How we make a decision on what to do in your case - Rape and Serious Sexual Assault
Once the police consider that they have enough evidence they will pass the case to the CPS. We will review the evidence and consider whether we can bring a prosecution.
If the police don’t think they have enough evidence they won’t pass the case to us and no further action will be taken against the suspect.
If that happens your police contact will explain why, what support is available to help you and whether there are any other steps they can take against the suspect. If the police decide not to send your case to us, you can ask the police to review that decision - this is called a Victim’s Right to Review. Your police contact can let you know how to do this.
This section explains what happens when the police send the case to us including how we make our decision on what to do in each case, what will happen next if we decide to charge a suspect and what your rights are if we decide not to charge them.
The file that the police send to us will contain a range of evidence. This could include things like:
- A recording of your interview(s) with the police
- Your victim personal statement – if you’ve provided one
- Statements from any other witnesses or video recordings of interviews with them
- Any account the suspect provided during their police interview
- CCTV evidence
- Medical evidence
- Digital evidence gathered from smartphones, tablets or computer downloads
When we review the evidence in cases of rape or serious sexual assault we focus on the behaviour and actions of the suspect. This is sometimes called the ‘suspect-centric’ or ‘offender-centric’ approach.
The police file will also contain a list of all the relevant material they’ve gathered as part of their investigation that doesn’t form part of their evidence against the suspect. The police will tell the CPS prosecutor if any of this material could undermine the case or help the defence case if the case went to trial.
Video: Senior Crown Prosecutor Nikki explains how the CPS reviews cases at different stages
This section includes a detailed breakdown on offences that a suspect can be charged with. Some people may find this section distressing to read. Support services for victims are listed in the ‘What support is available to help you’ section.
There are three main criminal offences which cover the crimes of rape and serious sexual assault. These are set out in the Sexual Offences Act 2003 which came into effect on 1 May 2004.
The legal definitions of these offences are:
- Rape. This is penetration with a penis of the vagina, anus or mouth of another person without their consent and without reasonably believing that they consented.
- Sexual Assault by Penetration. This is penetration of another person’s vagina or anus with any part of the body other than the penis, or with any object, without their consent and without reasonably believing that they consented.
- Sexual Assault. This is the intentional sexual touching of another person without their consent and without reasonably believing that they consented.
These offences mean that a person is committing an offence by engaging in any form of sexual activity without your consent or without reasonably believing that you consented. We’ve explained what the law says about consent in a bit more detail below.
Both men and women can be victims of sexual offences and we take all sexual offences cases very seriously.
The law says that a person only consents to sexual activity if they agree by choice and have both:
- The freedom to make that choice
- The capacity to make a choice about whether or not to take part in the sexual activity at the time in question.
This means that you can’t consent to sexual activity if you are pressured or forced into it in any way. It also means that you can’t consent if the circumstances mean that you don’t have the capacity to consent at the time. For example, someone may not have the capacity to consent if they have drunk a lot of alcohol or taken drugs.
As part of the case, we also need to prove that the defendant didn’t have a ‘reasonable belief’ that you consented to the sexual activity. A ‘reasonable’ belief means that a reasonable person would have believed that you were consenting in the circumstances. In other words, it doesn’t matter if the suspect says that they believed you were consenting if we can show that a reasonable person would not have believed that in the circumstances.
You don’t have to have said that you didn’t consent for us to make the case that a reasonable person would not have believed that you were consenting.
In some situations, the law allows us to assume that a person did not consent to sexual activity and the defendant did not ‘reasonably believe’ that they consented, unless the defendant can show otherwise. This includes situations where the victim was unconscious, drugged, abducted or had been threatened with violence.
The law around consent can be complex, speak to your police contact if you have any questions.
Video: What is consent?
Video: Withdrawing consent
Video: Consent - what is reasonable belief?
Video: Myths about consent: 1
Video: Myths about consent: 2
There’s no time limit on how long after the offence you can report the crime. The key difference is that if the offence took place before 1 May 2004 then we need to use different legislation to prosecute it – this may mean that the offences that we can charge someone with are different.
The Sexual Offences Act 1956 is the main piece of legislation covering sexual offences that took place before 1 May 2004.
If you have any questions about non-recent offences you can speak to your police contact who can explain this to you in more detail.
All rape and serious sexual offence cases are reviewed by our specialist ‘rape and serious sexual offences’ (RASSO) prosecutors. They are specially trained to understand the complexities of these types of cases, including the different kinds of impact that this may have had on you as the victim.
To decide whether or not to charge the suspect in a case our prosecutors apply the two-stage test set out in our Code for Crown Prosecutors.
The first stage is the ‘evidential stage’. At this stage our prosecutor reviews all the evidence provided by the police and asks themself the question ‘Is there enough evidence against the suspect to provide a realistic prospect of conviction?’ That means, having heard the evidence, is a court more likely than not to find the defendant guilty?
To answer this question they must consider whether the evidence they can use in court is reliable and credible and whether there is any other material that might undermine that evidence.
This test is different to the test the court applies at trial. When a case gets to trial the jury must be sure that a defendant is guilty in order to convict them. At the CPS we don’t need to be sure that someone is guilty to take the case forward – in fact we don’t make any judgement on whether someone is guilty or not.
If the case doesn’t pass this first stage we can’t move onto the next stage, no matter how serious or sensitive the case may be.
The second stage is the ‘public interest test’. At this stage the CPS prosecutor again reviews all the evidence provided by the police and asks themselves the question ‘Is it in the public interest to prosecute?’.
To answer this question, they must consider things like the seriousness of the offence, the harm caused to the victim, the impact on communities and the age and maturity of the suspect at the time of the offence.
A prosecution will go ahead unless a prosecutor decides that public interest factors against a prosecution outweigh those in favour of a prosecution.
In cases of rape or serious sexual assault, the seriousness of the offence means that where there is enough evidence a prosecution will almost always go ahead. A decision not to prosecute these cases for public interest reasons is very rare and the prosecutor would need to provide clear reasons explaining their decision.
You can read more about our two-stage test in our Code for Crown Prosecutors.
Video: How we make a decision in each case - The Code for Crown Prosecutors
Every case is different and there is no single answer to this question. Some cases may be straightforward while others will have a lot of evidence that we need to review or legal issues we need to resolve.
We know how difficult it can be while you’re waiting for this decision so will always do our best to review the evidence quickly and efficiently so that you aren’t waiting longer than is needed. You have a right under the Victims Code to be provided with information about the investigation and prosecution so if you have any questions about the progress of your case you can get in touch with your police contact and they’ll be happy to help.
If our prosecutor decides that our two-stage test has been met, we will tell the police what offence(s) they can charge the suspect with.
The police will then charge the suspect. At this point the suspect becomes known as the defendant.
In some cases, for example, if the police believe there is a risk the defendant might commit another offence or fail to attend court, the defendant may be ‘remanded in custody’. This means they will be held by the police, usually in a police cell, until they have appeared before a judge when they may request to be bailed.
The police will let you know that the defendant has been charged, what offences they have been charged with and whether they have been remanded in custody. If the defendant has not been remanded in custody, the police will release them ahead of the first court hearing. If that happens the police will let you know whether there are any conditions in place that the defendant must follow, for example staying away from you or a particular place. You can read more about this in our section on bail. The police will also let you know when the first court hearing will be.
The next step is the first hearing of the case which takes place in the magistrates’ court.
If our prosecutor decides that there is not enough evidence to charge the suspect at this time they will then consider whether there is any more evidence the police could look for to make the case stronger. If we believe that more police investigation could help, we will ask the police to continue their investigation and provide us with any more evidence they can find.
If the police find more evidence, the case can then come back to us and we will make a new decision on whether or not to prosecute the suspect.
The police will keep you up to date with what’s happening in the case if they need to look for more evidence.
If our prosecutor decides the case doesn’t pass our two-stage test, and there is no further evidence that the police could look for that would change this, they can't charge the suspect. This is also called a decision to advise ‘no further action’ (NFA).
If we decide not to prosecute the case we will explain the reasons why and you have a right to ask us to look at our decision again. This is called the ‘Victims’ Right to Review’.
There is no formal process that you need to follow to request a review of your case – all you need to do is let us know that you would like us to look at our decision again.
If you’d like to you can include information about why you’d like us to review the case or why you think the decision is wrong but you don’t need to do this – it is enough just to tell us that you’d like us to review the decision.
If you’d like to request a review you should do this as soon as possible after we have let you know about our decision not to charge your case and ideally no later than 10 working days (two weeks) later. We can only accept requests made more than three months after the decision in exceptional circumstances – for example if you weren’t told at the time about your right to review.
If you request a review a new prosecutor will review all the evidence and apply our two-stage test again to come to their own decision in the case. They may decide that the legal test is met and the suspect can be charged or they may agree with the decision that there should be no further action.
Once they’ve completed this review, they will write to you to explain their decision. They will also offer to speak to you over the phone or in person to discuss the case if you would find that helpful. If you’ve provided any additional information alongside your request for a review – for example information about why you think the decision is wrong, then the prosecutor will address any points you have raised in their explanation.
In most cases the prosecutor will tell you their decision within 30 working days (about six weeks). If the review is likely to take longer than this, for example if there is a lot of evidence to consider, then we will let you know how long the review is likely to take and keep you updated with our progress.
If you are not happy with the decision of the new prosecutor then you can request a further review of the case. This will be carried out by our Appeals and Review Unit. They will review of the evidence and apply our two-stage test to come to their own decision in the case. They’ll write to you to explain their decision.
You can find out more on our Victims’ Right to Review page.