant sections of the Code for Crown Prosecutors (including the specific consideration given in the Code to children, in particular at 4.14(d)).

Prosecutors should also obtain and consider:

  • the views of the local authority children’s and young persons’ services;
  • if one has already been completed, an assessment or report by the local authority or Youth Justice Service (YJS) such as an AIM assessment (Assessment, Intervention and Moving On);
  • background information and history of similar conduct by the parties;
  • the views expressed by the victim and the views of the families of all parties;
  • information about the relationship between the parties and the consequences for the victim of the decision whether or not to prosecute.

Sexual offences committed by children against other children

Key Points

When applying the public interest test to any case that involves an allegation of a sexual offence committed by a child against another child (sometimes referred to as ‘child-on-child’ sexual offending), prosecutors must be careful to distinguish between genuinely consensual sexual activity between children of a similar age and maturity, and conduct that involves coercion, grooming, exploitation, or abuse of trust.

In all cases of child-on-child sexual offending, careful regard should be had to:

  • the respective ages of both parties, including the age difference between them;
  • the respective sexual and emotional maturity of both parties;
  • the existence and nature of any relationship;
  • any evidence of coercion, grooming, exploitation, or abuse of trust; and,
  • the harm caused to the victim, including any emotional or physical effects.

There is a statutory presumption that children under the age of 18 will be tried in the youth court. However, as is set out in this chapter’s guidance on allocations (below), an exception may allow for the child defendant to be tried in the Crown Court if the offence is a ‘grave crime’ and the court considers that it ought to be possible to sentence them to more than two years’ detention if found guilty of the offence. A number of sexual offences that may be committed against children constitute ‘grave crimes’, including:

  • offences committed against children under 13 contrary to s.5-8 SOA 2003 (as these are punishable for adults with imprisonment for 14 years or more for the purpose of section 24 Magistrates Court Act 1980 and section 249(1) Sentencing Act 2020);
  • child sex offences committed by children or young persons under 18 contrary to s13 SOA 2003;
  • sexual activity with a child family member contrary to s.25 SOA 2003; and,
  • inciting a child family member to engage in sexual activity contrary to s.26 SOA 2003.

Nevertheless, the presumption remains that child defendants should be tried in the youth court and, if necessary, committed to the Crown Court for sentence following trial. When considering whether a case of child-on-child sexual offending warrants being tried in the Crown Court due to being a grave crime, prosecutors should have careful regard to this chapter’s guidance on allocations (below).

Sexual offences against children under 13

  • When considering a case involving a sexual offence committed by a child suspect under the age of 18 years against a child victim under 13 years, a mistaken belief on the part of the suspect that the victim was aged 16 or over is not a defence. However, in such circumstances, action falling short of prosecution may be appropriate. 
  • If the sexual activity was in fact genuinely consensual and the child suspect and child victim under 13 years are fairly close in age and development, then a prosecution is unlikely to be appropriate. In R v G [2008] UKHL 37, Lord Hope commented that:

“A heavy responsibility has been placed on prosecuting authorities, where both parties are of a similar age, to discriminate between cases where the proscribed activity was truly mutual on one hand and those where the complainant was subjected to an element of exploitation or undue pressure. In the former case more harm may be done than good by prosecuting”.

  • There is a fine line between sexual experimentation and offending. In general, child suspects under 13 should not be criminalised for sexual behaviour in the absence of coercion, grooming, exploitation, or abuse of trust.
  • Where a very young child has been groomed by an older child, or a baby sitter in a position of responsibility has taken advantage of a child under 13 in his or her care, then a prosecution is likely to be in the public interest.
  • The Referrals, approvals and notifications guidance requires that, where both the suspect and the victim were under the age of 13 at the time of the offence, any decision to charge, take no further action, terminate proceedings, or substantially alter charges must be referred to the Chief Crown Prosecutor – except when the decision to take no further action or terminate proceedings is due to the evidential stage of the Code Test not being satisfied.

Sexual offences committed against children under 16 years of age

  • If the sexual activity was in fact genuinely consensual and the child suspect and child victim under 16 years are fairly close in age and development, a prosecution is unlikely to be appropriate in the absence of aggravating features or evidence of coercion, grooming, exploitation, or abuse of trust.
  • An offence is not committed contrary to section 13 SOA 2003 if the complainant is 13 or over but under 16 years, the complainant consented to the activity, and the suspect reasonably believed the complainant was over 16 years of age.

Sexual abuse involving child siblings

  • In cases of sexual activity between child siblings, careful consideration must be given to balancing the public interest in prosecuting such conduct with the interests and welfare of the victim and the family unit (including the potential impact of any prosecution on them).
  • The views of relevant safeguarding agencies should always be sought.
  • As a general rule, if the sexual activity was genuinely consensual, then alternatives to prosecution should be sought (typically a multi-agency response focused on safeguarding the children concerned and addressing any harmful sexual behaviour).
  • Prosecution should be considered when there is significant disparity in age, or when there is any evidence of coercion, grooming, or exploitation.

Children who are sexually exploited

  • Some children are persuaded, lured, or forced, or trafficked into sexual exploitation. They should always be regarded as victims of abuse, rather than as suspects. The CPS will always seek to prosecute those who organise child sexual exploitation and who benefit financially from abusing children.
  • Section 1 of the Street Offences Act 1959 was amended by section 68(7) of the Serious Crime Act 2015 so that the offence of persistently loitering or soliciting in a street or public place for the purposes of offering services as a prostitute applies only to persons aged 18 or over. In so doing, it recognises that children in such circumstances are victims rather than suspects.
  • The sexual exploitation of children for payment should be prosecuted under sections 47-50 of the Sexual Offences Act 2003, which covers the prosecution of those who pay for sexual services from a child, who have caused, incited, arranged, or facilitated the sexual exploitation of a child, or who have controlled a child in relation to sexual exploitation.
  • Sexually exploited children may be girls or boys. They are likely to be extremely vulnerable and may have complex emotional or psychological needs. Where such children are identified, the immediate priority should be to safeguard them and ensure they are supported and removed to a place of safety by the police.
  • When reviewing a case involving the sexual exploitation of children it is essential that prosecutors are aware of and familiar with the latest version of the multi-agency guidance on child sexual exploitation: ‘Child Sexual Exploitation: Definition and Guide for Practitioners’. The aim of this guidance is to both safeguard and promote the welfare of children, and to encourage the investigation and prosecution of criminal activities by those who coerce, exploit and abuse children.

Charging non recent sex offences committed whilst suspect was a child

Doli Incapax

The rebuttable presumption at common law which applied to all offences committed prior to abolition on 30 September 1998 that a child of not less than 10 but under 14 years was incapable of committing a crime and was Doli Incapax. The presumption was abolished by section 34 of the Crime and Disorder Act 1998.

The presumption applies to non-recent offences prior to enactment of section 34 and was only rebutted if the prosecution can prove beyond reasonable doubt that the child committed the act with the appropriate intent and that he knew that the act was “seriously wrong” and not merely naughty or mischievous.

When evaluating the evidence in the case a prosecutor must consider how doli incapax can be rebutted. The evidence in the case may provide the means to rebut the presumption (Bevan [2011] EWCA Crim 654).

“Offences” precluded from prosecution by virtue of Doli Incapax can be adduced as bad character as per R v DM [2016] EWCA Crim 674.

Common Law irrebuttable presumption

Prior to the commencement of the Sexual Offences Act 1993 on 20 September 1993 an irrebuttable common law presumption existed that a boy under the age of 14 was incapable of vaginal or anal intercourse.

A defendant cannot be convicted of rape where the relevant events occurred before 20 September 1993 and at that time he was under 14.

Where the irrebuttable presumption applies evidence of penetration can still be adduced and the case can be dealt with as an indecent assault in accordance with R v Williams [1893] 1 QB 320. For a useful discussion of the law around the use of an indecent assault charge as an alternative to rape see the case of R v D [2014] EWCA Crim 1683.

Applying the Code for Crown Prosecutors

When considering non-recent sexual offending that was committed when the now-adult suspect was a child, prosecutors should consider the prosecution guidance on the public interest in prosecuting non-recent cases where a Nominal Penalty is likely, in addition to the general public interest factors set out in the Code.

A prosecutor must consider the factors set out in in the Code at paragraph 4.14 (a)-(g) when considering the public interest. If the defendant was a child at the time of the offence, then it is also essential that the additional public interest considerations for sexual offences committed by children are considered.  In considering their decision, prosecutors should have regard to the likely sentence that could be imposed should the defendant be found guilty. To inform this, prosecutors should read and consider the Sentencing chapter in this guidance, which includes a dedicated section on Sentencing non-recent offences committed whilst the offender was a youth. 

Public interest factors to be considered will include the following:

  • The seriousness of the offence and offending, including whether it took place on multiple occasions or against multiple victims. The more serious it is, the more likely it is to be in the public interest to charge. Minor sexual offences committed when the suspect was a child should not normally be charged.
  • The impact of the offending on the victim.
  • If it was a single instance of offending, whether the suspect has committed any further offences.
  • The relative ages of the suspect and victim at the time of the offence – the greater the age differential the more likely it is to be in the public interest to prosecute.
  • Whether the offending can be properly described as sexual experimentation between consenting young people.
  • Whether there an abuse of trust arising out of the relationship between the parties, for example, was the suspect acting as baby sitter for a young child.
  • Whether the offending was investigated and dealt with in accordance with the relevant policies at the time of the offence. If so, it will not now be in the public interest to prosecute unless there are exceptional circumstances.

The Allocation Decision

The separate prosecution guidance on Children as Suspects and Defendants contains more detailed information on the jurisdiction of the youth court and relevant considerations surrounding the allocation of cases.

There is statutory presumption that children under the age of 18 will be tried in the youth court (section 24(1) of the Magistrates’ Court Act 1980). There are a limited number of exceptions that allow for children to be tried in the Crown Court:

  • the offence is a grave crime, as defined by section 249(1) Sentencing Act 2020, and the court considers that it ought to be possible to sentence the defendant to more than two years’ detention if found guilty of the offence;
  • the dangerousness provisions apply under the Criminal Justice Act 2003; or
  • the child is jointly charged with an adult and it is in the interests of justice for the case to be tried together in the Crown Court.

The reviewing lawyer should assist the court to determine the appropriate venue by addressing whether these exceptions apply within their evidential review, and by drawing the court’s attention to the relevant sentencing authorities, any aggravating and mitigating factors, and setting out the relevant points to be considered.

When considering the likely sentence for the purpose of grave crime arguments, prosecutors should refer to:

For a comprehensive review of appeal cases in relation to venue, see the case of BH (a child) v LLandudno Youth Court [2014] EWHC 1833 (Admin). The Youth Court Bench Book (YCBB) also contains helpful commentary regarding venue.

Following the introduction of s.53 Criminal Justice and Courts Act 2015, it is possible for children who have been tried and convicted of a grave crime in the youth court to be committed to the Crown Court for sentencing. As per R (on the application of the DPP) v South Tyneside Youth Court [2015] EWHC 1455 (Admin), a child might be tried in the youth court in relation to an offence falling within section 91 of the 2000 Act and then committed for sentence of long-term detention in excess of two years under section 91(3).

Where more than one defendant is involved the allocation decision must be considered separately in relation to each defendant.

Fitness to Plead in the Youth Court

There is no test for unfitness to plead in the magistrates’ and youth courts. Under ss.37(3) of the Mental Health Act 1983, (MHA) if the defendant is suffering from a treatable “mental disorder” (as defined by s.1 MHA 1983), then the court can impose a hospital order, or a or a guardianship order, if satisfied that the defendant “did the act or made the omission”.

There may be an application for a stay of the proceedings on the basis that the defendant is unable to participate effectively and cannot therefore have a fair trial, relying on art.6 of the European Convention on Human Rights. This is an exceptional remedy, and one which benches are typically slow to grant, even in the case of young defendants (CPS v P [2007] EWHC 946 (Admin)). Whilst staying the proceedings will call a halt to the prosecution, it offers no disposal to address the concerning behaviour which led to the charge.

Chapter 10: Consent

Introduction

Consent should be carefully considered when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Sometimes consent is given, or appears to be given, that is ostensible consent, but it is not true consent in the particular context in which the offending has occurred, for example in cases where a young complainant has been groomed. It is important to make a distinction between consent and mere submission, acquiescence or compliance.

Toolkits on consent have been created to assist investigators, prosecutors and advocates when considering issues in relation to consent and evaluating the evidence in a case.

Sexual Offences Act 2003

The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. They are:

  • rape
  • assault by penetration
  • sexual assault
  • causing a person to engage in sexual activity

In relation to these offences, a person (A) is guilty of an offence if (s)he:

  • Acts intentionally;
  • (B) does not consent to the act;
  • And (A) does not reasonably believe that B consents.

In relation to many other offences there is no requirement to prove an absence of consent. Only the act itself and the age of the victim/complainant or other criteria need to be proved. They include:

  • rape of a child under 13
  • assault by penetration of a child under 13
  • sexual assault of a child under 13
  • inciting or causing a person to engage in sexual activity with a child under 13
  • child sexual offences involving children under 16
  • children under 18 having sexual relations with persons in a position of trust
  • children under 18 involved with family members over 18
  • persons with a mental disorder impeding choice
  • persons with a mental disorder who are induced threatened or deceived
  • persons with a mental disorder who have sexual relations with care workers

Statutory definition of consent

Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. Prosecutors should consider this in two stages. They are:

  1. Whether a complainant had the capacity (that is the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
  2. Whether he or she was in a position to make that choice freely, and was not constrained in any way.

Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

Prior to the 2003 Act there was no statutory definition of consent but the section 74 definition is commonly referred to in pre 2003 Act cases as a guide to how the jury should approach the issue of consent.

Reasonable belief in consent

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1 - 4). It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

The 2003 Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the suspect in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.

  • Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
  • If so, did the suspect reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

There is no requirement to communicate lack of consent. In R v Malone [199​8] 2 Cr App R 447, the Court of Appeal confirmed that the actus reus of rape imported no requirement that the complainant demonstrate or communicate to the defendant a lack of consent. What was required was some evidence to be put before the jury of lack of consent, and the nature of that evidence depended on the circumstances of the case. Such evidence may include that the complainant was incapable of consenting or knowing what was happening due to the influence of drink or drugs.

Intoxication and consent

The issue of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs. Prosecutors must be familiar with a number of key cases on this topic.

A complainant does not consent if they are incapacitated through drink. The prosecutor should consider carefully whether the complainant retains the capacity to consent. R v Bree [2007] EWCA Crim 804 paragraph 34.

A complainant does not need to be unconscious through drink to lose their capacity to consent. Capacity to consent may evaporate before a complainant becomes unconscious. A prosecutor must consider the complainant’s state of mind at the time of the alleged assault. R v Bree [2007] EWCA Crim 804 paragraph 34.

Evidence of a lack of recollection of events cannot of itself be determinative of issues of consent and capacity.

Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine. R v Hysa [2007] EWCA Crim 2056.

See also R v Kamki [2013] EWCA 2335 for directions in relation to consent and intoxication. A further important case where the complainant was strongly affected by alcohol can be found in the interlocutory appeal of R v MA, PA and RS (unreported January 2015; paragraph 1.323, On Sexual Offences, Rook and Ward). There, during cross-examination the complainant accepted that sexual activity could have happened consensually and she may just have had a blank in her memory. However the Court of Appeal held that, in video recordings taken by the defendants, the complainant was depicted throughout as being sufficiently inert and unresponsive as to leave it open to a properly directed jury to be sure that at the relevant times she was not consenting and that she did not have the freedom and capacity to do so.

Complainant’s absence of memory 

In R v Tambedou [2014] EWCA Crim 954 the Court of Appeal held​ that the complainant’s evidence that she could not remember was not sufficient for the judge to remove the case from the jury.

Relevance to consent issue of a provable lie told by the defendant regarding whether sexual intercourse took place

In R v Hysa [2007] EWCA Crim 2056, the Court of Appeal the jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.

Consent and penetration as a continuing act

In accordance with section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw. See New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147.

Consent to serious harm for sexual gratification

A person is unable to consent to the infliction of harm that results in ABH or other more serious injury, for the purposes of obtaining sexual gratification: s.71 Domestic Abuse Act 2021, which codifies the principle set out in the case of R v Brown [1993] 2 WLR 556.

Thus, a defendant will be unable to rely on a victim’s consent to the infliction of such harm as part of any so-called ‘rough sex’ defence, and will remain liable to prosecution for ABH or GBH. An exception remains, in relation to the transmission of sexually transmitted infections (STIs) where, in certain circumstances, a person may consent to the risk of acquiring an STI.

The law applies in all situations and is not limited to those which might also amount to incidents of domestic abuse.

Consent in Child Sexual Exploitation cases

In cases involving the alleged grooming of vulnerable complainants such as children and young people, apparent consent to sexual activity may not amount to consent in law. In these circumstances determining whether to select consensual or non-consensual offences may be complex.

R v Ali and Ashraf [2015] EWCA Crim1279 is of considerable assistance when considering whether to charge non-consensual offences and used the important term “context is all important”. In this case, some guidance was given on how consent should be approached in cases of child sexual exploitation.

Whilst in many cases the complainant's evidence on the issue of consent may be determinative, there will be situations where he or she may have a limited or distorted appreciation or understanding of their role in sexual relations and the true nature of what occurred. In these situations, the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent. Please refer to chapter 8: Key legislation and offences to support consideration of this issue. 

The principle that submission is not consent was clearly established in R v Olugboja [1982] Q.B. 320 and R v Malone (1998) 2 Cr. App. R. 447. 

In R v Robinson [2011] EWCA Crim 916 one of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent. In such a case, a young and immature person may not understand the full significance of what he or she is doing. They may be placed in a position where they are led to acquiesce rather than give proper or real consent. 

In a case where a vulnerable or immature individual has been groomed, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given: R v Hysa [2007] EWCA Crim 2056.

When reviewing cases of child sexual exploitation, prosecutors must consider:

  • The age and maturity of the complainant especially in relation to the suspect;
  • The history of the relationship between complainant and suspect;
  • The presence of any other vulnerability of the complainant such as a learning disability;
  • The existence of grooming through the provision of gifts, alcohol, insincere compliments,  apparent security, a more exciting way of life, attention and false promises;
  • The provision of alcohol and drugs and the effect on the complainant;
  • The use and/or threat of violence and intimidation;
  • The use of other means of control such as emotional or situation control.

There are a number of additional cases involving children where the issue of consent was considered.

In R v PK and TK [2008] EWCA Crim 434 the Court of Appeal  considered the issue of whether true consent existed when a young homeless girl submitted to sexual intercourse in exchange for money to buy food. The question for the Court of Appeal was whether there was sufficient evidence to show a lack of consent. The Court reached the conclusion that in the context of this offence there was sufficient evidence. The court also considered and disapproved of the use of the phrase ‘willing submission’ to describe consent in these circumstances.

Not all grooming will vitiate consent. In R v Robinson [2011] EWCA Crim 916, the Court Appeal held that in circumstances where, due to immaturity, the complainant does not, or may not, have the capacity to understand the full significance of what she is doing, and in particular, where there is evidence of acceptance or acquiescence, then it would be open to the jury to infer she unwillingly went along with the acts, which she did not in fact wish to engage in. This judgment highlights aspects of the evidence in this case which, it was said, could be relied on to infer the acquiescence or acceptance of the complainant rather than positive consent.

In R v C [2012] EWCA Crim 2034 the Court of Appeal considered the situation where sexual abuse continued into adulthood. The Court of Appeal approved the approach taken by the prosecution. The prosecution put its case, not on the basis that the complainant had been groomed in relation to the offences committed whilst an adult, but rather on the basis that the evidence of prolonged grooming and potential corruption of the complainant when she was a child, provided the context in which, the evidence of her apparent consent, after she had grown up, should be examined and assessed.

Evidential presumptions (section 75 SOA 2003)

Section 75 lists the circumstances in which rebuttable evidential presumptions about the absence of consent apply. If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1 - 4), and any of the circumstances specified in section 75(2) existed, and the defendant knew they existed, then: (i) the complainant is to be taken not to have consented and (ii) the Defendant is taken not to have reasonably believed that the complainant consented unless in either case, sufficient evidence is adduced to raise an issue as to the contrary.

The circumstances set out in section 75(2) are:

  • violence or fear of violence, subsection 2(a) and (b)
  • unlawful detention, subsection 2(c)
  • complainant asleep or unconscious, subsection 2(d)
  • complainant’s physical disability, subsection 2(e)
  • administering a substance 2(f)

The evidence raising an issue as to consent and the defendant’s reasonable belief in consent can derive from any source - from the defendant or the cross-examination of prosecution witnesses. Once it has been adduced, no direction under section 75 is then required – the jury decide the issues in respect of consent on the evidence, in the usual way.

Conclusive presumptions (section 76 SOA 2003)

Section 76 provides two conclusive presumptions that the complainant did not consent to the activity and the defendant did not reasonably believe that the complainant consented.

The prosecution must show that the defendant did the relevant act and that either of the circumstances in subsection 2 applies:

  • the defendant intentionally deceived the complainant as to the “nature or the purpose of the act.” (not the nature and quality of the act), or
  • the defendant intentionally induced the complainant to consent by impersonation of a “person known personally to the complainant.”

The first presumption, has been considered in several cases:

  • In R v Jheeta [2007] EWCA Crim 1699 where the defendant had deceived the complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption did not apply because there had been no deception as to the nature or purpose of sexual intercourse.
  • The Court in R v Bingham [2013] EWCA Crim 823 held that section 76 was to be strictly construed and that it would be a rare case in which section 76 would be applied.

Freedom to consent in cases involving ‘conditional consent’

The statutory definition of consent in Section 74 was considered in a number of cases where ostensible consent was considered not to be true consent. The key cases in this area are:

  • Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
  • The Queen (on the app of F) v DPP [2013] EWHC 945 (Admin)
  • R v Justine McNally [2013] EWCA Crim 1051

These are cases in which it is said that ostensible consent was not true consent, either:

  • because of a material deception perpetrated on the complainant by the suspect (other than one which falls within section 76); or
  • because the suspect failed to comply with a condition which the complainant imposed on the giving of his/her consent (which involves a deception by the suspect from the moment he/she made decision not to comply with the condition).

The High Court and the Court of Appeal considered the application of section 74 SOA 2003 in the cases highlighted above where ostensible consent was said to be vitiated. The judgments identified three sets of circumstances in which consent to sexual activity might be vitiated where the ‘condition’ was breached.

In each case the courts considered the sexual autonomy of the complainant and decided that the complainant did not consent to the sexual activity in the terms of section 74 of the 2003 Act, namely she did not agree by choice and have the freedom [and capacity] to make that choice.

The key points from these cases are:

  • There must be ostensible consent at the relevant time, usually at penetration or sexual touching.
  • There must be a deception, other than one which falls within section 76 of the Sexual Offences Act 2003, or a condition upon which the complainant agreed to the act.
  • Prosecutors should avoid defining the “concept” of conditional consent by reference to the topic or subject matter of the condition or deception in question, as these cases are no more than examples of the need to apply all relevant context when deciding issues of free choice under section 74.
  • A condition or deception is an important part of the context but not all of it. Whether consent was absent may well depend on other contexts.
  • The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way,” [Lord Judge CJ in F]. 
  • The imposition of conditions embodies personal sexual autonomy which section 74 was intended to provide. Their contextual importance derives, in part, from the fact they represent positive choices made by a participant to sexual acts about which another participant can be in no doubt.

Although the three cases cited above are said to give rise to the "developing concept of conditional consent" and are considered together in the guidance in this context, they do, in fact, concern different situations. Assange and F are cases where the complainant imposed a specific condition on the giving of her consent to the sexual acts. Those being, in Assange, that the offender should wear a condom throughout the act of intercourse and, in F that he would not ejaculate inside the vagina during the act of intercourse. McNally, on the other hand, concerned a deception perpetrated by the offender during the acts of penetration (and indeed for some considerable time before), namely that she was a man. Whereas Assange and F cases were concerned with an express condition, the case of McNally dealt with a material deception as to gender by the suspect, which was deemed to vitiate consent.

It is important to note that not every case will amount to rape where a condom is not worn even though there was a prior agreement to use one. Prosecutors must consider the overall context in which the offence is alleged to have taken place and the extent to which the actions of the defendant negate the freedom to choose of the complainant or their sexual autonomy. Similarly, every instance where the suspect ejaculates inside the vagina contrary to the wishes of the complainant will not necessarily vitiate consent.

In R v Lawrance (Jason) [2020] EWCA Crim 971, the Court of Appeal considered the circumstances in which deception was capable of vitiating ostensible consent in sexual offences. It clarifies two areas of law:

  • Deception that can vitiate consent. Ostensible consent can be vitiated by deceptions that are closely connected to the nature or purpose of sexual intercourse. "Closely connected" will be interpreted narrowly. The deception must be related to the physical performance of the sexual act, rather than the broad circumstances surrounding it. A lie about wearing a condom is sufficiently closely connected because it physically changes the nature of penetration. In contrast, a lie about fertility is not, because it is not related to the performance of the sexual act.
  • The manner of communication of the deception is irrelevant. In R v B [2006] EWCA Crim 2945, the Court of Appeal held the defendant's failure to disclose his HIV+ status was not capable of vitiating consent. In R v McNally, the Court of Appeal concluded that R v B left open whether an explicit lie might be capable of vitiating consent. This judgment resolves this ambiguity. It matters not whether the suspect deliberately withholds information or states an explicit untruth. The fundamental issue is whether the deception is sufficiently closely connected to the performance of the sexual act.

In R v BVA (2025) EWCA Crim 1359, the defendant filmed himself sexually touching the complainant whilst she slept. The prosecution conceded that the complainant might have allowed the appellant to touch her in a sexual manner while she slept; however, her evidence was that she would not have done so had she known that he intended to film his actions. The defence argued that the filming was a separate matter and did not negate the consent which had been given. The prosecution argued that the filming was so closely connected to the nature and purpose of the sexual activity itself that the appellant's failure to tell the complainant about it negated any consent that she may have given to the sexual touching.

The Court of Appeal agreed with the prosecution’s analysis and upheld the defendant’s conviction stating that: “The authorities on section 74 referred to above are not necessarily always easy to reconcile, and there may be no bright lines to draw.”

Nevertheless, the court drew out some guiding principles:

  • There is no material difference for present purposes.
  • between an express deception or a failure to disclose.
  • The "but for" test is insufficient of itself to vitiate consent.
  • Consent is capable of being negated as a matter of law if the deception (or failure to disclose) relates to the sexual activity itself rather than the broad circumstances surrounding it. The issue is whether the relevant matter was sufficiently closely connected to the sexual activity (by reference to its nature, purpose and performance), rather than the broad circumstances surrounding it.
  • Broad common sense has a role to play in finding the answer but does not relieve a court from the obligation of identifying the boundaries within which a jury should be asked to apply its common sense. A vitiating deception is not limited to the strict (narrow) physical performance of the act.  

However, the Court also emphasised the fact-specific nature of this judgement and confirmed that: “There may be cases when a failure to disclose filming of sexual activity will not vitiate consent, for example when the filming is no more than a background circumstance and an aggravating factor (as identified in the Sentencing Council's Guideline on Sexual Assault). But that is not this case.”

Deception as to sex

All cases involving deception as to sex must be referred to the CCP for prior approval of a decision to charge or NFA and consultation on subsequent decisions which terminate proceedings or substantially alter the charge.

As with all cases, prosecutors must approach cases involving an alleged deception as to sex on the basis of the specific evidence and circumstances revealed by the police investigation.

However, the following information may assist by way of background for prosecutors to understand the context of such a case.

Although the words “sex” and “gender” may be used interchangeably, to refer to the state of being male or female, sex tends to refer to birth sex (sometimes referred to as “sex assigned at birth”) or legal recognition, while gender is commonly used to refer to social or cultural differences or the way in which someone is perceived or experiences themselves (commonly known as “gender identity”). This guidance uses the term “sex” to refer to birth sex and “gender” to refer to gender identity.

A person’s gender identity might be the same as their birth sex (sometimes referred to as “cisgender” but for clarity referred to in this guidance as “non-trans”) or different to their birth sex (transgender / trans or non-binary).

Deception as to birth sex may be relevant to the issue of whether consent to sexual activity was vitiated (negated). Cases in which deception as to birth sex is a live issue may involve either a suspect who is non-trans or a suspect who is trans or non-binary.

Although much of this guidance contains information on trans and non-binary suspects, this is because questions of deception and consent may involve more complex issues where the suspect is trans or non-binary. However, the guidance does not intend to suggest that most such offences are committed by trans or non-binary persons nor that trans and non-binary people are pre-dispositioned to be deceptive. In many cases, the suspect will be non-trans i.e. a woman purporting to be a man or vice versa.

Birth sex

Birth sex refers to the sex that is recorded or registered at the time of birth. This is identified by observation of the infant by a midwife, nurse or doctor or, in some instances, by clinical tests, before being recorded.

Intersex, or variations in sex characteristics (VSC), are individuals born with any of several sex characteristics that do not fit typical binary notions of male or female bodies but are assigned a male or female sex at birth. Their Intersex / VSC condition may present itself at birth or may only become apparent later in life, for example during puberty, depending on the condition. Intersex people may or may not see themselves as having a trans or non-binary gender identity.

Gender incongruence and gender dysphoria

“Gender incongruence” refers to an incongruence or incompatibility between a person’s gender identity and their birth sex. “Gender dysphoria” is a medical diagnosis recognised by the NHS, where a person experiences discomfort or distress, which is related to the incongruity between their birth sex and their gender identity (this is not to suggest that every trans person experiences discomfort or distress). The NHS offers treatment to alleviate the distress, such as counselling, hormone therapy or surgery. Although gender dysphoria is not a mental illness, the sense of unease or dissatisfaction associated with gender dysphoria may be so intense it can lead to depression and anxiety and have a harmful impact on daily life. Where there is evidence that a suspect or defendant is suffering from a mental health condition or disorder, prosecutors should refer to the CPS guidance on Mental Health: Suspects and Defendants.

Trans and non-binary persons – identities

We are aware that terminology and language used in relation to the recognition of people’s identity may depend on the context of its use. Some people may define some terms differently to us. We have tried to use terminology that is generally accepted. No offence or omission is intended.

Transgender or trans is an overarching term used to describe people who have a gender identity that is different to their sex. For example, a trans man is someone whose sex was recorded as female at birth but lives and identifies as a man; and a trans woman is someone whose sex was recorded as male at birth but lives and identifies as a woman.

Trans people may describe themselves using one or more of a wide variety of terms, including transgender, transsexual (even though many now consider this an outdated term), agender (without gender), gender fluid (fluctuating between genders or not having a fixed gender) and genderqueer (often associated with a rejection or subversion of conventional gender categories).

Non-binary people do not identify as a man or a woman but as both or neither. They may or may not consider themselves to be trans.

Gender identity is not the same as sexual orientation; trans people may consider themselves to be heterosexual, gay, lesbian, bisexual, pansexual, asexual or aromantic, amongst other sexual orientations.

Trans and non-binary persons - experiences

How a trans or non-binary person experiences and expresses their gender can be a complex issue. The decision on whether to prosecute must be based on the evidence in each individual case, but the following information is provided for background context, as it may assist prosecutors to make more informed decisions:

  • Many people who have transitioned may not regard themselves as trans, but simply as a man or a woman.
  • Gender identity can be fluid and/or emergent for some persons, particularly for young persons, who may be exploring the nature of their identity and/or sexuality, or for non-binary people, who may identify as a man and a women or neither.
  • A person whose gender identity isn’t the same as their sex may express their gender through their speech, dress, gestures, mannerisms etc, without this being a fabrication, a performance or a deception. (It is important to recognise that non-trans people may also have a multitude of ways to express themselves, even if their gender identity is the same as their sex.)
  • To acquire a Gender Recognition Certificate (see below), a person is required to live in the acquired gender for 2 years. To meet this condition, some may think it necessary to conceal their sex.
  • Some trans people may be wary of revealing their birth sex due to social stigma, transphobia or safety considerations, which may produce high levels of anxiety.
  • Other trans persons may not openly identify as trans in everyday life, such as at home, at school or in the workplace, for fear of a family or relationship breakdown, losing employment, or exclusion from a close-knit community or a place of worship.
  • Intersex / VSC persons may have particular difficulties in communicating their sex to potential sexual partners, as their gender/sex presentation is inherently complex. The language required may not be readily understood unless explained in detail, which they may consider inappropriate.

Gender Recognition Certificate

The Gender Recognition Act 2004 (GRA) provides individuals with the opportunity to be legally recognised in their affirmed gender identity by obtaining a Gender Recognition Certificate (GRC).

Under section 9 GRA, where a GRC is issued, if the acquired gender identity is that of a man the individual is legally male and, if it is that of a woman, the individual is legally female i.e. their legal sex is changed to that of their acquired gender for all purposes, except for a number of circumstances set out in the Act.

Many trans people do not obtain a GRC for various reasons, for example: persons under 18 and persons with gender identities outside the gender binary, including non-binary, are not eligible for a GRC; and some persons may not wish to obtain a medical diagnosis of gender dysphoria, a precondition for a GRC.

For these reasons, a trans or non-binary person’s gender identity should not be considered inauthentic if they have not obtained a certificate.

Although possession of a GRC is therefore unlikely to be relevant in most cases, where it may be a relevant evidential consideration, prosecutors should request information from the police.

Prosecutors should be aware that section 22 of the GRA makes it an offence for a person who has obtained “protected information” in an official capacity to disclose that information to any other person without the individual’s consent. Protected information is information about a person’s application for legal recognition of their affirmed gender or, if they have legal recognition, their history of transition. There are a number of exceptions to section 22 and prosecutors should ensure the information is used only in these contexts, where applicable:

  • S.22 (4)(d): the disclosure is in accordance with an order of a court or tribunal
  • S.22 (4)(e): the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal
  • S.22(4)(f): the disclosure is for the purpose of preventing or investigating crime.

Addressing trans persons - terminology

In accordance with the CPS Trans Equality Statement prosecutors should address trans victims, witnesses, suspects and defendants according to their affirmed gender and name, using that gender and related pronouns in all documentation and in the courtroom.

However, as recognised in chapter 12 of the Equal Treatment Bench Book, there may be occasions where a person’s sex or their history of transition is relevant to the particular legal proceedings and so may be disclosed. There will also be situations where it is appropriate for a witness (for example, a victim of sexual violence or assault by a trans person) to refer to a trans person by pronouns matching their birth sex. In cases where deception as to sex is a live issue such disclosure will clearly be necessary.

R v McNally

The Court of Appeal in McNally v R [2013] EWCA Crim 1051 determined that “depending on the circumstances, deception as to gender can vitiate consent” [27]. McNally was a teenage girl who impersonated a teenage boy when engaging in various forms of penetrative activity with the complainant, during four separate meetings.

Under section 74 Sexual Offences Act 2003 a person consents to the relevant sexual activity if they agree by choice, and have the freedom and capacity to make that choice. In McNally, the complainant’s consent was vitiated because she chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant's deception [26].

Application of McNally to trans and non-binary suspects

The defendant in McNally was not trans or non-binary; she was female but presented as male. To date, there have been no cases considered by the appellate courts involving a trans or non-binary defendant that address this issue.

Although the court in McNally used the word “gender” with regard to the deception in question, it was probably referring to a deception as to sex, as there was no issue of “gender identity” in the case. However, as noted in R (Monica) v DPP (Boyling) [2018] EWHC 3508 (Admin) (see below), McNally could be analysed as an identity or impersonation case.

McNally is therefore authority for the proposition that a deliberate deception as to the defendant’s sex is so connected to the nature of the sexual activity that, depending on the circumstances, it is capable of vitiating consent.

It is arguable that McNally and the other authorities do not conclusively address the position in relation to trans and non-binary suspects. The question remains whether the sexual nature of the act is different where the complainant is deceived into believing that the defendant is not trans or non-binary; and, if so, whether different considerations apply.

Although impersonation / deception as to identity is a potential separate line of authority, this guidance necessarily focuses on deception as to sex, on which McNally provides a clear line of authority, pending any further clarification from the appellate courts.

Other case law

In Monica the Divisional Court conducted an extensive review of the existing case law. In a judgement handed down by Burnett LCJ, the Court accepted that there was no defined list of circumstances which were capable of vitiating consent for the purposes of section 74. The correct approach was derived from the following cases:

  • Assange v Sweden [2011] EWHC 2849 (Admin): “What may be derived from Assange is that deception which is closely connected with ‘the nature or purpose of the act’, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it, is capable of negating a complainant's free exercise of choice for the purposes of section 74 of the 2003 Act” [72].
  • In R (F) v DPP [2013] EWHC 945 (Admin) Judge LCJ stated that “What Assange underlines is that “choice” is crucial to the issue of “consent” ... The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way” [26]. In respect of R (F) Burnett LCJ commented, “Although there was no deception as to the nature and purpose of the sexual act, the deception was closely connected with it.”
  • McNally: Burnett LCJ commented, “it is clear that the court was holding that the deception … did relate to the sexual nature of this activity.” He also agreed that McNally could be analysed as an identity or impersonation case, “given the centrality of an individual’s sexuality to her or his identity” [77].

The subsequent case of R v Lawrance [2020] EWCA Crim 971 qualified McNally in relation to the type of deception that is capable of vitiating consent.

The court in McNally characterised the appellant’s actions as a deliberate deception [26], having noted a distinction in case law between a failure to disclose and deliberate deception, in particular in R v B [2006] EWCA Crim 2945 (where a failure to disclose HIV status did not vitiate consent).

However, in Lawrance (where it was held that deception as to fertility did not vitiate consent), in giving judgment Burnett LCJ stated: “it makes no difference to the issue of consent whether, as in this case, there was an express deception or, as in the case of R v B, a failure to disclose” [41]. The court also observed that: “deceit and deception are very slippery concepts which, at one end of the spectrum, may result from a clear short lie, through more obscure utterances, obfuscation or evasion, to conduct designed to convey an unspoken false impression. In this area it is difficult to draw clear principled lines which could distinguish a deceit resulting from one course from another” [40].

From these authorities, the following principles emerge:

  • For consent to be vitiated by a deception falling within section 74, the deception must be closely connected with the sexual act or the sexual nature of the activity rather than its consequences or the broader circumstances in which the sexual act takes place.
  • Any novel circumstances must be considered by reference to the statutory definition, namely whether the alleged victim has agreed by choice and has the freedom and capacity to make that choice.
  • Consent can be vitiated by an express deception or by a failure to disclose.
  • Therefore, the test to be applied is whether a deception (however that deception is operated) is sufficiently closely connected to the performance of the sexual act that the complainant cannot be said to have made a free choice to participate in it.

Accordingly, the current principles to be applied in cases involving trans or non-binary suspects are:

  • Depending upon the circumstances of the case, a trans or non-binary person (including those who have a GRC and / or have had gender reassignment) may deceive a complainant as to their sex if they choose not to disclose that they are trans / non-binary, or if they make a deliberate false assertion or lie in respect of their sex and / or gender identity.
  • By reference to section 74, the test to be applied is whether the non-disclosure or representation is so closely connected with the sexual nature of the relevant act that it deprived the complainant of their freedom to choose whether to have sexual relations with the suspect.

Evidential considerations

The principles set out in this section apply to all cases, whether the suspect is non-trans, trans or non-binary.

The issues in a case involving an allegation of deception as to sex may vary. For example:

  • A female non-trans suspect, who is alleged to have impersonated a male, may claim that the complainant was a lesbian who consented to have sex with her, knowing the suspect was female.
  • A trans suspect may claim that they disclosed their gender identity and / or sex to the complainant, who disputes it.
  • A non-trans or trans suspect may accept that there was no express disclosure but claim that the complainant must have known the suspect’s gender identity and / or sex, due to the suspect’s appearance and / or the nature of their relationship and communications.
  • A non-trans or trans suspect may claim they reasonably believed that the complainant consented because the complainant attached no importance to the gender identity and / or sex of their sexual partners.

It may assist to consider the question of deception in three stages, even though these may overlap to various degrees, depending on the issues in the case:

  1. Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose? If so, consider the second question.
  2. Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent? If so, consider the third question.
  3. Did the suspect reasonably believe the complainant consented?

1. Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act?

The condition

Freedom of choice will involve the ability of the complainant to agree to sexual encounters based on what they see as important. Therefore, prosecutors will need to ascertain whether the suspect’s sex and / or gender identity was a matter of importance to the complainant i.e. was it a condition of the complainant’s choice or consent? This may be expressly stated or inferred from all the facts.

For instance, a female complainant may choose to have sexual relations with only one of the following persons, or a combination of any of them (this list is not exhaustive):

  • A person whose sex is male and gender identity is male (a non-trans man).
  • A person whose sex is female and gender identity is female (a non-trans woman).
  • A person whose sex is male but lives and identifies as female (a trans woman).
  • A person whose sex is female but lives and identifies as male (a trans man).
  • A person whose sex is female but lives and identifies as male and has had an operation to create male genitalia (a trans man who has had gender reassignment surgery).

Closely connected with the sexual nature of the relevant act

The condition of importance to the complainant needs to be sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving them of freedom to choose.

For instance, depending on the circumstances:

  • If the complainant chose to have sexual relations with a person whose sex is male and gender identity is male i.e. a non-trans male, it is likely that this condition is sufficiently closely connected with the sexual nature of the relevant act.
  • If the complainant asserts that they were prepared to have sexual relations with a trans person but only if they possessed a GRC, it is doubtful that such a condition is sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose, as it more likely relates to the broad circumstances surrounding it.

2. Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent?

Prosecutors should look for evidence relating to the complainant’s freedom of choice, and whether this was undermined.

Evidence that the suspect failed to disclose their sex and / or gender identity may be sufficient, depending on the circumstances of the case. But other evidence may be necessary.

The deception (whether by way of a lie, false assertion or failure to disclose) needs to relate to the condition of the complainant’s choice or consent. For example, if the complainant chose to have sexual relations with a trans man on condition that they had undergone gender reassignment, there may be a relevant deception if the trans man falsely asserts that he has had gender reassignment (or fails to disclose that he has not). Use of a prosthetic device of which the complainant is unaware would be further evidence of deceit of this nature.

There is no onus or responsibility on a complainant to confirm or discover the sex or gender identity of the suspect. What is relevant is the complainant’s actual knowledge or belief (or lack thereof) of the suspect’s sex and / or gender identity at the time of the alleged offending, rather than what the complainant might have discovered if they had made certain enquiries.

Even though there may be no disclosure or a false assertion or denial by the suspect, the complainant may nonetheless become aware of the sex and / or gender identity of the suspect, whether by way of shared experiences, communications, physical appearance and speech, or a combination of such factors.

The following factors may be relevant to these issues of deception and freedom to choose, together with any others identified on the facts of the case. Some factors clearly relate only to trans and non-binary suspects but most can be applied to all suspects:

  • Whether the suspect targeted, manipulated or exploited the complainant, or exerted control or coercion during their relationship. This may result in the complainant being afraid to question or contradict the suspect, too willing to accept false assertions or denials, or fearful of losing love or affection. Where there is evidence of this nature, it is more likely that the suspect has deceived the complainant.
  • The complainant’s particular characteristics and life experiences, and how these may have impacted on their relationship with the suspect and their understanding of the suspect’s gender identity or sex. For instance, a complainant who is young, immature, vulnerable, suffering from learning difficulties or neurological differences including autism, or inexperienced in sexual relationships, may more easily be deceived, especially where there is a disparity in age or maturity between the suspect and the complainant.
  • An express false assertion or lie. This would include, for instance: a false assertion or lie relating to the suspect’s sex or history of transition; or a denial that the suspect is a trans man or a trans woman.
  • Whether the suspect’s gender identity was different to their sex at the time of the alleged offence.
  • Whether there has been gender reassignment treatment.
  • The degree to which the sex or trans or non-binary identity of the suspect is apparent or otherwise.
  • The attitude of the suspect to revealing their sex, including concerns over any potential adverse impacts.
  • Use of a prosthetic device without the complainant being aware. The complainant’s inexperience in sexual relationships may be relevant to whether or not they were aware.
  • The opinion of the complainant towards lesbian / gay / trans people etc (the specific sexual orientation or gender identity that is relevant will depend on the facts of the case) and the suspect’s knowledge of their opinion.
  • The nature and power balance of the relationship.
  • The length of the relationship. In particular, whether the amount and nature of the contact, including communications between the suspect and the complainant, is consistent with the complainant not knowing the suspect’s sex and / or gender identity and being deceived.
  • The nature of and the circumstances in which the sexual act took place.
  • Evidence that the complainant expressed doubts, asked questions, or made assertions relating to the suspect’s sex and / or gender identity, which may indicate that the complainant was aware or suspicious of the suspect’s sex and / or gender identity but nevertheless chose to consent to the sexual act. However, the weight to give such evidence, especially suspicion, would depend on all the circumstances of the case. For instance, the complainant may not wish to question the suspect too closely for fear of being seen as transphobic.
  • Evidence that the complainant was exploring their own sexuality at the time of the alleged offending, if it is consistent with them being aware of the suspect’s sex and / or gender identity.

In addition to the issue of deception, prosecutors should consider whether there are any other factors that may affect the complainant’s capacity and freedom to consent, such as intoxication by alcohol or drugs.

3. Did the suspect reasonably believe that the complainant consented?

If a complainant is deceived and did not consent, the next stage is to consider whether the suspect reasonably believed in consent to sexual activity.

Prosecutors should examine the facts and circumstances of the suspect’s claim and consider what steps the suspect has taken to satisfy themselves that the complainant was aware of their gender identity and / or sex and that they consented to the sexual act.

When addressing this question, the following factors should be considered, together with any others relevant to the facts of the case:

  • Many of the factors listed above at stage 2 may be relevant. For instance, even though the suspect fails to disclose their sex and / or gender identity they may reasonably believe the complainant consented due to: the degree to which the sex, trans or non-binary identity of the suspect is apparent; the opinion of the complainant towards lesbian / gay / trans people etc (depending on which is relevant to the case) and the suspect’s knowledge of their opinion; the length and nature of the relationship or their communications; the nature of and the circumstances in which the sexual act took place; evidence that the complainant expressed doubts, asked questions, or made assertions relating to the suspect’s sex and / or gender identity; evidence that the complainant was exploring their own sexuality.
  • Where there is evidence of coercion, manipulation, or exploitation of the complainant, it is less likely that the suspect held a reasonable belief.
  • Where there has been a deliberate deception by the suspect, it might be evidence that they know the matter is of importance to the complainant and a condition of consent. In these circumstances, it is less likely that the suspect held a reasonable belief.
  • The suspect may admit that the complainant was unaware of their sex and / or gender identity but claim that they believed it was not a matter of importance to the complainant i.e. a condition of the complainant’s choice or consent. Whether the suspect has a reasonable belief that the complainant consented in these circumstances will depend on all the evidence.
  • There may be circumstances where the suspect deceives the complainant initially but, because of the long passage of time between the initial deception and the sexual activity during which, for instance, the suspect and complainant meet and interact on numerous occasions, the suspect reasonably believes that the deception no longer operates on the complainant. Such circumstances may also be relevant where several sexual offences are alleged over a period of time.

Public Interest considerations

It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.

When considering the public interest stage of the Full Code Test, prosecutors must consider the questions set out at paragraph 4.14 of The Code for Crown Prosecutors (the Code).

Some considerations which may be relevant include:

  • Seriousness: Sexual offending is by its nature serious. The prosecutor will assess seriousness on the specific facts of the case.
  • Culpability: This will require an assessment of the suspect’s culpable acts and omissions and may consider whether the conduct was planned or involved exploitation, manipulation or grooming.
  • Circumstances of and harm to the victim: This will consider relevant matters such as whether there was an abuse of trust and the relationship in general between suspect and victim.
  • Suspect’s age and maturity: Prosecutors should consider the CPS guidance Children as Suspects and Defendants and chapter 13 (Sexual Offences and Youths) of the CPS Rape and Sexual Offences legal guidance.

Chapter 11: The Indictment and Trial

Key principles

Prosecutors are reminded of paragraph 6.1 of the Code for Crown Prosecutors, on the selection of charges.

Counts on the indictment must:

  • Reflect the seriousness and extent of the offending supported by the evidence;
  • Give the court adequate powers to sentence and impose appropriate post-conviction orders; and,
  • Enable the case to be presented in a clear and simple way.

Selecting the appropriate charges is an integral part of a robust case strategy and the indictment needs to be drafted in a way which articulates the case strategy effectively. This is particularly important where other offending is present, for example charges of coercive and controlling behaviour alongside RASSO charges.

Changes in legislation and the range of offences, which might apply to a specific set of circumstances, make it difficult to identify the most appropriate charges in sexual offences cases. In addition to the 2003 Act which repealed most, but not all, of the previous legislation and introduced new sentencing options there have also been changes to the maximum sentencing powers and changes to sentencing provisions. Lawyers must therefore consider not only which provision was in force at the relevant time but also whether the maximum sentence has changed. Where a count crosses the date of the change in maximum sentence then the lower maximum sentence will apply.

Great care needs to be taken when drafting counts in non recent cases.

Form and content

The form, content and service of the indictment is governed by part 10 of the Criminal Procedure Rules 2025 with further guidance provided by the Criminal Practice Directions and in CPS guidance on Drafting the Indictment.

Rule 10.2 sets out the form of the indictment. Under 10.2(1) the indictment must describe the offence in ordinary language, identify the relevant legislation and sets out in the particulars what is alleged against the defendant. The particulars of the offence must therefore:

  • describe the nature of the assault of which the defendant is accused,
  • specify whether the assault was penetrative and how the penetration occurred
  • specify in counts of rape whether the mouth anus or vagina was penetrated
  • specify the age of the victim, if age is a specific averment required by the legislation

Use of multiple incident counts

Rule 10.2(2) provides that “more than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.”

The Practice Direction gives further guidance on the circumstances when a course of conduct count may be appropriate:

  • Each incident must be of the same offence
  • The victim on each occasion was the same (or there was no identifiable victim)
  • The alleged incident involved a marked degree of repetition in method or location or both
  • The incidents took place over a clearly defined period typically no more than (but not necessarily) a year
  • The same defence applies to every alleged incident

The application was considered in R v A [2015] 2 Cr App R (S) 12 CA which held that the prosecution should contain sufficient counts to enable the judge to sentence appropriately to reflect his criminality and the key features. Further the prosecution should state the minimum number of times the alleged offending took place. Where the judge directs that there must only be at least two instances of the offence then the sentence will have to be passed based on two instances.

Specific incidents of offending should be charged as separate counts where they can be identified from the evidence, for example, by reference to a date or other specific event such as a birthday, holiday or the very first incident.

Where consistency with the evidence permits it, restricting individual counts in relation to child victims to offences between one birthday and the next is tidier and avoids mixing up different ages.

In the case of Harley [2012] 1 Cr App R 91 the Court of Appeal issued the following guidance for framing multiple incident counts:

  • It is important to make clear where it is the case that what is charged is a course of conduct and make clear the period over which it is charged;
  • Where it is possible that there was one incident during the period contained by the course of conduct count, a count alleging that incident should also be included in the indictment;
  • Where specific incidents can be identified, it is appropriate for such a single incident to be indicted and particularised in such terms;
  • Where the period of time over which the course of conduct is said to have occurred is long, it should be addressed by a series of counts covering the period (e.g. on a yearly basis).

Joinder

In accordance with principles deriving from the Indictments Act 1915 “where an indictment charges more than one offence, the court must exercise its power to order separate trials of those offences unless the offences to be tried together:

  1. are founded on the same facts, or
  2. form or are part of a series of offences of the same or a similar character (i.e. the former requirement in the rules for lawful joinder).”

What amounts to a series?

  • For counts to be properly joined on an indictment there needs to be sufficient similarity or nexus between the offences for them to be regarded as a series.
  • Two or more offences can amount to a series.
  • In R v Baird (1993) 97 Cr App R 308 counts of assaults committed 9 years apart were held to form part of a series.
  • In R v Benabbou [2012] EWCA Crim 1256 the refusal to sever an indictment containing offences one year apart was upheld by the Court of Appeal.
  • The greater the time gap the stronger the nexus required to establish a series.
  • In the case of R v T [2008] EWCA Crim 183 it was held that there was not a sufficient nexus between a charge of Perverting the Course of Justice based on allegations of rape in 2005 which had not been charged and a rape allegation which occurred several months late.
  • Amendment at retrial post appeal R v PF [2012] 1 W.L.R 3133 The prosecution was permitted to amend the indictment at retrial following a successful appeal to include offences relating to a third victim. Further evidence had come to light and because the alleged offences were of the same or similar character, the application for joinder was deemed reasonable and proper.

The Brief to the Advocate

It is essential that the brief to the advocate conveys the strategy in the case, including how any relevant misconceptions and assumptions will be overcome and communicated effectively to the jury – for example through opening statements and/or requesting specific Judicial Directions. Supporting material to build a strong case strategy that overcomes misconceptions and assumptions is available in Annex A. The brief needs to contain detailed information covering all relevant issues contained in the Rape Prosecutions Advice/Review Checklist and highlight any key information, which is relevant to any sentencing hearing.

A conference with the trial advocate, the officer in the case, the forensic physician, and any other expert witnesses should be arranged at the earliest possible opportunity. This meeting also provides an opportunity to refine and clarify the case strategy to ensure case strategy is central to how the case is presented at trial.

Wherever possible the instructed advocate should conduct all hearings including defence applications for bail and other interlocutory hearings. This is of particular importance when conducting ground rules hearings and section 28 pre-recorded cross examination. Where they are not available another accredited advocate from the same Chambers (or a CPS rape specialist in the case of an in-house HCA) should conduct the hearing having been briefed by the instructed advocate.

Chambers’ clerks must consult with the CPS about the suitability of alternative counsel whenever a brief is returned. This is particularly important in rape and child abuse cases or where the victim is particularly vulnerable.

Where no such alternative advocate is available, a non-accredited advocate (or non-rape specialist HCA) may be instructed but only with the prior approval of the CPS.

Speaking to Witnesses at Court

All advocates are expected to be aware and comply with the CPS guidance on Speaking to Witnesses at Court.

Chapter 12: The Sexual History of complainants, Section 41 YJCEA 1999

Introduction

Section 41 of the Youth Justice and Criminal Evidence Act 1999 provides protection to complainants in proceedings involving sexual offences by restricting evidence or questions about their previous sexual history by or on behalf of the accused, subject to exceptions and with the leave of the court. These restrictions are intended to achieve the right balance between protection of the complainant and a defendant’s right to a fair trial. It might be useful to refer to chapter 7 Tackling rape misconceptions and assumptions.

The legal framework

There is a general prohibition on the admission of previous sexual history evidence and on questions about previous sexual history unless the court gives leave.

Section 41(1) provides that:

‘‘If at a trial a person is charged with a sexual offence, then, except with the leave 
of the court-

  1. no evidence may be adduced, and 
  2. no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.’’ 

“Sexual offence”

“Sexual offence” includes:

  • any offence under Part 1 Sexual Offences Act 2003
  • offences as outlined in Section 62 YJCEA 1999 or any relevant superseded offence.

“Sexual behaviour”

Section 42(1)(c) of the 1999 Act provides:

‘‘‘sexual behaviour’ means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused"

Sexual behaviour potentially includes:

  • sexual activity with the defendant or another
  • engaging in sexually-charged messaging on Facebook as in R v D [2011] EWCA Crim 2305
  • watching pornography and completion of sexual quizzes on the internet - R v Ben-Rajab and Baccar [2012] 1 Cr App R4, in which the Court of Appeal took the view that the expression is wide enough to embrace the activity of viewing pornography or engaging in sexually-charged messaging over a live internet connection and included answering questions in a sexually explicit quiz;
  • secondary evidence of sexual behaviour (for example, abortion and paternity suits). In R v P(R) [2013] EWCA Crim 2331, a complainant’s visit to an abortion clinic with defendant was deemed inadmissible. The Court of Appeal held that a question about an abortion may amount to a question about a complainant’s previous sexual activity. 

Proceedings to which section 41 applies

The provisions of s.41 apply equally to trials in the Crown Court and magistrates’ courts and in addition to trials applies to committal for sentence, applications to dismiss following a notice of transfer, Newton hearings and the hearing of appeals. 

Procedure and time limits

Procedures and time limits are set out in section 43 of the Youth Justice and Criminal Evidence Act 1999 and Part 22 Criminal Procedure Rules 2025.

It is crucial that prosecutors are fully conversant with these rules. The key rules are highlighted below:

  • Any application must be in writing and must be made as soon as reasonably practicable after becoming aware of the grounds for doing so, and in any event not more than 14 days after the prosecutor discloses material on which the application is based (Rule 22.4(1)) 
  • The application must identify the issue to which the defendant says the complainant’s sexual behaviour is relevant and give particulars of any evidence that the defendant wants to introduce, the questions that the defendant wants to ask and the particular gateway(s) relied upon. The application should also detail the name and date of birth of any witness whose evidence about the complainant’s sexual behaviour the defendant wants to introduce. (Rule 22.4(2))
  • The prosecution have 14 days to respond to the defence application (Rule 22.6).
  • The prosecution cannot consent to an application made to avoid the restriction imposed by section 41. It may be, in some circumstances, that the prosecution might not oppose an application because, for example, the admission of the evidence was necessary to ensure a fair trial. However, whether or not the evidence is admissible is a matter of judgement that can only be exercised by the trial judge.
  • The CrimPR permit the court to vary this timetable, even after the expiry of the time limits.(Rule 22.8)
  • Applications to permit sexual history evidence must be heard in private and in the absence of the complainant. This is provided for by section 43. A failure to comply with this statutory requirement is to rehearse all of the arguments in front of the public gallery. After hearing the application, the judge should state their reasons for either allowing or refusing the application in open court.
  • Rule 22.4 requires any applicant to give particulars of any evidence they want to introduce and any questions they want to ask. It is extremely important that the defence put in writing, either in the written application or at the hearing in private, what questions they propose to put to the complainant. It is only by insisting on this that the court will be able to maintain a degree of control over the questioning if it is permitted and will prevent the defence straying into areas that would be forbidden by section 41 and outside the parameters established by the Judge’s ruling.
  • The rules also require the prosecutor to inform a complainant of the court’s decision as soon as reasonably practicable and explain any arrangements that as a result will be made for them to give evidence. This was already required by the CPS guidance Speaking to Witnesses at Court. The court must allow time for this to happen.
  • Where a victim chooses to have a pre-trial meeting with the CPS and an application has been made to introduce evidence or questions about the victim’s previous sexual history, this should be discussed at the meeting with a CPS prosecutor. 

Four gateways to admissibility

An application by or on behalf of an accused at trial can only succeed if the court is satisfied that one of the four ‘‘gateways’’ applies, namely:

  • 41(3)(a) (evidence or question relates to an issue which is not an issue of consent),
  • 41(3)(b) (relates to consent and the sexual behaviour is alleged to have taken place ‘‘at or about the same time as’’ the event in issue),
  • 41(3)(c) (relates to consent and the sexual behaviour to which the evidence or question relates is so similar to behaviour which, according to the evidence, took place as part of the event or other behaviour by the complainant at about that time that the similarity cannot reasonably be explained as a coincidence), or
  • 41(5) (relates to and rebuts evidence adduced by the prosecution about the complainant’s sexual behaviour); and
  • that a refusal of leave might have the effect of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.

Gateway 1 - Section 41(3)(a) Evidence or question relates to an issue which is not an issue of consent

Section 41(3)(a) applies where the evidence or question relates to a relevant issue in the case and that issue is not an issue of consent. In R v A (no 2) [2002] 1 A.C. 45 Lord Hope referred to evidence which is proffered for specific reasons pointing to guilt or innocence as opposed to impermissible generalisations about consent. He gave four examples of issues falling within “issue other than consent”.

a) the defence of reasonable belief in consent

This is likely to be of limited application since in accordance with the Sexual Offences Act 2003 a belief in consent must be reasonable to afford a defence. There will be very few cases where this example will be of practical application as issues of belief in consent are often inextricably bound up with the issue of consent. Since the enactment of Section 41 there have been a number of cases where the Court of Appeal have upheld the refusal to grant leave to admit sexual history evidence on the basis that such evidence did not go to the issue of a reasonable and honest belief in consent and was intended, instead, to suggest that because s/he had had sexual intercourse with someone else, she was likely to have had consensual sex with the accused.

In Harrison [2006] EWCA Crim 1543 the trial judge’s refusal to permit questioning about the complainant having sex with a third party three hours prior to the rape was upheld and was properly prohibited by section 41. 

In Winter [2008] EWCA Crim 3 a complainant telling a suspect she was having a relationship with another man did not provide the suspect with a reasonable basis for belief that she was consenting to sex with him.

b) Complainant had motive to fabricate evidence or was biased against the accused

Whilst this was suggested by Lord Hope as a possible example of this gateway, it is extremely limited in scope as the evidence must relate to a “relevant issue in the case” and very often a motive to fabricate will not be a relevant issue. It is important to scrutinise with care the circumstances of the allegation and the reasons it is being suggested why there is an alleged motive to lie. There may be some cases where there will have to be a reference to the sexual behaviour of the complainant when exploring a motive to fabricate to ensure a fair trial, but these types of cases should be approached with care. An example of such a case is R v F [2005] 2 Cr App R 13. 

c) There is alternative explanation for the physical conditions on which the Crown relies to establish that intercourse took place

Evidence of a previous sexual liaison with a third party might explain why the complainant contracted a sexual transmitted infection which the prosecution rely upon as evidence of penetration by the defendant. Similarly evidence of a complainant’s pregnancy might bring into play previous sexual activity as an alternative explanation for infection. 

In R v L [2015] EWCA Crim 741 prosecution relied upon medical evidence which suggested penile penetration had caused damage to the hymen. The defence were able to reference a previous rape of the same complainant when she was overseas. 

d) Detail of the complainant’s account must have come from other sexual activity before or after event which provides explanation for knowledge of that activity 

An issue has arisen in cases where the prosecution argues that the complainant would not be able to describe the sexual activity if they had not experienced it with the suspect. The scenario is likely to be unusual since even young children may gain knowledge of sexual practices from a variety of sources e.g. playground or sex education. See case of R v MF [2005] EWCA Crim 3376.

Gateway 2 - Section 41(3)(b) Consent and Contemporaneity

This subsection applies if the evidence or question relates to a relevant issue in the case and that issue is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused.

There are no specific time limits around what constitutes ‘about the same time’ as any time limitation risks being arbitrary. Closeness in time will be a factor when considering relevance but the parties may have an intimate relationship and see each other only occasionally.

The tendency has been for the courts to adopt a restrictive approach, examples include: 

In R v A [2001] EWCA Crim 4 Rose LJ found it impossible to construe words ‘at or about the same time’ as applying to events months, weeks or even days prior to the events said to give rise to the rape. 

In R v A (no. 2) [2002] 1 A.C 45 Lord Slynn favoured a narrow interpretation which would not allow evidence of sexual behaviour to be adduced other than in cases where the acts relied on were ‘really contemporaneous’. 

It should be noted that even if the behaviour is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused it does not necessarily follow that it relates to an issue of consent or that the judge will be satisfied for purposes of section 41(3)(b) that a refusal might leave unsafe a decision of the jury. 

Gateway 3 - Section 41(3)(c) Consent and similarity

This subsection relates to consent and the sexual behaviour of the complainant to which the question or evidence relates is alleged to have been, in any respect, so similar

  1. to any sexual behaviour of the complainant which (according to the evidence adduced to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused; or
  2. to any other sexual behaviour of the complainant which (according to the evidence to be adduced) took place at or about the same time as the event the subject matter of the charge. 

This gateway is opened when the behaviour of the complainant at the time of, or as part of, the incident complained of is so similar to other behaviour that the similarity cannot reasonably be explained as a coincidence.

The government debates preceding the enactment of the provision made clear that this exception was not designed to cover “evidence of a general approach towards consensual sex such as a predilection for one night stands, or for having consensual sex on a first date. Still less does it include the fact that the complainant has previously consented to sex with people of the same race as the defendant, or has previously had sex in a car, for example, before alleging that she was raped in a car. Such behaviour could reasonably be explained as coincidental, as it falls within the usual range of behaviour that people display” (Hansard 23 March 1999, col 1218 per Government Minister Lord Williams).

Unlike the contemporaneity gateway, there is no need for any temporal proximity. R v T [2004] EWCA Crim 1220 is an illustration of this where the similar act complained of took place three weeks prior to the alleged rape.

The following cases serve to illustrate the approach of the Courts to this gateway.

  • ​R v White​ [2004] EWCA Crim 946

    The allegation was that the complainant had met the appellant and had gone back to her flat where she had been raped. The appellant’s case was that this was an act of consensual intercourse. He had later awoken to find her trying to steal his wallet. They had had a fight and he had left.

    At trial the defence had made an application to cross examine the complainant about the fact that she had been a prostitute for 19 years. This was refused by the trial judge.

    The Court of Appeal upheld the conviction and held that the fact that she was a prostitute was irrelevant to the issue of consent. The defence case here was not that the appellant was a client of the complainant when working as a prostitute and so the fact that she had numerous previous convictions for prostitution could not be said to be sufficiently similar to the circumstances of the charge so as to bring them within section 41(3)(c).
     
  • R v Harris [2009] EWCA Crim 434

    The complainant was making her way home after a night out drinking. She was heavily intoxicated and invited back to her flat by a man she had met on her journey home. This was the appellant. The complainant and the appellant also invited a Polish man, whom they had met by chance, back to the flat. It was the complainant’s account that she had been raped by the appellant who had also assaulted the Polish man. The issue at trial was consent.

    The prosecution had disclosed the complainant’s medical records in which it was recorded that the complainant had described life choices involving risky sexual behaviour. The appellant sought leave to cross examine the complainant about the details of this behaviour and her attitude to risk arguing that the risk taking in the records was similar to the risky sexual encounter when the appellant and the complainant had met.

    The Court of Appeal upheld the trial judge’s refusal to permit this cross-examination finding that there was insufficient similarity between what was described in the records and what was alleged to have happened at the hands of the appellant. The Court also made the point that cross examination would have brought into play evidence about the complainant’s sexual behaviour generally and was not directed to the similarity of the conduct on the relevant occasions. Indeed, in this case, there was no dispute as to the circumstances in which the complainant found herself to be in the company of the appellant; the dispute was what had happened once they were together at the flat and the fact that she had engaged in risky casual sex previously did not mean that she had done so, consensually, on this occasion.
     
  • R v Evans [2016] EWCA Crim 452

    The complainant could recall nothing of the events of the evening. The appellant admitted that sexual intercourse had taken place but said it had been consensual. Alternatively, he had a reasonable belief in consent. He described the complainant as engaging in particular sexual activity and using particular words when doing so. He was convicted at trial.

    In due course, this conviction was referred to the Court of Appeal by the Criminal Cases Review Commission where leave was sought to admit fresh evidence. This further evidence had come to light after a campaign by the appellant’s family and was provided by two men, both of whom said they had had sexual intercourse with the complainant, one before the incident the subject of the charge and one afterwards. Both of them described the complainant as behaving, during the sexual encounter, in a similar way to the manner described by the appellant Evans.

    The Court admitted the fresh evidence and allowed the appeal. It was made clear that the behaviour admitted through this gateway was not confined to unusual or bizarre behaviour but it had to be sufficiently similar such that it could not reasonably be explained as a coincidence.

    The Court allowed this appeal with some hesitation but found that this was a rare case. Alone, if the jury rejected the appellant’s account of the complainant’s behaviour on the night in question, he was left without a defence. The fact that two others had described similar behaviour with them was capable of supporting his account. This was admissible and relevant evidence and in such a case, the Court was clear that the requirements of section 41 had to give way to the requirements of a fair trial.

    What this case does make clear however is that such cases are rare and the circumstances and issues of each case must be carefully examined. 

Previous Sexual Activity between the Accused and the Complainant

The prohibition in section 41 extends to previous sexual contact between the complainant and the accused. This was an issue considered by the House of Lords in R v A (No 2) [2001] UKHL 25 when the House stated that on a strict statutory interpretation, section 41 was incompatible with the right to a fair trial because it was capable of rendering inadmissible evidence which might be relevant to the defence of consent on a charge of rape and they cited evidence of a previous consensual sexual relationship between the parties.

The Court held that the niceties of the language of section 41(3)(c) – in particular the matter of coincidence - should be subordinated to broader considerations of relevance judged by logical and common sense criteria of time and circumstances and it is possible to read Section 41(3)( c) as subject to an implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 ECHR should not be treated as inadmissible whilst due regard must always be had to the importance of seeking to protect the complainant from indignity and humiliating questions.

It is not a given that in all cases where there has been a relationship between the parties that the prohibition in Section 41 will not apply. Whether evidence of any previous sexual encounter between the parties should be admitted will be case specific and care must be taken to ensure that the restrictions imposed by Section 41 are not being circumvented. In some cases, previous sexual encounters might be very relevant; in other cases, such an encounter might be completely irrelevant. The Court’s example was an isolated episode distant in time and circumstances. The case of R v S [2010] EWCA Crim 1579 is an illustration of a case where the trial judge did not permit cross examination about a previous act of sexual intercourse said to have taken place a few days prior to an incident of a violent rape committed upon a wife by her husband.

Gateway 4 - Section 41(5) The Rebuttal Gateway

This gateway applies if the evidence or question:

  1. Relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
  2. In the opinion of the court would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused 
    It is important to remember that Section 41(4) does not apply to evidence to be adduced under this sub-section but that the questioning must go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained.

It is also important to consider carefully whether the evidence to be rebutted is evidence adduced by the prosecution. In R v Hamadi [2007] EWCA Crim 3048 the Court of Appeal upheld the trial judge’s refusal to permit cross examination about the complainant’s experience with a third party when the evidence to be rebutted was adduced in cross examination by defence counsel. 

Restrictions on admissibility

Restrictions that apply to all gateways

  1. ​​The Court’s duty under Section 41(2)

Even where one of the gateways is met the court must be satisfied (in accordance with section 41(2)(b)) that a refusal of leave might have the effect of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.

Using the words of Lord Hope in R v A, it filters out cases where the evidence is not truly probative. The operation of this section can be seen in R v DB [2012] EWCA Crim 1235 where, in a case where a daughter alleged that she had been raped repeatedly by her father and, as a result, had become pregnant twice, resulting in terminations, evidence that she had had a sexual relationship at the same time with her boyfriend was admitted but not evidence that male DNA was found on her endocervical swabs belonging to another male during a medical examination conducted a few days before her ABE interview. This was sexual activity that had occurred outside the relevant time period and therefore did not assist as to any issue in the case. The only purpose would be to establish that the complainant was not telling the truth when she said in her ABE interview that she had not had sexual intercourse with anyone other than her father. There was already evidence that she had lied about that issue concerning her boyfriend. The evidence about the other man therefore was collateral to any issue in the case; it was therefore prohibited by Section 41(4).

  1. Evidence or question must relate to a specific instance or instances of alleged sexual behaviour (section 41(6))

This means that the section expressly prohibits evidence about general reputation or, for example, about the fact that the complainant was or had been a prostitute.

Restrictions relating to section 41(3) gateway

  • The section 41(4) prohibition

    In accordance with section 41(4) where the gateway is section 41(3)(a)(b) or (c) no evidence or question shall be regarded as relating to a relevant issue in the case if the purpose (or main purpose) is to impugn the credibility of the complainant as a witness.

    The case of R v V [2016] EWCA Crim 1434 provides a useful illustration of the Court’s approach to the application of section 41(4). In this case the Court accepted that section 41(4) could not prevent all evidence which had a bearing on whether the complainant was credible in the sense that she was telling the truth about the events at trial: if that were the case, the subsection “would exclude almost all defence evidence or cross-examination, as the purpose of that is almost always to suggest that the complainant is wrong and the defendant is not guilty”. What is instead required is careful scrutiny of the stated reason or rationale for the proposed line of questioning. Does the proposed questioning merely seek to perpetuate the second of the twin myths identified by Lord Steyn in R v A (that “unchaste women” are less worthy of belief) or does it instead direct towards evidence on matters that have a “direct bearing” on whether or not the allegation before the jury is true? In other words, the term “credibility”, when used in section 41(4), does not act to exclude evidence that undermines a complainant’s account of the allegation at trial, but to prevent the introduction of evidence that generally suggests she is the type of person whose word should not be believed.

    On the facts of R v V, the Court concluded that the reason for the questioning was to provide an alternative explanation for the detail of the complainant’s evidence about the alleged abuse and for her distress and, specifically, to provide support for the suggestion that she may have been confused and mistaken such that she transposed abuse suffered at the hands of another to the appellant. The proposed questioning was therefore not directed at impugning the credibility of the complainant and accordingly was not prohibited by section 41(4).

    The case of R v BJK [2024] EWCA Crim 721 also contains helpful guidance on this point where the accused wishes to argue that the complainant has wrongly transposed abuse committed by another person and mistakenly attributed it to the accused and so section 41 is engaged.

    The Court stated that in this case, leave may only be granted if:

    i) Section 41(3) and/or (5) applies; and
    ii) The evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant; and
    iii) A refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.

    If these pre-requisites are satisfied, the judge is not bound to admit the evidence but has a discretion as to whether to do so.

    Whether evidence relates to an issue in the case for the purposes of section 41(3) will involve a fact-sensitive analysis taking into account all relevant matters. However, section 41(4) must be borne in mind at all times and requires the court to determine whether it is reasonable to assume that the purpose or main purpose for which the evidence would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. If it is, leave cannot be given pursuant to section 41(3). If impugning the credibility of the complainant is a subsidiary (but not the main or sole) purpose, section 41(4) does not of itself bar the giving of leave, though the fact that it is a subsidiary purpose may still be relevant to the exercise of the Court's discretion if matters get that far: see R v F (No 2) [2005] EWCA Crim 293, [2005] 1 WLR 2848 at [27]. As was said in R v T (2021) at [48]:

    "The courts … have to be wary about the potential for assertions to the effect that the challenge is as to malicious motivation to fabricate being, in truth, an obfuscation of the real or main purpose: that is to say, to undermine a complainant's credibility." 

False allegations and previous allegations of sexual offending 

This section should be read alongside Chapter 4: Reasonable Lines of Enquiry in RASSO cases.

Whilst section 41 of the Youth Justice and Criminal Evidence Act 1999 is not automatically engaged by questions relating to a complainant’s previous false allegations (the provisions do not apply where the focus of questioning is purely on the falsity of a past statement rather than on the complainant’s previous sexual behaviour), it is important that prosecutors note that the provisions will regularly be engaged be defence questioning in this area. With this in mind it is important that, before any questions are asked about alleged previous false complaints, the defence seek a ruling from the trial judge that section 41 does not apply.

In such a case, the defence must have a proper evidential basis for asserting that the previous statement was both made and was untrue. Whether there is a proper evidential basis is a fact sensitive exercise and a matter of judgment rather than discretion. It is not necessary for the defence to prove that the complaint was false. The importance of a high-quality Disclosure Management Document informed by a robust case strategy is critical here in ensuring that defence applications can be robustly challenged. 

In the case of R v All-Hilly [2014] 2 Cr App R 33 the Court of Appeal ruled that the fact the complainant had made but did not pursue previous allegations did not provide a sound basis for suggesting they were false.

In most cases where the defence want to ask a complainant about an alleged false allegation, in addition to seeking a ruling that section 41 does not apply, the defence will almost certainly be required to make a ‘bad character’ application under section 100 of the Criminal Justice Act 2003. A helpful Court of Appeal case on this point is R v BJK (2024) (see above), which reiterated that where s.41 is deemed not to apply, the question then would be whether the evidence or questions were relevant to an issue in the case and/or qualified to be admitted as bad character evidence, subject always to the Court's discretion to exclude the evidence if it was too speculative or otherwise pursuant to s.78 of PACE.

The Court in R v T; R v H [2001] EWCA Crim 1877 made clear that the burden of justifying the adducing of the evidence in such a case is significant, saying at [41]:

"The defence, wishing to put questions about alleged previous false complaints, will need to seek a ruling from the judge that section 41 does not exclude them. It would be professionally improper for those representing the defendant to put such questions in order to elicit evidence about the complainant's past sexual behaviour as such under the guise of previous false complaints. But in any case, the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements were not met, then the questions would not be about lies but would be "about the sexual behaviour of the complainant" within the meaning of section 41(1)."

Per R v All-Hilly (above), the mere fact that other complaints were not pursued to a prosecution is insufficient to demonstrate falsity. On the other hand, it is not necessary that the evidence demonstrates conclusively that the previous complaint is false, or even that it shows "a strong factual foundation for concluding that the previous complaint was false. But there must be some material from which it could properly be concluded that the complaint was false." R v AM [2009] EWCA Crim 618 at [22]-[26], R v E [2009] EWCA Crim 2668. In other words, the defence must be able to point to material that is capable of supporting the inference of falsity but need not inevitably support it What is required is a fact-specific analysis of the circumstances of the case in hand R v Davison [2015] EWCA Crim 1907 at [18].

The Court in R v BJK stated that it is material to remember the high threshold ("important explanatory evidence" or "substantial probative value in relation to a matter in issue in the proceedings") that must be satisfied for non-defendant bad character evidence to be admitted under section 100(1) Criminal Justice Act 2003. Prosecutors should also have regard to R v Hurley [2025] EWCA Crim 642. The defendant submitted an appeal on the basis of fresh evidence which the defence said raised concerns about the complainant’s credibility and reliability, (previous allegations of rape and domestic violence at the hands of her husband and others). The Court of Appeal found that there was no evidence to suggest that the allegations were false and declined to admit them under either s.41 YJCEA 1999 or s100 CJA 2003. The Court rejected the argument that multiple allegations imply falsity, emphasising the complainant’s troubled life and vulnerability to sexual predators. This further clarified the application of sections 41 and 100 to the issue of previous allegations and whether or not they could be deemed to be false, as well as emphasising the importance of a proper evidential basis for such allegations to be admitted.

Useful link: Refer to chapter 7 Tackling Rape misconceptions and assumptions.

In addition to the legal framework for admissibility, there are standards outlined in the Bar Standard Handbook. This includes the following obligations for advocates:

  1. you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;
  2. you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;
  3. you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:
    1. you have reasonable grounds for the allegation; and
    2. the allegation is relevant to your client’s case or the credibility of a witness; and
    3. where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary. 

The role of the reviewing prosecutor

Prosecutors play an important role in ensuring that material relating to a complainant’s previous sexual history which is not relevant to the issues in the case is not admitted during the course of a trial. A strong case strategy and robust disclosure strategy captured in a Disclosure Management Document will support prosecutors in ensuring issues not relevant to the case are not admitted. Prosecutors should adopt a structured approach, in which true relevance of the material in question to an issue in the case is properly and carefully analysed.

Checking the witness statement/ABE interview and considering edits

When preparing a case prosecutors should always give consideration to the contents of the witness’s statement or ABE interview. Very often, these statements include information about sexual history. Prosecutors should consider whether this is evidence that the prosecution would want to adduce (the restriction does not apply to evidence adduced by the prosecution) or whether this evidence should be edited. If a decision is made not to adduce this evidence then it should be edited from the statements and the DVDs and the defence should be advised in writing or at the pre-trial plea hearing. If they object, then they can be advised that they will need to make an application under section 41. A strong case strategy will support early and robust engagement with the defence on this sensitive matter.

Checking the defendant interview and considering edits

The same consideration applies to comments made by a defendant in their police interview under caution. These interviews sometimes contain comments by defendants which seek to introduce material which would be in contravention of the section 41 restriction. Prosecutors must consider the need to edit these interviews and keep the defence informed of their intentions.

Steps to follow when a section 41 application is received

When a section 41 application is received from the defence the reviewing lawyer for the case must do the following:

  • Carefully review the application and reach a preliminary position with regards to how the Crown will respond and record that position;
  • Immediately request written advice from counsel on the application;
  • Where an application is made in advance of the trial date, discuss the application and proposed response with counsel at a case conference;
  • Approve the response to the section 41 application prior to service and record action taken.

Steps to follow when a section 41 application is agreed by the court

Where an application to adduce sexual behaviour evidence has been agreed by the court in advance of the trial date the reviewing lawyer must:

  • Ensure the complainant is informed of the court’s decision as soon as is reasonably practicable;
  • Consider whether a special measures application or a revised special measures application needs to be made as a result of the court’s decision. In accordance with Part 22.7 of the CrimPR 2025 the prosecution has 10 business days following the granting of a Section 41 application to apply for a new special measures direction.

The role of the prosecution advocate at court

The Plea and Trial Preparation Hearing (PTPH)

At the PTPH, prosecution advocates should ensure that the defence endorse the PTPH form as to whether or not they intend to make a Section 41 application. In appropriate cases, the court should be asked to set a timetable. The importance of proper notice cannot be overemphasised. Late applications often have the effect of ambushing witnesses and can prevent the prosecution from being able to deal appropriately with evidence that the defence wish to adduce.

Scrutinising the basis for late applications

There will be cases where there is a genuine reason for the late service of a section 41 application. It may, for example, have been prompted by a matter that has only recently come to the attention of either the prosecution or the defence. Prosecuting advocates must enquire as to the reasons for a late application and to ask the Court to scrutinise the stated reasons.

Keeping the victim informed of developments and revisiting special measures where appropriate

Where the court has allowed the introduction of evidence or cross-examination about the complainant’s sexual behaviour the prosecutor must inform the complainant as soon as reasonably practicable (Part 22.3(1)(a) CrimPR 2025).

Where appropriate the prosecuting advocate should apply for special measures or a revised special measures direction following a decision to allow a Section 41 application. Where special measures have been agreed by the court as a result of the ruling the advocate must inform the complainant as soon as is reasonably practicable (Part 22.3(1)(b) CrimPR 2025. 
In accordance with Part 22.3(2) the court must allow the prosecuting advocate sufficient time to comply with the requirements in Part 22.3(1) above.

Challenging defence cross-examination on inadmissible matters at trial

Prosecuting advocates should not rely solely on the judge to intervene to stop questioning or evidence being adduced in contravention of the restrictions in section 41. It is the responsibility of the prosecuting advocate to challenge inappropriate cross examination or irrelevant evidence and advocates should be proactive when there is a breach of section 41.

The court should be asked to sit in private and if the defence are seeking to establish that a gateway applies, then a proper application can be made to the court.

In some cases, consideration may have to be given, where irrelevant and prejudicial evidence has been adduced without leave, to asking the court to discharge the jury. This is a drastic step and the needs of the complainant will have to be balanced against the need to secure a fair trial for both the prosecution and the defence. This illustrates the importance of understanding the section 41 provisions and ensuring that they are complied with. 

Chapter 13: Sentencing

Key points

The Sentencing Council has published a Definitive Guideline on the Sexual Offences Act 2003, which applies to all offenders aged 18 years and over who are sentenced on or after April 1 2014.

The Guideline is based on the guideline judgment on Rape, Millberry and Others (2003) 2 Cr App R (S) 31 and provides a statement of the applicable principles of sentencing for offences committed pursuant to the Sexual Offences Act 2003 The guideline specifies sentencing ranges for different offences, different categories to reflect varying levels of seriousness and starting points from which the sentence can be calculated. The starting points are based on adult offenders. 

The Guideline states that offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate.

Advocates should address the sentencing judge with reference to the Sentencing Guideline in all cases, which fall to be sentenced, identifying the appropriate category of offence by the culpability and harm factors present in the case.

Common harm factors

Severe psychological or physical harm

This harm factor appears in the guidelines relating to all the non-consensual offences in the 2003 Act (ss.1–8). In Chall [2019] EWCA Crim 865 the Court confirmed that expert evidence is not an essential precondition of a finding that a victim has suffered severe psychological harm. It observed that a judge may assess that such harm has been suffered on the basis of evidence from the victim, including evidence contained in a Victim Personal Statement (“VPS”), and may rely on their observation of the victim whilst giving evidence. Ultimately, it will be a question of fact in each case whether the threshold of severity is met. 

Prolonged detention/sustained incident

This harm factor appears in the guidelines relating to all the non-consensual offences in the 2003 Act (ss.1–8). A longer period of offending against a victim, or repeated offending over a shorter period, is a more serious creator of harm than a single and short incident. 

In R v BEQ [2024] EWCA Crim 1446 it was held appropriate to treat as a sustained incident or course of behaviour a series of at least four offences committed by the offender against the victim over a period of five years.

In R v KC [2019] EWCA Crim 1632 it was held that three offences of assault by penetration of a child under 13 committed against the victim over a period of two years did not constitute a “sustained incident”. The Court said that the distinction between a single “sustained incident” and a series of separate incidents (none of which is “sustained”) is important.

In R v ARD [2017] EWCA Crim 1882 the appellant had pleaded guilty to one offence under s.6 which involved a sequence of sexual acts committed one after another. 

The Court of Appeal held that this was “not a momentary sexual touching but a sustained sexual assault” since, while the incident took place on a single occasion, the appellant had committed a number of sexual acts one after the other on that occasion.

Forced/uninvited entry into victim’s home

This harm factor appears in the guidelines relating to all the non-consensual offences in the 2003 Act (ss.1–8). It covers not only a stranger who breaks into the victim’s home but also an ex-partner who enters the victim’s home uninvited. Where the ex-partner has been invited, this factor would not apply. However, at step two the location of the offence is an aggravating factor, so if in such a case the sentencer judges that the harm to the victim is increased by virtue of the fact it occurred in their home, this can be taken into account at that stage.

Victim/child is particularly vulnerable due to personal circumstances and Child is particularly vulnerable due to extreme youth and/or personal circumstances

A harm factor relating to the particular vulnerability of the victim due to their personal circumstances features in the guidelines relating to the non-consensual offences in ss.1–8 of the 2003 Act and the offence in s.15 of meeting a child following sexual grooming.

The factor is broad enough to include those who are particularly vulnerable because of a background of emotional or physical abuse or vulnerability through age and/or disability. However, there is no requirement that the vulnerability must relate to enduring characteristics, such as age or permanent physical disability; rather, it refers to the circumstances prevailing at the time of the offence, which may be temporary. For instance, a female who is alone at night and intoxicated may be particularly vulnerable – though this will not necessarily be the case as everything will depend upon the circumstances

Common culpability factors

Abuse of trust

This factor appears in most of sexual offences guidelines, usually as a culpability factor but in some cases as a harm factor. The Court of Appeal has repeatedly stated that “abuse of trust” in this context contemplates abuse of a relationship involving an inequality of power, often (but not always) involving a duty of care such as is owed in relationships between, for example, a teacher and a student or a parent and a child.

Grooming behaviour used against victim

This culpability factor appears in a wide range of sexual offences guidelines and notably in those relating to the under-13 and child sex offences. There is no legal definition of the term “grooming” and the courts have cautioned against creating one. The Court of Appeal has said that the term is used in the context of sexual offences to mean trying to obtain the victim’s confidence and to break down their inhibitions, and its essence involves manipulation and control, with the offender treating the victim as an object for their own self-gratification. It is clear that the acts that constitute grooming need not be sexual in themselves. For example, a child may be groomed online by the pretence of friendship and the use of flattery to make them feel special or by gifts of jewellery and money.

Significant degree of planning

This factor in included in a wide range of sexual offences guidelines. In determining in a particular case whether there was a “significant degree of planning” it is vital to have regard to the context of the offending. In Teklu [2017] EWCA Crim 1477 it was held that the Recorder had been entitled to find a significant degree of planning in a case where there had been no element of sophistication in the appellant’s conduct. The victim, on her way home after a night out, came across the appellant sitting on a wall in the city centre. They talked and the victim offered the appellant a cigarette. He accepted and then pursued the victim, going a considerable distance out of his way, before sexually assaulting her in a quieter area. The Recorder took the view that the appellant was deliberately sitting on a wall at 10.45pm planning to chat up women on their way home. The Court of Appeal held that “significant” is not an absolute concept. In the context of sexual assault, an offence that can be committed without “implements” or tools or any sophisticated planning, the Court considered that lying in wait in a position designed to prey on lone young women on their way home from a night out did involve a significant degree of planning.

Use of alcohol/drugs on victim to facilitate the offence

In addition to the use of alcohol to incapacitate the victim, offenders may use access to alcohol and/or drugs as part of the grooming process in order to gain the trust or friendship of a victim, particularly a child or young person, and so enable themselves to carry out the abuse. There is accordingly an overlap between this culpability factor and “grooming”.

There is, on the face of it, a difference between using alcohol/drugs on the victim to facilitate an offence, and opportunistically taking advantage of a victim whilst they are under the influence of alcohol/drugs. In some cases those circumstances might result in a finding of raised harm because the victim was particularly vulnerable due to their personal circumstances, or to a finding of raised culpability due to an abuse of trust. In any event, taking advantage of a victim whilst they are intoxicated is highly likely to be treated as an aggravating factor for sentencing purposes.

Aggravating and mitigating factors

In contrast to the factors that feature in harm and culpability, the aggravating and mitigating factors mentioned in the sexual offences guidelines are a non-exhaustive list of additional factual elements forming the context of the offence and factors relating to the offender.

Specific targeting of a particularly vulnerable victim

There is an overlap between this factor and the harm factor “Victim/child is particularly vulnerable due to personal circumstances”. 

An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).

Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.

Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.

Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).

  • Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
  • The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.

Sentencing Non Recent cases of Sexual Offending

Since the leading case of R v H and others [2012] 2 CAR(S) 21, the principles of which are now included here, a convicted defendant must be sentenced according to current regimes and guidelines. The only matter of importance from the time the offence was committed is that the sentence must restricted to the maximum as it then was.

The approach to be adopted was clarified in the case of R v Forbes and others [2016] EWCA Crim 1388. This is a decision of the Special Court (featuring nine conjoined appeals) which dealt with a number of issues in relation to sentencing for non-recent sexual offences.

This case does not fundamentally alter the principles of R v H but:

  • The Court emphasised that the phrase “have regard to” in paragraph 3 of the guidance on historic offences was intended to make it clear that the judge should not simply apply the relevant guideline applicable at the date of sentence, subject to any lower statutory maximum sentence applicable at the date the offence was committed, but use the guideline in a measured and reflective manner to arrive at the appropriate sentence. The court should not simply apply in a mechanistic way guidelines premised on much higher maximum sentences [see: paragraphs 6 to 11].
  • In some cases, the court may have to look at more than one guideline for an equivalent offence to arrive at the correct sentence [see: paragraph 3].

Youth Sentencing

The Sentencing Council has published the Children and Young Person Overarching Principles and the offence-specific definitive guidelines for sexual offences. The guidelines apply to all children and young people who are sentenced on or after 1 June 2017, regardless of the date of the offence.

The guidelines look with far greater detail at the age, background and circumstances of each child or young person as well as their welfare. The approach should be focused on the child or young person as opposed to offence focused.

From 1 April 2014 the courts must apply the specific guidelines when sentencing offenders under the age of 18 years for any of the following offences: 

  • Sexual activity with a child (s.9, SOA 2003)
  • Causing or inciting a child to engage in sexual activity (s.10, SOA 2003)
  • Engaging in sexual activity in the presence of a child (s.11, SOA 2003)
  • Causing a child to watch a sexual act (s.12, SOA 2003)
  • Sexual activity with a child family member (s.25, SOA 2003)
  • Inciting a child family member to engage in sexual activity (s.26, SOA 2003)

Each of these offences is subject to a maximum sentence of 5 years.

For all other offences covered by the Sentencing Council’s Sexual Offences Guidelines the courts must have regard to the Guideline on Sentencing Children and Young People.

In determining the sentence, the key elements for consideration are:

  • the principal aim of the youth justice system (to prevent re-offending by children and young people);
  • the welfare of the child or young person;
  • the age of the child or young person (chronological, developmental and emotional);
  • the seriousness of the offence;
  • the likelihood of further offences being committed; and
  • the extent of harm likely to result from those further offences.

The approach to sentence will be individualistic. Proper regard should be had to the mental health and capability of the young person, and to any learning disability, learning difficulty, speech and language difficulty or other disorder, which is likely to affect the likelihood of these purposes being achieved. (SGC Guideline Section 4).

Sentencing non-recent offences committed whilst the offender was a youth

R v Ahmed and others [2023] EWCA Crim 281 was a decision by an enlarged Court of Appeal, considering five appeals on how sentence should be approached when sentencing an adult for an offence committed when they were a child. Each of the cases involved sexual offending. The Court held:

  • The Sentencing Children and Young People guidelines (which came into effect on 1 June 2017) must be followed unless it would be contrary to the interests of justice to do so.
  • The court must consider the maximum sentence, which was available at the time, or shortly after the time, of the offending. Depending on the nature of the offending and the offender's age, that maximum could be:
    • the same as would have applied to an adult offender;
    • limited by statutory provisions setting a different maximum for an offender who had not attained a particular age; or
    • limited by statutory provisions restricting the availability of different types or lengths of custodial sentence according to the offender's age.
  • The starting point should be the sentence likely to have been imposed if the offender had been sentenced shortly after the offence was committed
  • If, the child offender could not in law have been sentenced at the time of the offending to any form of custody then a custodial sentence cannot later be imposed when sentencing as an adult. 
  • Where some form of custody was available if the offender had been sentenced at the time of the offending, then the Court was not necessarily bound by the maximum applicable to the child offender. However, it should only be exceeded where there is good reason to do so. The mere fact that the offender is now an adult is not in itself a good reason
  • The Court in Ahmed clarified the approach taken in R v Forbes and others [2016] EWCA Crim 1388. In Forbes the court distinguished between cases where no custody would have been available and cases where some form of custody would have been available no matter how remote the prospects of a custodial sentence at the time would have been. If for example the offender would have likely received a referral order/non-custodial sentence if sentenced at the time of the offending, then a non-custodial sentence should be the starting point when sentencing as an adult. The Court in Ahmed cautioned against a mechanistic application of this distinction drawn in Forbes. 
  • Although the starting point for any sentence would likely be that which would have been imposed if the offender had been sentenced at the time of the offence, the passage of time might assist with assessing the culpability of the offender. For instance it might suggest that the offending was a one-off incident or it might be able to show that this was a continuing course of conduct. The passage of time might allow a better assessment of the harm imposed by the offending. 

It will be necessary when considering for prosecutors to look at what sentences would have been available for the child offender if sentenced at the time. In order to do this, the prosecutor can reference Legislation.gov.uk and Current Sentencing Practice (currently chapter A8, Non-recent offences, in volume 2) which provides a helpful table showing the historically available sentences for offender aged between 10 and 17 at the date of offending.

Dangerous Offenders

Rape and other specified sexual offences are listed in Part 2 of Schedule 15B Criminal Justice Act 2003 and therefore qualify for consideration of dangerousness when a defendant is sentenced.

An offender is dangerous if: “the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences”.

See also prosecution guidance - Sentencing Dangerous Offenders​

Special Custodial Sentences for Offenders of Particular Concern

As per section 278 Sentencing Act 2020 the court can impose special custodial sentences for offenders of particular concern. For all qualifying offences, the court will impose a further licence period of one year in addition to the appropriate custodial sentence.

The section applies to someone convicted of an offence listed in schedule 18A to the Act, who was

  1. aged 18 or over when the offence was committed, and
  2. is not sentenced to life imprisonment or an extended sentence under section 226A.

The Act applies irrespective of when the offence was committed and applies to offences under section 5 Sexual Offences Act 2003 (rape of a child under 13) or section 6 (assault of a child under 13 by penetration) and any penetrative offences which although abolished by subsequent legislation would have been the equivalent of section 5 or 6 offences. It therefore includes any non-recent offences under the Sexual Offences Act 1956 which would now be charged as section 5 or 6 offences, if sentenced on or after 13 April 2015 and the offender was over 18 years.

The Court in the case of R v LF [2016] EWCA Crim 561 sets out a useful checklist at paragraph 27 and provides guidance for sentencing multiple offences.

Chapter 14: Protective Orders (SHPO, SRO) and Compensation

Sexual Harm Prevention Orders

A Sexual Harm Prevention Order (SHPO) may be sought for any offence listed in Schedule 3 or 5 of the Sexual offences Act 2003:

  • upon conviction (s.345 Sentencing Act 2020, which repealed and replaced the previous similar provisions in the Sexual Offences Act 2003)
  • upon a finding of ‘not guilty by reason of insanity’ (s.103A(2)(a)(ii) Sexual Offences Act 2003)
  • upon a finding that the defendant is under a disability and has done the act charged against them (s.103A(2)(a)(iii) Sexual Offences Act 2003).

The court may only impose an SHPO if it satisfied that it is necessary to do so for the purpose of:

  • protecting the public or any particular members of the public from sexual harm from the offender, or
  • protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the offender outside the United Kingdom.

The police may also apply to the magistrates’ court for an SHPO for ‘qualifying offenders’ whose behaviour, on the balance of probabilities, makes it necessary to protect the public, children or vulnerable adults from sexual harm (s.103A(3) Sexual Offences Act 2003).

Such applications are made by the police without reference to or involvement of the CPS and are determined on the balance of probabilities.

Section 103C of SOA 2003 states that an SHPO may have effect for a fixed period of at least five years, or until further order. The court may specify that some of the prohibitions have effect until further order and some have effect for a fixed period. Different periods for different prohibitions may therefore exist within the same order.

Prosecutor making an application under s.345 SA 2020, s.103A(2)(a)(ii) SOA 2003 or s.103A(2)(a)(iii) SOA 2003

SHPOs are available in both the Magistrates' Court and the Crown Court.

Schedule 3 Sexual Offences Act 2003 deals with most of the substantive sexual offences (for example rape under both SOA 1956 and SOA 2003 as well as indecent images of children). Prosecutors should consult the schedule when considering applying for a SHPO as some offences have specific conditions placed on when a SHPO can be ordered.

Schedule 5 contains a range of other offences, such as murder and GBH as well as theft, child cruelty and harassment.

A court can make an interim SHPO before the main application has been determined. Where a court makes a SHPO in relation to a person already subject to such an order, the earlier order or interim order ceases to have effect.

Sexual harm

Sexual harm is defined in section 103B of the SOA as below:

“sexual harm from a person means physical or psychological harm caused by the person committing one or more offences listed in Schedule 3”

The considerations outlined by the Sentencing Council in relation to SHPOs are as follows:

  1. Would an order minimise the risk of harm to the public or to any particular members of the public?
  2. Is it proportionate?
  3. Can it be policed effectively?

Jurisdiction

In the context of harm which has taken place outside the United Kingdom, this can be considered for the purposes of obtaining a SHPO if the person has done anything which would constitute an offence listed in Schedule 3, had it been done in any part of the United Kingdom.

Prohibitions

The only prohibitions which can be imposed by a SHPO are those which are necessary for the purpose of protecting the public from sexual harm from the defendant. These can be wide ranging. An order may, for example, prohibit someone from undertaking certain forms of employment. It may also prohibit the offender from engaging in particular activities on the internet. SHPOs may be used to limit and manage internet use by an offender, where it is considered proportionate and necessary to do so. The order may include both negative prohibitions and positive obligations (see below).

Where contact with children is prohibited, it is essential to include an exemption for incidental contact such as is inherent in everyday life. In relation to offences involving indecent images the Court of Appeal stated in R v Aldridge and R v Eaton [2012] EWCA Crim 1456 that conditions prohibiting contact with children should be made only on the basis of evidence to suggest progression by the defendant to contact offences.

In R v Smith and Others [2011] EWCA Crim 1772 the Court emphasised the need for the terms of an order to be specific to the exact requirements of the case. This was a case where SOPOs were being considered rather than SHPOs, but the principles are still equally applicable. The Court quashed a number of blanket prohibitions which they replaced with more focussed and balanced conditions, particularly in relation to computer use or internet access. The Court summed up its preferred approach by saying, "In the early days, terms completely barring the defendant from possession of a computer or access to the internet were not uncommon. Latterly terms of that kind have been quashed as unnecessary and disproportionate".

In R v Parsons and another [2017] EWCA Crim 2163 the Court of Appeal emphasised the need for the terms of any SHPO to be effective, clear, realistic, proportionate, and tailored to the facts. The Court confirmed the previous approach to blanket bans on internet access, stating that such a prohibition would not be appropriate in anything other than the most exceptional cases.

The Court in Parsons also addressed developments in technology, stating that changes in everyday living called for an adapted and targeted approach, particularly in relation to risk management monitoring software, cloud storage and encryption software. Prohibitions have to be aimed at the deliberate installation of software rather than that which is intrinsic to the operation of a device.

Below are some suggested SHPO prohibitions relating to the use of computers and internet enabled devices This list is non-exhaustive and the appropriate prohibitions to be requested will always depend on the nature of the case.

The defendant is prohibited from:

  1. Using any device capable of accessing the internet unless:
    • he has notified the police VISOR team within 3 days of the acquisition of any such device;
    • it has the capacity to retain and display the history of internet use, and he does not delete such history;
    • he makes the device available on request for inspection by a police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose.

This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use.

  1. Interfering with or bypassing the normal running of any such computer monitoring software.
  2. Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using 'incognito' mode or private browsing.
  3. Using any 'cloud' or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within 3 days of the creation of an account for such storage, he notifies the police of that activity and provides access to such storage on request for inspection by a police officer or police staff employee.
  4. Possessing any device capable of storing digital images i.e. a USB stick or external hard drive, unless he makes it available on request for inspection by a police officer or police staff employee.
  5. Installing any encryption or wiping software other than that which is intrinsic to the operation of the device.

Prohibitions on contact with children should normally specify the age as being ‘under-16’ unless the index offence or anticipated offence(s) involve 17-18 year-olds (see R v Smith and Others [2011] EWCA Crim 1772). For example, a prohibition might forbid the offender from: 

Having any contact of any kind with a person he knows or believes to be under the age of 16, whether directly or indirectly via social media or in any other way, other than:

  • inadvertent contact which is not reasonably avoidable in the course of lawful daily life, or
  • with the supervision of an adult approved in advance by social services, who has knowledge of his convictions.

Section 103D SOA 2003 outlines that a prohibition on foreign travel contained in a SHPO must be for a fixed period of not more than five years. The prohibition can be extended for a further period but must be for no more than five years each time.

Positive obligations

The addition of positive obligations to SHPOs and SROs was introduced by Part 10, Chapter 3 of the Police, Crime, Sentencing and Courts Act 2022. This amended the 2003 Sexual Offences Act to enable the courts to impose positive obligations where appropriate.

The amendments include:

  • The ability to require an individual to engage in a behaviour change programme, alcohol or drug treatment programme, or to take a polygraph test.
  • The ability to require an individual to wear an electronic monitoring tag (to monitor their compliance with other conditions in the order).
  • The provision that the court should apply the civil standard of proof ('balance of probabilities') when determining whether the individual has done the act in question.
  • The provision that Scottish SHPOs and SROs are fully enforceable in England and Wales and that orders made in one jurisdiction (either England and Wales, Scotland or Northern Ireland) can be varied, renewed or discharged in another jurisdiction.

The conferring of a power on the Secretary of State to prepare (or direct a relevant person, such as the National Crime Agency, to prepare) a list of countries deemed to be at "high risk" of child sexual abuse by UK nationals/residents. This list is to be considered by applicants and the courts when applying for, or making, a SHPO or SRO, for the purpose of protecting children outside the UK from the risk of sexual harm.

Service

In accordance with rule 31.3(5) of the Criminal Procedure Rules 2025 a written draft order should be served as soon as practicable and in any event before the hearing at which the order may be made. The draft order must specify those prohibitions, requirements or both which the prosecutor proposes to satisfy the statutory provisions that allow the court to make the order.

The Court has emphasised the responsibility of prosecution counsel in complying with this – R v Jackson [2012] EWCA Crim 2602.

Breach and sentencing

Breach of a SHPO made pursuant to s.103A SOA 2003 is an either-way offence contrary to s.103I Sexual Offences Act, which carries a maximum sentence of 5 years' imprisonment.

Breach of a SHPO made pursuant to s.345 SA 2020 (that is, an SHPO made on conviction after the commencement of the Sentencing Act 2020 on 1 December 2020) is an either-way offence contrary to s.354 SA 2020, which carries a maximum penalty of 5 years' imprisonment.

The CPS is responsible for prosecuting breaches of SHPO’s regardless of whether the order was made upon conviction, a finding of insanity or unfitness to plead or was made upon complaint by the police in the magistrates’ court.

Prosecutors should note that is neither a defence nor mitigation if the provision of the SHPO that was breached was subsequently varied or removed: R v Beeden [2013] EWCA Crim 63.

The prosecutor’s role

The police should consider whether a SHPO is appropriate and, if so, they should provide a draft order to the CPS. In bail cases the draft SHPO should be provided pre-charge. In Threshold Test custody cases it should be provided as soon as possible after charge. Where no SHPO has been supplied by the police, the prosecutor should make their own assessment and liaise with the police accordingly. If the prosecutor decides that an SHPO is appropriate, then they should request a draft from the police and should consult with them on its terms. The prosecutor should aways review the draft SHPO in consultation with the police to ensure that its terms are appropriate, proportionate and precisely worded so that it is capable of being effectively monitored and enforced.

If the court makes a SHPO in respect of an offender who is already subject to such an order, the earlier order ceases to have effect (section 103C(6)). Accordingly, any terms from a pre-existing SHPO that are still relevant and appropriate will have to be specifically included in an application for a new order or they will no longer apply.

Although there is no statutory requirement for a formal application by the prosecution when the court deals with a defendant, the Court of Appeal has emphasised the need to alert the court and defence at the earliest opportunity that an order is to be sought and to provide a draft in advance of the sentencing hearing. 

In R v Smith and Others [2011] EWCA Crim 1772, the Court of Appeal held that it was “the usual rule” that a SHPO should not be imposed in conjunction with an indeterminate sentence because it was wrong in principle to try and assess the risk at the sentencing stage as it would in all likelihood be different from any future risk which might exist at the time of release.

Variation of a SHPO

Only the police and the defendant may apply to vary a SHPO (s.103E, s.350 Sentencing Act 2020). The CPS is not authorised to make an application for a variation. Where the police require legal representation, this should be through their own in-house legal team.

In R v Terence Hoath [2011] EWCA Crim 274 the Court of Appeal made it clear that powers to vary a SOPO should be exercised only when there was a change of circumstances. Where the defendant objects in principle to the terms of a SOPO imposed by the Crown Court the correct approach is an appeal, as opposed to a variation.

The Court of Appeal in Hoath suggested that the CPS might correctly be involved in a variation where it occurred very shortly after the making of the order and involved “particular and unanticipated difficulties arising from the form and/or wording of the order”. The Court continued: “those difficulties should be identified promptly (in writing and with particularity) and sent to the prosecuting authority so as to see whether the matter can be put before the Crown Court on an agreed basis and in any event to narrow the area of dispute”. This would in reality only happen rarely and in very specific circumstances.

Appeal against variation or refusal to vary a SHPO

Appeals are governed by s.353 Sentencing Act 2020.

The relationship between SHPOs and the Sex Offender Notification Rules

Unlike a SHPO which must be ordered by a court, the sex offender notification rules (sections 80 – 102 SOA 2003) follow automatically upon conviction for most sexual offences. The term during which the notification requirements apply depends upon the length and nature of the sentence imposed and range from 2 years in the case of a caution to indefinitely if the sentence is imprisonment for 30 months or more.

In R v Smith and Others [2011] EWCA Crim 1772, the Court of Appeal considered the relationship between SOPOs and the notification provisions and agreed that “a SOPO must operate in tandem with the statutory notification requirements” and “not conflict with any of those requirements”. They decried any use of a SOPO to extend notification periods beyond the time prescribed by law as “not a proper use of … power”. The Court of Appeal considered whether any SOPO should be for the same period as any notification and decided this was not necessary. The Court could “see no objection to the … provisions of a SOPO extending beyond the notification requirements” and added “it may also be possible that a SOPO for less than an indefinite period might be found to be the right order in a case where the notification requirements endure for ever”.

The same considerations would apply when considering SHPOs.

Additional Useful Case Law

The Court has no power to order a SHPO for breach of a SOPO – R v Harmer [2017] EWCA Crim 192.

Sexual Risk Orders

A Sexual Risk Orders (SROs) is a preventative order created by s.122A Sexual Offences Act 2003 which can only be made by a magistrates’ court upon complaint by the police or National Crime Agency.

An order can be made if the court is satisfied, on the balance of probabilities that:

  • the defendant has, whether before or after the commencement of the SOA 2003, done one or more acts of a sexual nature as alleged by the person making the application, and
  • the court is satisfied that as a result of the defendant acting in such a way it is necessary to make such an order for the purpose of -
    • protecting the public or any particular members of the public from harm from the defendant, or
    • protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

The provisions governing SROs are set out in ss.122A-122K SOA 2003 and mirror the provisions which govern SOPO’s. The key difference is that SROS apply to unconvicted persons.

Breach of an SRO is an either-way offence contrary to s.122H SOA 2003, which carries a maximum sentence of 5 years' imprisonment.

The CPS has no involvement in making applications for SROs, but is responsible for prosecuting breaches of these orders.

Compensation Orders

Compensation orders are governed by sections 133-135 of the Sentencing Act 2020 (‘SA 2020’), which applies to all convictions on or after 1 December 2020. There is no statutory limit on the amount of compensation that may be imposed in respect of offences for an offender aged 18 or over. A compensation order shall not exceed £5,000 where a magistrates' court imposes such an order on an offender aged under 18. Compensation may also be ordered in respect of offences taken into consideration [‘TICs’] (section 133(a)(ii) SA 2020).

Subject to consideration of the victim’s views, the court has a discretion to order compensation, wherever possible, and should not decline to do so by reason only of the availability of other sources of recompense such as civil litigation or the Criminal Injuries Compensation Scheme, which have the power to take into account any compensation ordered in deciding whether to make a further award.

Compensation orders may be imposed on an offender 'instead of or in addition to dealing with him in any other way' (section 134(2) SA 2020). Where it would be appropriate both to impose a fine and to make a compensation order, but the offender has insufficient means to pay both, the court shall give preference to compensation, though it may impose a fine as well (section 135(4) SA 2020).

The court is under a duty to consider making a compensation order in any case where it is empowered to, whether on application or not. The courts must give reasons where it does not make an order (section 55 SA 2020).

The prosecutor should be ready to assist the court to reach the appropriate decision as to sentence, which includes drawing the court's attention to its obligation to consider compensation, inviting them to make such an order where appropriate and providing information in order to assess an appropriate award. The prosecutor should ensure all other ancillary orders which may be relevant have been explored.

Chapter 15: Issues relevant to particular groups of people

Introduction

This chapter should be considered as part of Case Strategy Principle 5: The Full Picture - Understanding the human context. This means seeing each person involved as a complex individual with lived experience which will shape the case. This chapter will also support prosecutors adopting a suspect-centric approach in considering why a suspect may have targeted a particular victim and should form part of a strong case strategy.

It is essential that prosecutors recognise that each complainant’s experience of sexual violence is unique and that the interconnected nature of social categorisations including, but not limited to, race, class, caste, gender, ethnicity, sexuality, disability, nationality, immigration status, geographical location and religion can create interdependent systems of discrimination and disadvantage. A victim's vulnerability may also be increased as a result of their personal characteristics.

The list of groups identified below is not exhaustive and should only be used as a guide as it is not possible to include every scenario within this guidance.

Victims of domestic abuse

Victims of domestic abuse face particular pressures which influence responses to abuse and to efforts made by the prosecution team to secure justice via the criminal justice system which may at times appear to be counter-intuitive. Factors including continuing emotional attachment to a perpetrator, fear of repercussions, pressures from the wider community, impact on children, impact on finances, uncertainty regarding immigration status and fear of the court process will cause some victims to choose to remain in abusive relationships and to disengage with a prosecution.

Prosecutors must ensure that all necessary steps are taken to secure and maintain the support of the complainant for the duration of the prosecution process which will include a full investigation of available special measures. Many victims of sexual violence will feel intimidated by the prospect of the perpetrator’s family and friends being present in the courtroom when they give evidence and in these circumstances consideration should be given to applying to the court for the public gallery to be cleared in accordance with section 25(4)(a) Youth Justice and Criminal Evidence Act 1999.

For more information prosecutors should refer to the Domestic Abuse prosecution guidance, the Controlling or Coercive Behaviour in an Intimate or Family relationship prosecution guidance and the Special Measures guidance.

Victims of child sexual abuse and exploitation

Child sexual abuse and exploitation can affect any child (regardless of their background, culture, religion, or community), and victims may respond to abuse in many different ways. The abuse may take place in-person or online, and may be a one-off incident or repeated over months or years. These crimes can cause lifelong trauma for victims, and some people who were sexually abused as children may not feel able to report what happened until adulthood.

For more information on the contexts that may be relevant to cases where a sexual offence has been committed against a child or young person, and on best practice for supporting victims and witnesses, prosecutors should consult the Child Sexual Abuse prosecution guidelines.

Teenagers in abusive peer relationships

Prosecutors need to take into consideration a number of factors when dealing with cases of teenage victims who find themselves in abusive relationships with individuals of their own, or, similar age. These abusive relationships are sometimes described as a form of ‘child-on-child’ sexual abuse.

Abuse between teenagers may take place in person or online, involving both contact and non-contact offending. It can take place within the home, but certain behaviours may be perpetrated at school, college, or university, within extra-curricular clubs, at social events, or within the wider neighbourhood or community.

Some teenage victims may also be living with the perpetrator’s family. In some instances, this may prove to be an additional barrier to reporting, even if the family are unaware of the abuse taking place.

Prosecutors should carefully consider the context and dynamics of the relationship between teenagers. Some victims may not recognise they are in an abusive relationship, or may have normalised the perpetrator’s behaviour in some way.

Prosecutors should be mindful that the parents of those involved may not know about the relationship. Teenagers may fear disclosing it because of concerns about how their family might react – for example, in relation to their own or their partner’s sexuality, race, or simply the fact that they are in a relationship at all. They may also fear their family’s reactions to the offending or any subsequent criminal proceedings. These factors may pose additional barriers to reporting.

Prosecutors should be mindful that family reactions may have a significant impact on the victim, and should therefore approach all communications with care and sensitivity. Prosecutors are advised to find out about the victim’s family circumstances and dynamics so they can determine who should receive any communications – recognising that parents, guardians, and other family members are often a source of support for young victims, but that this may not be the case in every situation. If family members are not aware of the relationship or of the nature of the abuse taking place, then any communication that reveals this could place the young person at further risk. An individualised and informed approach is therefore necessary – prosecutors should ask about relevant family relationships, and clarify to whom, where and how communications should be sent. Prosecutors should be aware that:

  • young people can experience sexual abuse and violence irrespective of their background, culture, religion, or community
  • young people may not be aware that certain behaviours constitute abuse, or may see them as a ‘normal’ part of a relationship
  • victims may believe that only physical violence constitutes abuse, and not be aware that abuse can also be perpetuated through online communication and digital platforms
  • victims may be being abused by other older family members or relatives, and may again not recognise this behaviour as abusive
  • the victim’s relationship with their family may prevent them from coming forward to report a crime
  • where a victim has no family support (for example, because they are estranged or homeless) they may be less willing to report a crime
  • victims may feel they cannot trust some adults or authority figures
  • teenage victims are unlikely to be financially independent and may fear losing financial support from their family if the abuse is dissolved, or may worry about how to access or pay for services without their family's knowledge
  • teenage victims who have children of their own may fear that reporting abuse could lead to their children being removed from their care (and the same concern may apply to adult victims with children); victims may not know of the support offered by the criminal justice system, such as the availability of special measures
  • teenagers may fear ‘getting into trouble’ if their own behaviour is revealed (for example, being sexually active, drinking alcohol, or abusing substances– particularly if their family are unaware of this)
  • victims may feel unable to report abuse due to fears about the impact it might have on their lifestyle (for example, bullying from peers in the same social group, either in person or online)
  • victims may worry that reporting abuse might restrict their social activities (for example, visiting the same places as the perpetrator, such as shopping centres, clubs, or their own neighbourhood)
  • victims may not want to report a crime as they fear any abuse might continue or even escalate (even if the relationship ends)
  • victims who regularly see their abuser at school, college, or university may find reporting particularly difficult, as they may fear negative reactions from the abuser’s friends or wider peer group
  • reporting may make the victim more vulnerable to other types of abuse or harm, such as cyber-bullying or other forms of targeted harassment
  • intersectional factors – including the victim’s cultural or religious background, their sexual orientation, and other aspects of their identity or circumstances – may create additional barriers to reporting, for fear of embarrassing or shaming their community or of being ‘outed’.

For further information on youth matters and consent matters, prosecutors may want to refer to the prosecution guidance on Children as suspects and defendants and Allegations involving children and young people in this guidance.

Black, minoritised and migrant communities

Each offence, perpetrator and victim will be very different, and care should be taken to avoid stereotyping the type of abuse that may be suffered by victims from specific ethnic communities.

Perceptions or experiences of racism in the criminal justice system and throughout other aspects of society may make it difficult for victims of sexual abuse in minoritised ethnic communities to report an offence or support a prosecution. Many victims may worry that they may not be believed or that they may not be treated fairly. Additional considerations, such as pressure from within the immediate and extended family and the wider community, together with cultural traditions, may also prevent or delay victims from reporting offences of sexual abuse.

Prosecutors should be aware of the additional forms of abuse that may take place within minoritised ethnic communities and refer to the 'Honour'-Based abuse, Forced Marriage and harmful practices guidance.

In some minoritised groups, women may become more vulnerable and fear leaving their abuser because they may be unable to speak or understand English to a confident level and may therefore feel unable to access the support that is needed. This may be exploited by abusers, especially in scenarios between intimate partners where threats may be made to have children taken into care. Some survivors may be actively denied access to opportunities to develop English language skills as part of the abuse and control they experience. The same methods of manipulation may be used to suggest that the victim is suffering from mental health issues, where she/he may not be.

Additionally, some women with little understanding or confidence of English language may be left in difficult situations where they have participated in religious (but not legally binding) ceremonies to marry British national men. Some victims in these circumstances will experience castigation by their husband where they do not conform to family expectations, and may be as a result left without any family or friends, community support, financial means, and in some extreme cases even made homeless. These are only some examples of the barriers and difficulties faced by women from ethnic minoritised communities and should not be seen as an exhaustive list.

It is therefore important that prosecutors obtain as much information from the police, and with the assistance of specialist groups where available, to understand the nature of abuse experienced by the victim, and to enable identification of the support needs required by them.

There are specific support organisations available for some ethnic minoritised groups - victims should be put in contact with these support organisations by the police, wherever possible.

Cultural or religious beliefs may also be a deterrent for victims coming forward; victims may be made to feel ashamed by their community, or may fear isolation by the community. Victims may also fail to report or withdraw support as a result of pressure from family members, particularly when the victim and perpetrator are related or married. Some victims may fail to recognise the behaviour as abuse due to their cultural or religious beliefs, which can result in delayed reporting. For example, marital rape is not recognised in some communities, meaning victims may not know that this is abuse until they have accessed support services or advice from someone outside of their community. Additionally, community leaders or faith leaders in some cultures or ethnic groups may play the role of a mediator and discourage the victim from reporting. Prosecutors should be sensitive to cultural issues which may take the form of mediation, as well as certain practices which some cultures exercise. Cultural and religious practices should be respected to a point; however, they should not be seen as an 'excuse' to cover abuse between partners or family members.

Prosecutors should be aware of community courts/arbitration forums in some communities. Prosecutors will be aware that they should not be used as an alternative to criminal proceedings. Some perpetrators may use these mechanisms to make a case for staying with their partner, thereby enabling the abuse to be continued. Prosecutors should refer to specialist support services and organisations where required to ensure that a proper understanding of such practices is obtained, and that any risks to victims are properly identified.

Prosecutors should ensure that family members do not act as interpreters for those who do not have a competent or confident understanding of English. Prosecutors should refer to the prosecution guidance on Witnesses and ensure that through the police or support agencies, checks are made with the victim that the interpreter does not have any connection with them or their family. Victims may request an interpreter of the same sex - this should be arranged so far as is possible. Prosecutors should also bear in mind that written communication may also be difficult for a victim to understand, and translators may be required in these circumstances.

Interpreters from within the victim's or perpetrator's community group should also be avoided as this may place victims at further risk of violence. Community members may discover the victim's recourse through the criminal justice system and may put the victim at further risk in an attempt not to bring shame on the family or community. The element of shame may also result in increased pressure for the victim to withdraw from a prosecution.

See the Domestic Abuse prosecution guidance for further information about domestic abuse within minoritised ethnic communities.

Gypsy, Roma and traveller victims

Sexual violence perpetrated against Gypsy, Roma and traveller victims should be considered within the wider context of so-called ‘Honour’-Based Violence. For example, sexual violence may have been perpetrated against a Gypsy, Roma and traveller member of the community by (an)other community member(s) as a form of punishment for causing ‘dishonour’ (or, in Irish Traveller communities, victims have reported this is usually referred to as ‘scandal’) to the family or community. Alternatively, victims have reported experiencing so-called ‘Honour’-Based Violence as a result of ‘causing scandal/dishonour’ to a family or community due to experiencing sexual violence and/or reporting this.

One barrier to reporting sexual violence and supporting prosecutions often cited by Gypsy, Roma and traveller victims is concerns/fear for their safety in light of possible repercussions from the perpetrator/extended family members. In light of these risks many Gypsy, Roma and traveller victims have had to flee sexual or domestic abuse before they are able to report it safely. This often means they have to leave behind their family and community and many victims report feeling very isolated. A further barrier to engaging with the criminal justice process for Gypsy, Roma and traveller victims may be concerns about referrals to social services if the victim has children due to the discrimination Gypsy, Roma and traveller members of the community feel they have experienced from local authority services. Many Gypsy, Roma and traveller members of the community struggle with literacy and some are unable to read and write. To ensure accessibility, additional support should be offered throughout the investigation and prosecution process in the form of telephone contact and support to read through letters or documents and fill in forms etc. Many victims have reported that having an advocate present for meetings or hearings is also helpful.

Immigrants, refugees and asylum seekers

There will be a number of victims with insecure immigration status, and they may as a result have 'no recourse to public funds' despite having valid leave to stay in the country. This restriction has made it difficult for victims to leave abusive situations, often leaving them with no option but to stay in the abusive relationship or leave with little support thereafter.

Immigrants will experience many barriers to reporting sexual abuse; in fact, an individual's immigration status may be used as a vulnerability to perpetrate abuse by the defendant through fear that insecure immigration status of the victim may be 'outed'. The perpetrator's immigration status may also be used as a way to commit offences and exploit a victim - for example, the perpetrator may use the insecure status to prevent the victim from reporting the offending behaviour to the police, by telling the victim they may be penalised by the authorities in some way. Some victims may have entered the country through forced marriage and be kept isolated from other people or services or social freedom, and may find themselves being unable to leave their situation for fear of lack of support or knowledge of services available. Prosecutors may find it helpful to also refer to the prosecution guidance on Human Trafficking to support case handling which exemplify such issues.

When reviewing a case in which the victim is a member of the refugee community or an asylum seeker, prosecutors should take into account the combination of social and cultural factors, communication difficulties, lack of information in their own language and lack of access to informal and formal support, which may make it difficult for the victim to support or take part in a prosecution. Some asylum seekers and refugees may have been victims of abuse in the countries they have escaped from; they also be suffering from experiences related to that abuse, such as mental health problems.

People with disabilities

Many people with disabilities face problems of negative attitudes towards either their mental or physical impairment and may often feel or be made to feel isolated. In fact, some victims may be specifically targeted as a result of their disability by the abuser, to exert control and dominance, whether through sexual violence, physical violence, or through less obvious controlling and coercive behaviours.

Care should be taken not to make assumptions about or overstate the effect of a person’s disabilities. It is important to recognise the disability-related abuse experienced and also how the disability is used to further exploit, manipulate and control the victim.

Prosecutors should note that victims with disabilities will experience some of the same physical violence and coercive control that victims without disabilities experience; however, victims with disabilities may experience other types of abuse as a result of their specific disability.

Prosecutors should be aware that some victims may be unwilling or unable to report abuse due to limited access to services, a lack of confidence with managing everyday tasks, low self-esteem, or an enforced dependence on others to carry out those tasks. This social and physical dependence can lead to an increase in a victim's vulnerability to domestic and sexual abuse, leaving them with few or no alternatives to escape the violence. These circumstances may be exacerbated further by the possibility that the abuser may also be the victim's carer.

Some victims may feel they cannot leave, because, for example, they have limited economic or financial means; they may lack transport; they feel they are responsible for financial and social tensions within the relationship/family; they fear loneliness and think no-one else would want them; they fear losing their independence and having to move into residential care; or, they fear losing their children.

The early identification of specific support needs is critical. Certain disabilities will require specialist care and attention to ensure that the victim has been properly understood when providing their account of the offending behaviour, and that they are comfortably supported with special measures and other support requirements if attending court.

For example, for deaf victims it will be important to appoint an independent sign language supporter who can assist the victim and facilitate communication with criminal justice agencies. It may be beneficial for this supporter to attend court with the victim – it is known that in some cases, perpetrators are able to intimidate or harass the victim in court through signing where others may not understand what they are communicating; the presence of an independent signer may alert the court and others to such further offences if they do take place.

It may be necessary for communication with some victims with disabilities to be facilitated by a third party. Prosecutors should note that third parties may not always be accurate and/or neutral, and victims should be entitled to confidentiality when reporting sexual violence. Where possible, prosecutors and officers should tailor the method of communication to the victim’s needs.

Learning Disabled Victims

Some people with learning disabilities may have difficulties verbalising a consistent account, particularly the timing or sequencing of events. This may result in the credibility of their account being questioned.

A victim’s learning disability might affect their emotional expression or behaviour; for example, they may speak bluntly. This may belie the emotional impact of their experience and differ to others’ expectations of the ‘correct’ response to trauma.

Prosecutors should consider these challenges when assessing the evidence and ensure that any misconceptions are clearly addressed within their case strategy.

Prosecutors should also be wary of the distinction between crimes committed against those with disabilities, and disability hate crime - for further information prosecutors should refer to the prosecution guidance on Hate Crime.

Prosecutors should also consider the use of intermediaries for some victims. Further advice can be found in the prosecution guidance on Special Measures.

Assisting those with disabilities and vulnerable victims through prosecutions will need to be conducted as a multi-agency approach, to ensure a holistic approach handling such cases of abuse. MASH, Local Safeguarding Children Boards and Safeguarding Adult Boards will all have a role to play. Prosecutors should consult with the police to assess what information may be available and can be shared to inform prosecution proceedings.

Pre-existing mental ill health and potential psychological reactions to sexual abuse

Victims with mental health conditions should also be given special care and attention by prosecutors. Victims will require more tailored approaches depending on the level of their mental capacity and/or learning difficulty; this should not be taken to undermine competency as victim or as a witness in court.

Mental health conditions may make individuals more likely to be victims of sexual abuse and less likely to report these offences to the police. People with mental health problems may feel that they will not be believed if they report being raped. It is vital that prosecutors avoid making charging decisions which draw erroneous conclusions with respect to the impact of pre-existing psychological conditions on the reliability of evidence and are aware of the specific support that individuals will require during their journey through the criminal justice process.

Rape and serious sexual assault can affect many areas of an individual’s life for many months and sometimes years following the attack. In addition to experiencing psychological difficulties, the complainant may suffer ongoing physical problems, resort to alcohol or drug abuse, experience alterations to their day-to-day behaviour and find that their thought processes are very different, as a direct consequence of the attack.

Psychological and physiological reactions occurring at the time of the trauma can have an impact upon the individual’s ability to give a coherent, consistent account of their experiences. Subsequent changes to the victim’s account of events may be viewed as evidence that they cannot be believed. Post-traumatic symptoms will also potentially affect recall and consistency - indeed an inability to recall aspects of the event is one characteristic symptom of PTSD (post-traumatic stress disorder). Victims experience feelings of shame and self-blame and this may result in an incomplete or inaccurate account of the circumstances surrounding the assault. Cultural issues may have a significant impact, as may the stage of development, if the victim is a child.

To assist prosecutors with this complex area a Psychological Evidence Toolkit for Prosecutors has been developed with the assistance of Professor Fiona Mason, a Consultant Forensic Psychiatrist and specialist in women’s mental health and the impact of trauma and Dr Enys Delmage, a Consultant in Adolescent Forensic Psychiatry and Honorary Assistant Professor at the University of Nottingham. The toolkit has a number of specific objectives including: 

  1. Providing guidance on a range of pre-existing psychological conditions applicable to adults which will assist prosecutors with the task of assessing evidence provided by a witness suffering from a particular condition and highlight where expert comment may be required to facilitate a fair assessment of evidence.
  2. Providing guidance on a range of pre-existing psychological conditions applicable to children and adolescents which will assist prosecutors with the task of assessing evidence provided by a witness suffering from a particular condition and highlight where expert comment may be required to facilitate a fair assessment of evidence.
  3. Highlighting the specific support that an individual suffering from a particular condition is likely to require during their journey through the criminal justice process from ABE to giving evidence at trial.
  4. Providing guidance on how the approach taken to the treatment of a pre-existing condition can impact upon the reliability of memory and the potential for the creation of ‘false memories’.
  5. Providing guidance on the psychological effects of rape and sexual assault in order to increase understanding of the typical behaviour patterns of traumatised complainants thus protecting against the undue influence of myths and stereotypes in decision-making.
  6. Providing guidance on post-traumatic stress disorder to enable prosecutors to recognise when expert instruction on psychological injury should be sought in accordance with R v Adam Eden R.

Further guidance for prosecutors can be found in the prosecution guidance on Victims with mental health conditions and/or learning difficulties.

Same Sex Sexual Violence

Distinct issues arise in relation to cases involving allegations of sexual violence involving adults where both the complainant and suspect/defendant are the same sex or where the complainant or suspect/defendant is trans and so it may not be appropriate in these situations to approach the case using the same assumptions as you might apply if the parties were heterosexual. The additional factors will be different depending on the whether the case involves allegations of sexual violence between men, sexual violence between women, or cases involving trans people. Prosecutors should refer to the Same Sex Sexual Violence Toolkit for more information.

Male Victims

Whilst boys and men as victims may experience the same barriers to reporting abuse and supporting a prosecution as female victims, however some of these may also operate differently in this context because of their sex. Male victims may also experience barriers specific to their circumstances. The sex of the suspect/defendant may also influence how these barriers operate. The CPS Men and Boys Statement is helpful in this regard.

Male victims may not recognise their experience as abuse where it does not align with the legal definition and societal understanding of the crime. For example, a male who has been sexually assaulted may not classify his experience as ‘rape’ or ‘sexual assault’. Victims may particularly struggle to recognise the sexual assault in cases involving a female suspect/defendant. Research into jury decision making in sexual offence cases including male victims shows that this disconnect can be shared by jurors, making it difficult for them to understand the charge and what the prosecution needs to prove.

Assumptions and misconceptions about masculinity and victimhood can also impact reporting and engagement. These include the feeling that being abused diminishes their masculinity; having their sexuality questioned or stereotyped; and having their abuse dismissed or minimised if abused by a female. Annex A contains further detail on these misconceptions and how they can be rebutted.

LGBT+ Victims of Sexual Violence

The phrase ‘LGBT’ refers to lesbians, gay men, bisexual and trans people. It is used to describe people with a range of identities, life experiences, perspectives and needs associated with sexuality and/or gender identity. The ‘+’ is used to show that people with a range of identities which might not fit under those headings are also included, for example people who identify as non-binary (sometimes included in ‘trans’), queer, genderqueer people, asexual, intersex, pansexual and those who are questioning their sexuality or gender identity.

LGBT+ people may experience sexual violence in a context which does not make it apparent that they are LGBT+ or when their sexuality and/or gender identity appear irrelevant - for example, a lesbian raped by a man, a bisexual woman raped by her male partner, a non-binary person who is assumed to be male or female, or a gay man abused as a child.

LGBT+ people can experience sexual violence as children and adults in the same ways as non-LGBT+ people. However, there are some specific forms of sexualised violence that affect LGBT+ people of which prosecutors need to be aware. These include:

  • so-called ‘corrective rape’ which purports to ‘punish’ or ‘cure’ someone’s sexuality and/or gender identity
  • sexual assault motivated by homophobia, biphobia and/or transphobia and/or anti-LGBT+ stereotypes
  • grooming which uses the fact of a child or adult’s sexuality or gender identity to threaten or silence them, and/or exploits their search for belonging and affirmation, and/or targets their vulnerability as a marginalised person.

Prosecutors should note that a significant concern for LGBT+ complainants is being ‘outed’ or being ostracised from their community or friendship network, as some are outed without their consent, and this will be a concern for many going through the criminal justice process. The consequences of being outed can be difficult and even dangerous for some - prosecutors, with police colleagues, should consider carefully the need for safety and confidentiality for LGBT+ complainants.

Many LGBT+ people will be reluctant to talk with criminal justice agencies about their LGBT+ identity on the basis that the person they talk to will not understand and ask questions that will feel intrusive, gratuitous or judgemental. Prosecutor should be aware that LGBT+ people may feel forced to explain LGBT+ identities, language and community norms and worry about experiencing a homophobic, biphobic or transphobic reaction from the person they tell and sensitivity should be displayed in any engagement.

Trans and Non-Binary Victims

Gender identity is not the same as anatomical sex. Gender identity is what you know your gender to be and can only be decided by the individual for themselves. Gender identity might be the same as assigned sex (cisgender) or different to assigned sex (trans). Gender identity is not the same as sexuality; trans and non-binary people identify as heterosexual, gay, lesbian, bisexual, pansexual, asexual and aromantic, amongst other identities.

Trans people are those who know their gender to be different to that which they were assigned at birth. ‘Trans’ is an umbrella terms which some non-binary people feel part of, but not all. Many trans people have a binary gender identity (male or female) but not all. Some will have taken, or been given the opportunity to take, steps to align their bodies, dress, name, pronoun and social identity to be congruent with who they know themselves to be. Prosecutors should be aware that this process - called ‘transitioning’ – is not easy and can take many years. For some trans people, it is not medically or socially possible to transition.

Non-binary people do not identify as male or female but as both or neither. There have always been non-binary people but it is only in recent times that they have felt able in larger numbers to identify their gender identity. However they were assigned at birth, non-binary people feel that their gender identity cannot be expressed through the binary identities. Prosecutors should be aware that some non-binary people feel comfortable with their body or aspects of their gender as assigned at birth, others less so, and non-binary people may be subject to gendered violence. Prosecutors should also be aware that non-binary people may be invisible within services and the criminal justice system and may feel they have to deny their identity to navigate those systems safely. It is good practice for prosecutors to be aware of gender identity wherever possible and ensure that complainants know that this information is confidential unless relevant to the case. It is important to ask people which pronouns they prefer and to use these.

Gang Associated Sexual Exploitation and Violence

Prosecutors should be alert to the possibility of gang offending in a wide range of cases, including those involving rape. Rape may take place in the confines of gangs and be part of members’ initiation or part of a particular gang’s behaviour. Prosecutors should recognise that gang environments are largely male-dominated, and abuse taking place is largely against female victims; but females in gangs may also be perpetrators and males may be victims. It is particularly important that lawyers are alert to the dynamics of gang offending when giving charging advice.

Types of sexual violence may involve:

  • the victim pressured into having sex with more than one person sometimes under threat of a weapon
  • sex in return for status or protection
  • rape by an individual or group
  • sex to pay for drugs or alcohol
  • being used to set up other young men in a rival gang (to find out what they are saying)
  • initiation – having sex with more than one member to become part of a gang
  • sexting – being photographed or filmed

The reporting of sexual violence against gang members is thought to be low due to the vulnerability of the complainant to further abuse, threats or violence and therefore special measures and support for the victim will be crucial in ensuring the victim remains engaged throughout the prosecution process.

These cases will often feature children and young persons as offenders. See Children as suspects and defendants guidance for more information.

See also prosecution guidance on Gang Related Offences which includes consideration of gang related violence against women and girls.

Older Victims

Some older people may be vulnerable to sexual abuse as a result of their mental or physical frailty, and/or mental capacity or physical disabilities; however, these are not the only factors which could lead to an older person being abused. Other factors prosecutors may want to consider include:

  • events occurring in later life such as the development of health problems or the retirement of their abuser from work may lead to a victim experiencing abuse or violence, or an increase in such behaviour;
  • changes in life circumstances leading to a shift in the balance of power between intimate partners, or family members - where one individual may wish to retaliate against another, or 'get their own back' after suffering from abuse previously;
  • where the victim is physically impaired or experiencing ill health, abuse may begin as a result of 'care-giver' stress or anxiety;
  • the victim's mental health may also lead to them being more vulnerable and at increased risk of abuse; or,
  • older age can lead to societal or geographical exclusion or isolation which may make a victim more vulnerable to abuse.

This is not an exhaustive list, and prosecutors should be mindful that some of these factors may also relate to inter-familial or age-related abuse, and not just abuse between intimate partners.

Abuse may be perpetrated on older victims for a number of reasons, and does not necessarily cease or reduce as the victim or abuser gets older. In fact, an older victim may experience more frequent or increased intensity of abuse as they feel they are less able to 'escape' the abuse; additionally, some older people may only start to experience abuse at this stage in their life. Older victims may:

  • have grown up in a generation where sexual abuse was acceptable and not 'talked about', or expected to be tolerated as a part of a 'normal' relationship;
  • find themselves in a mutually dependent relationship with their abuser, and as a result may fear that by reporting the abuse and supporting a prosecution, they will be left without a carer or companion, or without any financial support;
  • feel unable to cope leaving their family home and everything they had built up with their partner over the years;
  • have less knowledge of support services available to them, as some may not know how to access the information to find out more, or may be unaware of the services and the support that may be available to them. Some victims may also believe that services are not available to them because of their age;
  • have no financial independence (such as not owning their own bank account or not having their name appear on the mortgage deed to their family home). This financial issue may also escalate to a wider issue, where the victim may not easily be able to prove they have a separate identity to their abuser and fear that they may not be able to support themselves as a result;
  • fear negative reactions they may receive from their family or children and the thought that they may be 'making a fuss at their age'. Victims may also fear reactions from their wider community or ethnic group;
  • want to protect the 'sanctity of marriage' and the privacy of their home life, and not wanting to involve 'outside' parties in their domestic life;
  • have concerns over additional health needs as a result of a disability or impairment, the onset of mental health conditions, or deteriorating ill health; and,
  • sometimes simply fear the unknown.

Prosecutors should be alert to the range of issues within this section which may assist with understanding the dynamics of the abuse being experienced by an older victim. For example, older victims with mental health difficulties may experience very different abuse and require very distinct support needs to older victims with full mental and physical capacity, who are a member of particular ethnic community and being abused by a family member. Each case will need to be examined on its own facts and merits to ensure the most appropriate support requirements are identified.

Prosecutors and police officers should ensure there are no perceptions or assumptions made about a complainant. More often, older victims fear they will not be believed or fear that criminal justice agencies might think they have fabricated an allegation for attention. Complaints should be investigated thoroughly to ensure that all aspects of a victim's circumstances are taken into consideration before a charging decision is made.

Prosecutors may also wish to refer to the prosecution guidance on Prosecuting Crimes Against Older People for further information.

Individuals involved in prostitution

Individuals involved in prostitution may be more vulnerable as a result of their immigration status, age, mental health vulnerabilities, ethnic background or addiction/substance misuse. Victims may be at risk of sexual and domestic abuse, particularly if, as in many instances, their partner is also their 'pimp'. Additionally, victims may be forced or coerced to become involved in prostitution by their spouse or partner, which is also seen as a way of perpetrating abuse.

When dealing with cases where the victim is involved in prostitution, it is essential that prosecutors work proactively with the police to ensure as far as possible, that the victim is fully supported during any proceedings. It should be recognised that some victims may fear coming forward as a result of their circumstances and the possibility of already being known to the police. Continuing with a prosecution may place a victim at further risk from their 'pimp' or partner. As a result, victims may be more likely to support a prosecution if there are arrangements made to ensure their safety.

Regardless of safety measures put in place, victims involved in prostitution may decide to withdraw their support for a prosecution; it is essential that if a prosecution continues that these safety considerations remain in place - the safety of the victim is paramount. Prosecutors should request that police colleagues conduct risk assessments around the risks to the victim and what further risks may be revealed if for example, the victim is compelled to give evidence by witness summons.

Further information and considerations specific to their circumstances can be found in the prosecution guidance on Prostitution and Exploitation of Prostitution.

Victims who have potentially committed drugs offences

Victims of rape or sexual assault who have used illegal drugs prior to an attack may be reluctant to report criminality for fear of prosecution for drugs offences. Those who do report may be reluctant to provide the police with an entirely accurate account of events which may in turn serve to significantly reduce the prospects of conviction.

Police forces and victim support agencies report a significant increase in cases where victims are sexually assaulted within a ‘chemsex’ setting including cases where offences are ‘live-streamed’ online. Chemsex is the term used to describe sexual activity which occurs when participants are under the influence of drugs taken immediately preceding and/or during sexual activity. Chemsex often takes place within party settings organised via social media applications. Chemsex is believed to be particularly prevalent within the gay community but also occurs within transsexual, bisexual, lesbian and heterosexual communities. The drugs most commonly associated with chemsex are crystal methamphetamine (Class A), GHB/GBL (Class C) mephedrone (Class B), cocaine (Class A) and ketamine (Class C). All of these drugs with the exception of ketamine are stimulant drugs in that they typically increase heart rate and blood pressure and trigger feelings of euphoria, but crystal methamphetamine, GHB/GBL and mephedone also have a common effect of facilitating feelings of sexual arousal. These drugs are often taken in combination and are commonly associated with sexual sessions occurring over extended periods of time, sometimes involving significant numbers of sexual partners.

Where the police seek advice from the CPS on drugs offences committed by an alleged victim of rape and/or sexual assault a charging decision should be provided by a RASSO prosecutor. The public interest issue in such cases should be carefully considered.

Annex A: Tackling Rape Myths and Stereotypes

Rape

Rape is a devastating crime which can have a lasting impact on victims, their families and the wider community. It is committed primarily, although not exclusively, by men against women. It occurs in all communities regardless of background and socio-economic factors.

Rape remains one of the complex criminal offences we deal with, yet the crime of rape is commonly misunderstood. In reality:

  • In many cases, there will be no visible sign of injury.
  • Rape is most commonly perpetrated by someone known to the victim.
  • The body’s response to the trauma of rape can impair a victim’s ability to give a clear and coherent account of the event.
  • Some victims may return to the suspect after the event and/or contact them with friendly messages to reduce the risk of being raped again by the perpetrator, or because they want to block out the abuse in order to return to a sense of normality.

Prosecutors will need to challenge any assumption which attempts to predefine what rape is or where and when it occurs. The below tables provides a list of misconceptions and assumptions that may exist in RASSO cases, provides further information on their implications and how they may be addressed (note this is not an exhaustive list).

Perpetrators of rape

A suspect-centric approach needs to be adopted in the investigation and prosecution of rape. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. This can be difficult but the prosecutor needs to ask ‘how did the accused/defendant know s/he consented and continued to consent’?

There are several misconceptions related to perpetrators. It is important to note that in reality:

  • Only a perpetrator is responsible for rape and the law applies equally to all – irrespective of age, background or their future prospects.
  • There is no typical perpetrator – they can come from all backgrounds, all walks of life and can be in long term relationships.
  • Perpetrators may use a range of techniques to target, intimidate and coerce their victim.
  • Sexual violence can be perpetrated on people of a different sex, same sex or on people who do not identify with a particular sex regardless of their relationship history.
  • While the majority of perpetrators are male, sexual abuse is also perpetrated by females.

Prosecutors need to consider carefully the context of the allegation including whether there was any premeditation and planning. They also need to consider whether the suspect targeted or exploited the victim at a time when they were vulnerable. Remember that some perpetrators may seek to reframe events, even to themselves, to claim they were spontaneous and consensual.

Prosecutors will need to challenge any assumption which attempts to remove the responsibility of rape from a perpetrator.

Victims of rape

Someone consents to sexual intercourse, whether vaginal, anal or oral penetration, only if they agree by choice to that penetration and have the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, for example, vaginal but not anal sex or penetration with conditions such as wearing a condom. Consent may also have been given but later withdrawn, including during the sexual activity.

There are several misconceptions related to victims. It is important to note that:

General

  • Rape can have a devastating impact on a victim, their family, friends and the wider community.
  • A victim coming forward to report rape and support a prosecution is incredibly brave.
  • There is no typical person that is raped; people of all ages, sex, gender, races, sexualities, religion, background and appearance can be raped.
  • There is no typical response to rape. People react in a variety of ways.
  • Each occasion is specific and consent needs to be given for each occasion, and can always be given under certain conditions or withdrawn entirely including during an act which was initially consensual.
  • Consent is active and there is no requirement to articulate the absence of consent.

Victim Behaviour

  • Meeting people via dating apps and social media and sending sexual images is increasingly common. Consent cannot be implied from just the method of meeting or messages.
  • Consent cannot be implied from what might be interpreted as flirtatious behaviour or from the way a person is dressed or simply by the act of going back to someone’s house.
  • Consent cannot automatically be implied simply because the victim shows signs of sexual arousal or stimulation.

Intoxication

  • Just because a person is drunk or has taken drugs does not mean that they must be looking for, or willing to have, sex.
  • If someone is unable to give consent because they are drunk, drugged or unconscious, it is rape.
  • Just because someone is intoxicated at the time of the incident doesn’t mean their recollection of events is unreliable. Research conducted by Professor Heather Flowe and others has shown intoxication to impact upon the level of detail that can be recalled by the witness rather than on the accuracy of memory. It is therefore essential that in making casework decisions, prosecutors do not assume that a witness who was intoxicated at the time of the sexual assault is less reliable than a witness who was sober.

Victim Sexual History

  • Sex is not confined to people who are married / co-habiting / in long-term relationships etc..
  • People have a right to have consensual sex with however many people they want and whenever they like. This does not negate their right or ability to consent.
  • Consent cannot be implied by the number of people someone has slept with prior to, or after, an incident.
  • Consent for sex in the future cannot be implied just because people have had consensual sex in the past. Each occasion is specific and consent needs to be given for each occasion.

Victims’ Response to Rape

  • There is no typical response to rape – the traumatic nature of the offence means that victim can behave in a huge range of ways some of which might seem counter-intuitive.
  • A victim’s perception of threat influences their behaviour. They can legitimately be afraid of being killed or seriously injured so co-operate with the rapist to save their life. They may also fear for the safety of others including their family members. Consent and submission are different.
  • When under threat, the brain will implement instinctual survival responses that the victim will not necessarily have any control over. The response may not appear logical to others, or even the victim, but in the moment the brain might choose to react based on basic instincts: not just fight or flight, but flop, freeze or befriend.
  • Many people experience a form of shock during or after a rape that leaves them emotionally numb or flat - and apparently calm.
  • A person with a disability can become more symptomatic after trauma or during recall of trauma.
  • People can respond to any stimulation and display signs similar to sexual arousal – even those which are non-consensual / traumatic / painful. This can lead to huge amounts of shame, self-blame and guilt on the part of the victim. Focus on the definition of consent; ensuring that this is dealt with proactively and sensitivity together with a rounded assessment of the case.

Delayed Reporting

  • Many victims of rape do not report the attack to the police. The trauma of rape can cause feelings of shame and guilt which might inhibit a victim from making a complaint. The process of reporting rape itself can be traumatic, as well as prosecution process, and can deter victims from reporting the rape.
  • Some victims may tell a friend, GP or other individual. Many others will not tell anyone perhaps owing to feelings of shame, guilt and fear of the perpetrator and/or fear of being disbelieved.
  • A delayed allegation is not equivalent to a false allegation.
  • The time taken to make an allegation is not indicative of the level of upset.

Inconsistent Account

  • Inconsistencies in accounts can happen where a person is telling the truth or not.
  • Avoid an either/or argument that allows a complainant’s evidence to be wholly dismissed because of a peripheral inconsistency. Don’t pit it as either you believe the defendant OR you believe the complainant for this reason.
  • Rape can be very traumatic and memory can be affected in a number of ways. Understanding the effects of fear and the psychological mechanisms that may occur during a sexual assault is vital when considering recall and memory. Some, understandably, may try to avoid thinking about being raped or try to avoid recalling it all – this can impact upon recall.

Previous Allegations of Rape

  • Victims can face very difficult decisions when deciding to report rape and supporting a prosecution. Some may decide not to report, or withdraw support for an investigation or prosecution for a number of reasons including intimidation by the accused.
  • A decision to stop a case on evidential grounds does not mean that an allegation is false. It means that the case does not meet the evidential test required to put an allegation before a jury under the Code for Crown Prosecutors.
  • When a jury returns a not guilty verdict it means that they were not satisfied ‘beyond reasonable doubt’ that the offence was committed.

Victim’s Previous Convictions

  • Previous convictions or untruths do not automatically impact on the credibility of allegation – it is important to consider relevance and applicability. Only issues of relevance should be considered when dealing with specific allegations.
  • Where relevant, consider context of any previous convictions. For example, are they a result of previous victimisation (for example, child sexual abuse) or do they indicate a form of vulnerability?

Table outlining a range of misconceptions, their implications and how they may be addressed

MisconceptionImplicationsConsiderations to Address the misconceptionRelevant Caselaw / LinksRelevant direction(s)
1. Rape is always violent or involves physical force. (FALSE)
  • Ignores the reality of rape.
  • Disbelieves and invalidates the experience of the victim.
  • ·Disregards elements of power, control and humiliation in rape.
  • Rape doesn't always leave visible signs on the body or the genitals.
  • Challenge any implication that rape involves injury - consider calling a Forensic Medical Examiner as a live witness in appropriate cases.
  • Rapists may use manipulative techniques to intimidate and coerce their victims.
  • The victim may be legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their life.
  • Victims may become physically paralysed with terror or shock and are unable to move or fight.
  • Self-protection/defence can be through disassociation or freezing - any effort to prevent, stop or limit the event.

See section in chapter 15 of this prosecution guidance on Understanding vulnerabilities: Pre-existing mental ill health and potential psychological reactions to sexual abuse.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 12.
2. Rape most commonly occurs between strangers in dark alleys. (FALSE)
  • Assumes that home is always a safe place and that rape cannot happen between parties that know each other.
  • Implies that rape can be prevented by avoiding certain places and therefore blames the victim.
  • Challenge any implication that rapists only rape strangers. Most rapes are committed by persons known to the victim.
  • Date or acquaintance rape is common.
  • Most victims are raped in their homes, by their intimate partners.
Andreous [2014] EWCA Crim 2886. Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.no information
3. Prostitutes / sex workers cannot be raped. (FALSE)
  • Provides an excuse for sexual abuse.
  • Disempowers prostitutes / sex workers.
  • Assumes that prostitutes / sex workers consent to any and all sex under any circumstances, with anyone.
  • Rape can have a lasting and devastating impact on any victim.
  • Prostitutes / sex workers have the same rights under the law as anyone else: the transactions they negotiate with clients are for consensual activities, not rape.
  • Perpetrators often deliberately target individuals on the basis that they are less likely to be believed, which can include prostitutes/sex workers.
  • Consider the overall context of the allegation including the vulnerability of the victim and their freedom to choose. Consider also targeting and steps to obtain consent and reasonable belief that someone was consenting.
See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people – Individuals involved in prostitution.no information

4. You cannot be raped by your husband or partner. (FALSE)

5. The victim had previously consented to sex with the accused a number of times so s/he must have consented. (FALSE)

  • Disbelieves the victim and dismisses their experience;
  • Supports an ideology of male entitlement to sex and female subordination within intimate relationships and more widely.
  • A significant proportion of rape occurs within an intimate relationship, against a background of domestic abuse, involving power and control.
  • Under the law, everyone - irrespective of their relationship status - has a right to choose.
  • A person who has freely chosen to have sexual activity with another person in the past does not, as a result, give general consent to sexual intercourse with that person on any other occasion.
  • Consider the context of the overall allegation including what impact the relationship had on someone’s freedom to consent, and the presence of domestic abuse and in particularly controlling or coercive behaviour. Focus on steps taken to obtain consent and reasonable belief.

Consider whether the use of Section 41 YJCEA 1999 ‘the sexual history of complainants’ might be helpful here. See prosecution guidance chapter 12: The Sexual History of complainants, Section 41 YJCEA 1999 for further information.

See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people – Sexual abuse in a domestic setting and, if relevant, Teenagers in abusive relationships, which provides further information about particular pressures faced in this context.

Section 142 CJPOA 1994 - Rape redefined to include non-consensual anal intercourse with a male or female as of 3 November 1994

R v R [1992] AC 599 held that a marital rape exemption did not exist in English law.

In R v S [2010] EWCA Crim 1579 the trial judge did not permit cross examination about a previous act of sexual intercourse said to have taken place between the parties a few days prior to an incident of a violent rape committed upon a wife by her husband.

There are circumstances where a jury will require assistance with the distinction between reluctant but free exercise of choice, especially, but not exclusively, in the context of a long-term loving relationship, and unwilling submission due to fear of worse circumstances. A direction along the lines of Pill J approved in Mohammed Zafar Unreported, June 18, 1993 ‘C may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner i[t i]s still consent.’

CA & Watson [2015] EWCA Crim 559: Context is critical. Submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Examples 10 and 11.
6. If your culture condones, or is perceived to condone, marital rape, underage “sex”, or forced marriage, then you should not be upset about it/it does not matter as much/it’s more of a grey area. (FALSE)
  • Condones rape due to cultural reasons.
  • Creates further barriers to accessing support and justice.
  • Under the law, everyone - irrespective of their background - has a right to choose.
  • Racial and religious stereotypes can play out in different ways in rape cases.
  • Identify and challenge any racial or religious justification for rape with reference to the law.

There are circumstances where a jury will require assistance with the distinction between reluctant but free exercise of choice, especially, but not exclusively, in the context of a long-term relationship, and unwilling submission due to fear of worse circumstances. A direction along the lines of Pill J approved in Mohammed Zafar Unreported, June 18, 1993 - ‘C may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner i[t i]s still consent.’

CA & Watson [2015] EWCA Crim 559: Context is critical. Submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence.

See section in this prosecution guidance chapter 15: Issues relevant to particular groups of people: Minority Ethnic Communities, Sexual abuse within a domestic setting and, if relevant, Teenagers in abusive relationships.

no information
7. Sexual abuse at the hands of a perpetrator which took place when the victim was a child has no bearing on the issue of consent if the same parties go onto engage in sexual activity as adults. (FALSE)
  • Context, background and history are irrelevant factors when considering consent.
  • Disregards elements of power, aggression, violence, control, entitlement and humiliation in rape.
  • Context is important.
  • If sexual abuse took place at the hands of the same perpetrator when the victim was a child this has the potential to be directly relevant to the issue of consent.
  • In cases involving the alleged grooming of vulnerable complainants apparent consent to sexual activity may not amount to consent in law.
  • The 2003 Act identified three categories of offences against children of different age: offences against those under 13, under 16 and under 18.
  • Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”.
  • Consider guidance in relation to Consent contained in this prosecution guidance.

R v C (2012) held that once the jury were satisfied that sexual activity of the type C alleged occurred when C was a child, and that it impacted on and reflected his dominance and control over her, it was open to the jury to conclude that the evidence of apparent consent when she was no longer a child was indeed apparent and not real, and that D was well aware that in reality she was not consenting.

Ali and Ashraf [2015] EWCA Crim 1279 held that submission achieved by high level psychological coercion in the context of any pre-existing relationship between the defendant and the complainant may not amount to free agreement.

See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Victims of child sexual abuse and exploitation.

The Crown Court Compendium endorses the comprehensive direction on the difference between consent and compliance or submission that was given in Ali and Ashraf [2015] EWCA Crim 1279
8. Rape is only a crime of passion. (FALSE)
  • Romanticises rape and implies that rape is the same as sex.
  • Assumes that rape is impulsive, unplanned and about uncontrollable ‘passion’.
  • Assumes men to be incapable of delaying gratification or controlling sexual urges.
  • Some rapes are premeditated and planned.
  • Men are capable of controlling sexual urges and refraining from raping women and other men. An assertion contrary to this is sexist.
  • Some rapists may reframe events, even to themselves, to claim they were spontaneous and consensual and others may claim the complainant ‘knew the rules’, ‘they were equal’ (despite any inequalities) or they ‘both got carried away’.
New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.no information
9. When it comes to sex, men have a point of no return. (FALSE)
  • Disregards elements of power, aggression, violence, control and/or humiliation in rape.
  • Deprives a victim’s right to choose.
  • Attempts to remove the responsibility for the rape from the rapist.
  • Consent is an ongoing act and can be subject to certain conditions.
  • In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Therefore, withdrawal of consent at any point before or during the act is perfectly possible and is the right of any individual to exercise at entirely their own discretion.
  • In reference to the law on consent consider what consent was given for. E.g. consent to vaginal, not oral or anal sex; consent only with a condom; consent conditional upon withdrawal before ejaculation.

New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.

Assange v Swedish Judicial Authority (2011) consent conditional on the use of a condom: It would plainly be open to a jury to hold that if (C) had made clear that she would only consent to sexual intercourse if (D) used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom.

R (F) v DPP (2013) consent conditional on withdrawal before ejaculation: She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 11.

10. Perpetrators should not be convicted as the consequences of a conviction can ruin someone’s life/they have good character.  

 

This misconception can particularly apply to young adult men ‘as they have their whole lives ahead of them’ (FALSE)

  • Assumes that law does not apply equally to all.
  • Implies that the implications for the offender are more important than the impact of rape on the victim as well as wider justice and safety considerations.
  • Implies that young adult men are less able to understand consent.
  • Rape can have a lasting and devastating impact on victims irrespective of the age of the perpetrator.
  • Young offenders can be just as dangerous as older offenders and can be serial offenders.
  • Prosecutions will always proceed where there is sufficient evidence and it is in the public interest.
  • Challenge any assumption that attempts to remove the responsibility from an adult rapist due to their age / future prospects.
Andreous [2014] EWCA Crim 2886. Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.no information
11. He was satisfying demands for BDSM / choking / aggressive sex. This cannot be not rape. (FALSE)
  • Assumes consenting to BDSM is consenting to any type of violence, abuse or rape.
  • BDSM can be explored between two consenting adults following discussion about safety and harm;
  • Consent is an ongoing act and even within BDSM can be subject to certain conditions;
  • Consider any discussion prior to the incident related to exploration of BDSM in general as well as: safety, risk, harm, the use of safe words, limits which someone might want to explore cautiously and activities which someone never wants to try.
  • In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Therefore withdrawal of consent at any point before or during the act is perfectly possible and is the right of any individual to exercise at entirely their own discretion.
  • Consider carefully the context of the allegation and any role which alcohol or drugs might have on freedom and capacity to consent as well as steps taken to obtain consent and reasonable belief that someone was consenting.

R (F) v DPP (2013) She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated.

Kaitamaki (1985) Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.

R v Olugboja (1982) held that the jury should be directed that consent, or the absence of it, is to be given its ordinary everyday meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves submission, but it by no means follows that a mere submission involves consent.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 11.
12. Only gay men rape other men / only gay men get raped. (FALSE)
  • Reinforces homophobic fears and prejudices.
  • Creates the illusion of safety for straight men.
  • Results in under-reporting of rapes on men.
  • People of all sexual orientations get raped.
  • Men who rape other men might be heterosexual - they may have a relationship with a woman.
  • Rapists rape as part of their violence and need for power, dominance and control.
  • Consider the overall context of an allegation when assessing someone’s freedom and capacity to choose, as well as, steps taken to obtain that consent and reasonable belief in consent.
See the CPS’s same-sex sexual violence toolkit for further advice.Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 10.
13. The victim provoked rape and implied consent simply by their dress / flirtatious behaviour. (FALSE)
  • Stigmatises and blames the victim.
  • Assumes that if someone draws attention to themselves, they are seeking sex, consenting to sex or ‘deserve to be raped’.
  • Asserts that women cannot dress / behave how they want - that it’s for others rather than their own preferences.
  • Attempts to remove responsibility from the rapist by taking away their agency - that they are so provoked by clothing or behaviour they cannot help themselves.
  • Challenge any implication that the victim provoked rape or automatically consenting to sex by their dress or behaviour.
  • Consent cannot be implied from the way a person dresses or flirtatious behaviour.
  • Women can be raped regardless of what they are wearing - this is just an excuse.
  • It would not be reasonable to believe that a person would consent to sex simply because of the way they are dressed.
Consider whether the use of section 41 YJCEA 1999 ‘the sexual history of complainants’ in this prosecution guidance might be helpful here.Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 8.
14. If you send sexual images or messages prior to meeting someone, then having sex is inevitable. (FALSE)
  • Attempts to excuse rape and blame the victim.
  • Assumes that if someone sends a sexual image of themselves, they are seeking sex or ‘deserve to be raped’.
  • Assumes sending of a message or messages automatically means physical sex is wanted any time, under any conditions.
  • Assumes that someone cannot change their mind, even if they had initially been interested in sexual activity.
  • Consent to sexual activity cannot be implied from flirtatious behaviour or from the sending of a sexual image or message.
  • Challenge any implication that sexual images or messages equate to consent, explaining how normalised they are these days.
  • Consider steps taken to obtain consent.

Section 41 YJCEA 1999 ‘the sexual history of complainants’ restricts scope for reference to certain evidence at court, including:

  • sexual activity with the defendant or another;
  • engaging in sexually-charged messaging on Facebook as in R v D [2011] EWCA Crim 2305;
  • completion of sexual quizzes on the internet (R v Ben-Rajab and Baccar [2012] 1 Cr App R 4) where the Court of Appeal took the view that the expression is wide enough to embrace the activity of viewing pornography or engaging in sexually-charged messaging over a live internet connection and included answering questions in a sexually explicit quiz.

See chapter 12 The Sexual History of complainants, Section 41 YJCEA 1999 in this prosecution guidance for further information

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 11.
15. If you voluntarily attend someone’s house after a date or night out, you obviously want sex and consented to it by going there. (FALSE)
  • Assumes that if a person goes to someone’s house after a date or night out, they are looking for sex or deserve to be raped.
  • Assumes that rape is impulsive and unplanned.
  • Assumes that someone cannot change their mind, even if they had initially been interested in sexual activity.
  • Consent to sexual activity cannot be implied simply by the act of someone going back to a someone’s house.
  • Each occasion is specific and consent needs to be given for each occasion, and can always be given under certain conditions or withdrawn entirely.
  • Consent can be withdrawn at any time.
  • Humans have to understand and negotiate consent regularly in their day to day lives.  
  • Many rapes are premeditated and planned.
  • Consent is an ongoing act and can be subject to certain conditions.
  • Challenge any implication that going back to someone’s house equates to consent.
  • Consider steps taken to obtain consent. 
no informationCrown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 11.
16. If you drink alcohol or use drugs then you have made yourself vulnerable to being raped and you bear the responsibility. (FALSE)
  • Disregards the law on consent, including capacity to consent and reasonable belief that someone was consenting.
  • Assumes that being under the influence of alcohol / drugs means that someone is looking for, or willing to have, sex.
  • Assumes that if someone is looking for sex, they therefore consent to anything that happens or are deserving of anything that happens.
  • Section 74 SOA 2003 - “For the purposes of this part, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice”.
  • Victims of rape are never responsible, wholly or in part, for their rape or sexual assault, regardless of whether they have drunk alcohol, taken drugs, are asleep or otherwise incapacitated.
  • Consider carefully the role which alcohol or drugs might have on freedom and capacity to consent as well as steps taken to obtain consent and reasonable belief that someone was consenting.
  • Some people drink alcohol and some people take drugs. This does not provide a justification or reason for someone to rape or be raped.
  • Just because a person is drunk or has taken drugs does not mean that they must be looking for, or willing to have, sex. (from Crown Court Compendium)
  • It would also be wrong to leap to the conclusion that someone else who sees and interacts with that person could reasonably believe that person would consent to sex. (from Crown Court Compendium)
  • If someone is unable to give consent because they are drunk, drugged or unconscious, it is rape.
  • Intoxicated victims are often specifically targeted due to their vulnerable state. Consider steps taken to obtain consent.
  •  Just because someone is intoxicated at the time of the incident doesn’t mean their recollection of events is unreliable. Research conducted by Prof Heather Flowe and others has shown intoxication to impact upon the level of detail that can be recalled by the witness rather than on the accuracy of memory. It is therefore essential that in making casework decisions, prosecutors do not assume that a witness who was intoxicated at the time of the sexual assault is less reliable than a witness who was sober.    

R v Bree [2007] EWVA Crim 804 held that drunken consent is still consent, but that capacity to consent may well evaporate well before a complainant becomes unconscious.

R v Hysa [2007] EWCA Crim 2056 Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine.

The jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether or not he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.

Tambedou [2014] EWCA Crim 954: The complainant’s evidence that she could not remember on account of voluntary intoxication was not sufficient for the judge to remove the case from the jury.

See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Victims who have potentially committed drug offences’.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 9.
17. If you meet men online or through hook-up apps you are consenting to sex and should be ready to offer sex. (FALSE)
  • Assumes that if someone goes on dating / hook-up apps or websites then they are looking for sex or deserve to be raped.
  • Online dating, apps etc., are increasingly being used to meet people.
  • Consent to sexual activity cannot be implied from the method of meeting.
  • Consent can be withdrawn at any time
  • Consensual sexual interaction online does not automatically imply consent to offline sexual interaction
  • Challenge any implication that online dating / apps etc., equate to consent

Consider use of Section 41 YJCEA 1999 ‘the sexual history of complainants’. See chapter 12 : The Sexual History of complainants, Section 41 YJCEA 1999 in this prosecution guidance.

In Harrison [2006] EWCA Crim 1543 the trial judge concluded that questioning about the complainant having sex with a third party three hours prior to the rape was irrelevant to issue of consent and the evidence was thus prohibited by section 41 YJCEA 1999

no information

18. If you have lots of sex, including with different people, then you are promiscuous and ‘deserve what you get’ and are not harmed by rape. (FALSE)

19. If someone has truly been raped then they would never seek, or want, sex soon afterwards. (FALSE)

  • Assumes that if someone has multiple partners then they are looking for sex with anyone, deserve to be raped, or are less impacted by rape.
  • Assumes that victims of rape behave in a certain way.
  • Rape can have a lasting and devastating impact on victims irrespective of their sexual history.
  • Challenge any implication that having sex with multiple partners negates someone’s right to consent.
  • Challenge any implication that having sex after being raped negates someone’s right to consent.
  • Challenge any assumption that all victims behave the same way either prior to or following rape, and make clear that trauma affects individuals in a huge range of ways, sometimes causing victims to behave in counter-intuitive ways.
  • Sex is not confined to people who are married / co-habiting / in long term relationships etc.,
  • People have a right to have consensual sex with however many people and whenever they like.
  • Consent cannot be implied by the number of people someone has slept with prior to, or after, an incident.
  • Just because someone has consented to sexual intercourse on one occasion it does not provide grounds for reasonably believing that they consented to sexual intercourse on other occasions - either with the same or different people. Each occasion is specific and consent needs to be given for each occasion, and can always be given under certain conditions or withdrawn entirely.

Section 41 YJCEA 1999 ‘the sexual history of complainants’ restricts scope for reference to such evidence at court. See chapter 12: The Sexual History of complainants, Section 41 YJCEA 1999 in this prosecution guidance.

In Harrison [2006] EWCA Crim 1543 the trial judge concluded that questioning about the complainant having sex with a third party three hours prior to the rape was irrelevant to issue of consent and the evidence was thus prohibited by Section 41 YJCEA 1999.

In R v S [2010] EWCA Crim 1579 the trial judge did not permit cross examination about a previous act of sexual intercourse said to have taken place between the parties a few days prior to an incident of a violent rape committed upon a wife by her husband.

If relevant - see section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Sexual abuse within a domestic setting and Teenagers in abusive relationships.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 10.

20. You can tell if someone has 'really' been raped by how they act afterwards. (FALSE)

21.Real rape victims are always visibly distressed when describing what happened to them. (FALSE)

22. A real rape victim would never freeze when attacked, they would fight back. (FALSE)

23. A real victim of rape would never be able to carry on with their normal life – go to work, take children to school etc.

24. If the victim didn't scream, fight, or get injured then it could not have been rape. (FALSE)

  • Disbelieves and re-traumatises the victim.
  • Invalidates the victim’s experience and individuality.
  • Assumes all victims behave in the same way/in a pre-determined way, during or following rape.
  • Discourages the victim from seeking help.
  • Reactions to rape are highly varied and individual.
  • Victims in a rape situations often become physically paralysed with terror or shock and are unable to move, resist or fight.
  • Many women experience a form of shock during or after a rape that leaves them emotionally numb or flat - and apparently calm.
  • Rape doesn't always leave visible signs on the body or the genitals.
  • Consider the overall context of an allegation including addressing any seemingly counter-intuitive behaviour displayed by the victim.
  • Focus on steps to obtain consent and reasonable belief.
  • Carefully assess appropriate digital material - considering highlighting relevant evidence which supports the allegations and countering relevant evidence which points away from the allegation.
  • Victims in rape situations are often legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their lives.
  • Rapists use many manipulative techniques to intimidate and coerce their victims.
  • When under threat, the brain will implement instinctual survival response that the victim will not necessarily have any control over. The response may not appear logical to others, or even the victim, but in the moment the brain would choose based on basic instincts: not just fight or flight, but flop, freeze or to befriend the attacker.

Malone [1998] 2 Cr App R 447. No requirement that absence of consent has to be demonstrated or communicated to the accused.

See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Pre-existing mental ill health and potential psychological reactions to sexual abuse.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Examples 6, 7 and 12.
25. If the victim didn’t complain to the police immediately it can't have been rape. (FALSE)
  • Disbelieves and re-traumatises the victim.
  • Discourages him or her from seeking help.
  • Assumes all victims behave in a uniform, pre-determined way.
  • Ignores known trauma responses.
  • Consider the overall context of an allegation when including reasons behind a delay.
  • Most victims of rape do not report the attack to the police. Some may tell a friend, GP or other individual. Many others will not tell anyone perhaps owing to feelings of shame, guilt and fear of the perpetrator and/or fear of being disbelieved.
  • A delayed allegation is not equivalent to a false allegation.
  • The time taken to make an allegation is not indicative of the level of upset.
  • The trauma of rape can cause feelings of shame and guilt which might inhibit a victim from making a complaint.
  • The process of reporting rape itself can be traumatic, as well as prosecution process, and can deter victims from reporting the rape.
  • When under threat, the brain will implement instinctual survival response that the victim will not necessarily have any control over. The response may not appear logical to others, or even the victim, but in the moment the brain would choose based on basic instincts: not just fight or flight, but flop, freeze or friend.

R v Doody [2008]: The defendant appealed against convictions for rape and sexual assault, criticising the judge’s comments to the jury about the credibility of a rape complainant delaying making a complaint. The prosecution said that the judge’s comments were justified.
Held: The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning, but any such comment must be uncontroversial. If not, the court must hear evidence. In this case the judge had overstepped the mark, but on the facts the convictions were not unsafe.

See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Pre-existing mental ill health and potential psychological reactions to sexual abuse’.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 2.
26. If you don’t say ‘no’, it’s not rape. (FALSE)
  • Disregards elements of power, aggression, violence, control and humiliation in rape.
  • Goes against the legal definition of consent.
  • Section 74 SOA 2003 - “For the purposes of this part, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice”.
  • Challenge any implication that absence of consent has to be demonstrated - consent must be actively given.
  • Experience has shown that different people respond to unwanted sexually activity in different ways.
  • Victims in rape situations can be legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their lives.
  • Consent and submission are different.
  • Rapists use many manipulative techniques to intimidate and coerce their victims.
  • Victims in rape situations often become physically paralysed with terror or shock and are unable to move or fight.
  • When under threat, the brain will implement instinctual survival response that the victim will not necessarily have any control over. The response may not appear logical to others, or even the victim, but in the moment the brain would choose based on basic instincts: not just fight or flight, but flop, freeze or friend.
  • Was there any evidence of coercion or control?

Malone [1998] 2 Cr App R 447. No requirement that absence of consent has to be demonstrated or communicated to the accused.

R v Olugboja (1982) held that the jury should be directed that consent, or the absence of it, is to be given its ordinary everyday meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves submission, but it by no means follows that a mere submission involves consent.

See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Pre-existing mental ill health and potential psychological reactions to sexual abuse.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 12.

27. Only young/ attractive people get raped. (FALSE)

28. Strong / independent / powerful / older people don’t get raped. (FALSE)

  • Assumes that only young or 'attractive' people are raped.
  • Disregards elements of power, aggression, violence, control and humiliation in rape.
  • There is no typical victim of rape. People of all ages, appearance, status and backgrounds can be raped.
  • Challenge any assertion that typifies who rapes and who is subjected to rape.
Andreous [2014] EWCA Crim 2886. Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 1.
29. The victim’s race / religion / background is responsible for the rape. (FALSE)

Condones rape due for racial / religious / cultural reasons.

Creates further barriers to accessing support and justice.

Can deploy racial and religious prejudices and stereotypes to blame the victim and disregard the facts of the case.

  • There is no typical victim of rape.
  • People of all races and religious backgrounds can be raped.
  • Challenge any racial or religious stereotypes and focus on the facts of the allegation.
  • Identify and challenge any racial or religious justification for rape with reference to the law.
  • Racial and religious stereotypes may play out in rape cases in a number of ways. For example:
    • ‘South East Asian women are more submissive and docile’
    • ‘African or black people are more aggressive or have “unconstrained” libido.’
    • ‘Middle Eastern/Arab/Muslim women are oppressed’
    • ‘White girls are more sexually promiscuous’
    • Latina/South American women can be fetishised for their ethnic identity/sexuality.

Andreous [2014] EWCA Crim 2886. Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.

There are circumstances where a jury will require assistance with the distinction between reluctant but free exercise of choice, especially, but not exclusively, in the context of a long-term loving relationship, and unwilling submission due to fear of worse circumstances. A direction along the lines of Pill J approved in Mohammed Zafar Unreported, June 18, 1993 - ‘C may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner i[t i]s still consent.’

CA & Watson [2015] EWCA Crim 559: Context is critical. Submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence.

See section in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Minoritised Ethnic Communities’.

Crown Court Compendium - Example 1

30. A real victim would always be able to provide a clear and coherent account of being raped. (FALSE)

31. Inconsistencies in accounts provided by a victim always means they lack credibility as a witness. (FALSE)

32. Where a victim has consumed alcohol or drugs prior to an incident s/he will always be an unreliable witness as their evidence won’t be accurate. (FALSE)

  • Reinforces stereotypes of women as untruthful.
  • Disregards the impact that trauma has on memory.
  • Assumes that human beings have perfect memory recall.
  • Discourages him or her from seeking help.
  • Intoxicated victims are inherently unreliable witnesses.
  • Disbelieves and re-traumatises the victim.
  • Discourages victims from seeking help.
  • Rape can be very traumatic and memory can be affected in a number of ways.
  • Understanding the effects of fear and the psychological mechanisms that may occur during a sexual assault is vital when considering recall and memory.
  • Some, understandably, may try to avoid thinking about being raped or try to avoid recalling it all - this can impact upon recall.
  • Research conducted by Dr Heather Flowe and others has shown intoxication to impact upon the level of detail that can be recalled by the witness rather than on the accuracy of memory. It is therefore essential that in making casework decisions, prosecutors do not assume that a witness who was intoxicated at the time of the sexual assault is less reliable than a witness who was sober.
  • Reasons behind any inconsistencies should be addressed as part of an overall case strategy.

See section in chapter 15 of this prosecution guidance on ‘Understanding vulnerabilities: Pre-existing mental ill health and potential psychological reactions to sexual abuse’. 

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 4.

33. False allegations are common and women1 always cry rape when they regret having sex or want to seek revenge. (FALSE)

34. Other complaints of rape which have not resulted in successful prosecution outcomes always mean the victim lacks all credibility as a witness. (FALSE)

  • Reinforces stereotypes of the 'vindictive woman'.
  • Reinforces stereotypes of women as untruthful.
  • Re-victimises and stigmatises the victim.
  • Undermines her support for seeking justice / access to courts.
  • A decision to stop a case on evidential grounds does not mean that an allegation is false. It means that the case does not meet the evidential standard required to put an allegation before a jury under the Code for Crown Prosecutors.
  • When a jury returns a not guilty verdict it means that they were not satisfied ‘beyond reasonable doubt’ that the offence was committed.
  • Avoid an either/or argument that allows a complainant’s evidence to be wholly dismissed because of a peripheral inconsistency. Don’t pit it as either you believe the defendant OR you believe the complainant for this reason.

Prosecutors should have regard to the case of Hurley [2025] EWCA Crim 642, which was determined by the Court of Appeal. The Court rejected the argument that multiple allegations imply falsity, emphasising the complainant’s troubled life and vulnerability to sexual predators.

The Court of Appeal has made it clear that whilst every case is fact specific for previous allegations made by complainants to be admitted as bad character evidence there must be a proper evidential basis to allege that the complaint was false. Relevant cases include:  

R v AM [2009] EWCA Crim 618

R v Knight [2013] EWCA Crim 2486  

R v All-Hilly [2014] 2 Cr. App. R. 33

R v Conn [2018] EWCA Crim 1751.

R v Gabbai [2019] EWCA Crim 2287

R v Hurley [2025] EWCA Crim 642

In most cases where the defence want to ask a complainant about an alleged false allegation, in addition to seeking a ruling that section 41 YJCEA 1999 does not apply, the defence will be required to make a ‘bad character’ application under Section 100 of the Criminal Justice Act 2003

Section 41 YJCEA 1999, see chapter 12: The Sexual History of complainants, Section 41 YJCEA 1999, in this prosecution guidance.

See prosecution guidance on charging perverting the course of justice on allegedly false rape and/or domestic abuse allegations.

Crown Court Compendium - Example 4

35. Previous withdrawals of complaints, or previous reluctance to co-operate with a prosecution, always means the victim lacks credibility as a witness. (FALSE)

36. Where the victim has previous convictions s/he always lacks credibility as a witness as a result. (FALSE)

37. The victim has previously convictions or had told untruths about other matters and so can never be relied upon to tell the truth about rape. (FALSE)

  • Reinforces stereotypes of the 'vindictive woman'.
  • Reinforces stereotypes of women as untruthful.
  • Re-victimises and stigmatises the victim.
  • Undermines her support for seeking justice.
  • Victims can face very difficult decisions when deciding to report rape and supporting a prosecution. Some may decide not to report, or withdraw support for an investigation or prosecution for a number of reasons including intimidation by the accused.
  • Victims come from all walks of life. Previous convictions or untruths do not automatically impact on the credibility of allegation - it is important to consider relevance and applicability.
  • ·Perpetrators often deliberately target individuals who are less likely to be believed.
  • Only issues of relevance should be considered when dealing with specific allegations.
  • Where relevant, consider context of any previous convictions. For examples, are they a result of previous victimisation (for example, child sexual abuse) or do they indicate a form of vulnerability.

R v All-Hilly [2014] 2 Cr App R 33 found that the fact the complainant had made but did not pursue previous allegations did not provide a sound basis for suggesting they were false.

Section 41 YJCEA 1999, see chapter 12: The Sexual History of complainants, Section 41 YJCEA 1999, in this prosecution guidance.

Consider bad character provisions as per section 100 of the Criminal Justice Act 2003.

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38. Where the victim has a learning disability or mental health condition s/he always lacks credibility as a witness. (FALSE)
  • Disbelieves and re-traumatises the victim.
  • Disregards elements of power, aggression, violence, control and humiliation in rape.
  • Ability or disability can be impaired by trauma. A person with a disability can become more symptomatic after trauma or during recall of trauma.
  • Perpetrators often deliberately target individuals that are vulnerable due to mental or physical health disabilities.
  • Because disclosure of medical records will engage the Article 8 right to privacy of the victim it is crucial that the police obtain the victim’s informed consent to:
    • a) gain access to the records; and
    • b) enable disclosure, where appropriate, to take place.
  • Prosecutors must satisfy themselves that consent to disclose the medical records has been obtained by the police from the person to whom the notes refer before any disclosure of material takes place.
  • When obtaining consent, the victim should be informed by the police why the request is being made and what might happen to the record. The victim or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences for the case outcome.
  • Sexual Offences Act 2003: Sections 30 - 41 protect persons with a mental disorder who are vulnerable to sexual exploitation and creates three categories of offence:
  • Sections 30 - 33 Offences against a persons with a mental disorder impeding choice
  • Sections 34 - 37 offences where there are inducements etc. to a person with a mental disorder
  • Section 38 - 41 Offences by care workers against persons with a mental disorder

R v Alibhai, [2004] EWCA Crim 681. The Court of Appeal held that before taking steps to obtain material held by third parties, 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. The case goes on to say 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.

Branney v HM Advocate [2014] HCJAC 78. A Scottish case where court stated “we are unaware of any automatic association between depression and lack of credibility”

For further information on disclosure refer to chapter 4 Reasonable Lines of Enquiry in RASSO Cases in this prosecution guidance.

See sections in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: People with disabilities, and Pre-existing mental ill health and potential psychological reactions to sexual abuse.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

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39. If someone displayed signs of sexual arousal during abuse, the only conclusion is that they wanted and/or enjoyed it (FALSE)
  • Disbelieves the victim.
  • Disregards how bodies and brains can work.
  • Victims themselves might believe this misconception and can feel a huge amount of shame and guilt.
  • People can respond to any stimulation - even those which are non-consensual / traumatic / painful.
  • Focus on the definition around consent; ensure that this is dealt with proactively and sensitively with the victim; and ensure a rounded assessment of the case including careful consideration of the actions and behaviour of the accused / suspect.
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40. Gay men who attend sex parties and/or take drugs are asking to be raped. (FALSE)
  • Assumes gay men are promiscuous and are attracted to all men.
  • Assumes that sex is not romantically significant to gay men - it is all something they regularly engage in on a casual basis.
  • Assumes gay men do not have long-term loving relationships - for gay men it is all about sex.
  • Assumes gay men always have penetrative sex.
  • Assumes men cannot be victims of sexual offences.
  • Assumes men who have sex with men are gay.
  • Denies any incidence of coercive control ie if man was coerced to attend/participate.
  • Challenge any homophobic implications and focus on the facts of the allegation.
  • ·Forming assumptions about gay men’s propensities to have multiple relationships or their sexual preferences is homophobic.
  • ·Gay men can face multiple barriers to seeking support and accessing justice.
  • ·Not just gay men attend chem sex parties (i.e. bisexual men, or ‘men who have sex with men’ who wouldn’t define themselves as gay or bi.
  • A gay man may well be promiscuous and be in a loving relationship.
  • Gay men have the same right as everyone to remove consent at any time.
  • There will be nuance in each situation that needs to be explored, including any power and control elements to attending a sex party - was there any underlying coercion.

See sections in this prosecution guidance: chapter 15: Issues relevant to particular groups of people: Same-sex sexual violence and Victims who have potentially committed drug offences’.

See the CPS’s Same-Sex Violence Toolkit.

Crown Court Compendium Part 1 - Oct 25 (Mar 26 update) - Section 20-1, Example 14.

Useful Links

Annex B: Statutory Limitations on prosecution of offences committed abroad - Table of Legislation

Introduction

Prior to 1 October 1996, there were no powers to try acts that occurred outside of the United Kingdom.

Tables of legislation post 1 October 1996

Section 1 and section 2 of the Sexual Offences (Conspiracy and Incitement) Act 1996

Date in forceTo whom it appliesOffences to which it appliesDate repealed
1 October 1996Complainants under 16 years

Sexual Offences Act 1956

  • section 1 (rape, complainant must be aged under 16)
  • section 5 (intercourse with girl under the age of thirteen)
  • section 6 (intercourse with girl under the age of sixteen)
  • section 12 (buggery, complainant must have been under 16)
  • section 14 (indecent assault on a girl, complainant must have been under 16), and
  • section 15 (indecent assault on a boy, complainant must have been under 16),

Indecency with Children Act 1960

  • section 1 (indecent conduct towards young child).

From 1 May 2004 section 2 only

Sexual Offences Act 2003

  • sections 1 to 12, 14 and 15 to 26 (complainant must be aged under 16)

Section 1 repealed on 4 September 1998

Section 2 still in force

Section 7 of the Sex Offenders Act 1997

Date in forceTo whom it appliesOffences to which it appliesDate repealed
1 September 1997Complainants under 16 years

Sexual Offences Act 1956

  • section 1 (rape complainant must be aged under 16)
  • section 5 (intercourse with girl under 13)
  • section 6 (intercourse with girl between 13 and 16)
  • section 12 (buggery, complainant must be aged under 16)
  • section 14 (indecent assault on a girl, complainant must be aged under 16)
  • section 15 (indecent assault on a boy, complainant must be aged under 16)
  • section 16 (assault with intent to commit buggery, complainant must be aged under 16)

Indecency with Children Act 1960

  • section 1 (indecent conduct towards young child)

Protection of Children Act 1978

  • section 1 (indecent photographs of children)
Repealed on 1 May 2004

Section 72 Sexual Offences Act 2003

Date in forceTo whom it appliesOffences to which it appliesDate repealed
1 May 2004Complainants under 16 years

Sexual Offences Act 2003

  • an offence under any of sections 5 to 15 (offences against children under 13 or under 16)
  • an offence under any of sections 1 to 4, 16 to 41, 47 to 50 and 61 where the victim of the offence was under 16 at the time of the offence
  • an offence under section 62 or 63 where the intended offence was an offence against a person under 16

The Protection of Children Act 1978

  • section 1 (indecent photographs of children)

The Criminal Justice Act 1988

  • section 160 possession of indecent photograph of child, in relation to a photograph or pseudo-photograph showing a child under 16
Amended section still in force

Section 72 Sexual Offences Act 2003 (as amended by the Criminal Justice and Immigration Act 2008)

Date in forceTo whom it appliesOffences to which it appliesDate repealed
14 July 2008Complainants under 16 years

Sexual Offences Act 2003

  • an offence under any of sections 5 to 19, 25 and 26 and 47 to 50
  • an offence under any of sections 1 to 4, 30 to 41 and 61 where the victim of the offence was under 18 at the time of the offence
  • an offence under section 62 or 63 where the intended offence was an offence against a person under 18

The Protection of Children Act 1978

  • section 1 (indecent photographs of children)

The Criminal Justice Act 1988

  • section 160 possession of indecent photograph of child, in relation to a photograph or pseudo-photograph showing a child under 16
Amended section still in force

Section 72 Sexual Offences Act 2003 (as amended by the Domestic Abuse Act 2021)

Date in forceTo whom it appliesOffences to which it appliesDate repealed
29 June 2021Victims over 18 years

Sexual Offences Act 2003

  • section 1 (rape)
  • section 2 (assault by penetration)
  • section 3 (sexual assault)
  • section 4 (Causing a person to engage in sexual activity without consent)
In force