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Judge Condemns CPS for Pursuing Sexual Assault Case

About The Author

Helen Morse (Writer)

Helen is studying Law (European & International) LLB at the University of Sheffield, now entering her final year having spent an Erasmus year at the University of Vienna, Austria. Helen is interested in international and commercial law. Outside of law, Helene is a keen sports woman, playing at county level.

In September this year, Judge Anthony Morris QC criticised the Crown Prosecution Service (CPS) for pursuing a sexual assault case when there was inadequate evidence. This is not the first time the principal public prosecution service for England and Wales has faced such criticisms, which begs the question: is the current process for deciding whether to prosecute an individual stringent enough or is it time for change?

The Case

Archie Reed, aged 20, was charged with assault by penetration earlier this year after an incident in October 2013 with a 19-year-old female acquaintance that Reed previously knew. The two friends met at the Northumberland Arms, Tottenham Court Road, to catch-up over some drinks. They did not end up leaving until 1am having both consumed large amounts of alcohol. Reed was invited to stay in the female’s room at her university halls after he missed his last tube home. It was there that the alleged victim claimed Reed assaulted her whilst she slept. Reed was arrested two weeks later.

Reed claimed that he had ‘picked up the wrong vibes’ from the young woman. He said he had decided to ‘go for it’ after they had been holding hands (as shown on CCTV), kissing each other and she had invited him into her bed. He added she had been grinding against his groin whilst they were in bed together, but when he touched her intimately she told him to stop and, confused, he left soon after. Reed said that he ‘had obviously made a mistake with a friend’ but that he ‘wasn't sure why she had freaked out all of a sudden’.

When the case came to trial it was clear there were several flaws with the evidence. Initially, the jury struggled to follow a video interview with the alleged victim, so the defence team had to produce a transcript. Equally, key texts sent and received by the woman could not be downloaded. Police experts had to resort to taking pictures of the messages, which were barely legible. To add to this, it then emerged that vital messages sent in the hours after the incident were deleted and the police had not seized the woman’s phone until six months after the incident. Exasperated, Judge Morris said I would have expected [the phone] to be taken from the complainant at the time of her interview and examined there and then’ and that it was a ‘shortcoming of the investigation of this matter’. When he learned that the alleged victim had not been questioned about the missing texts, Judge Morris criticised the CPS for opting to pursue the case at all. He commented that, ‘sometimes it would be helpful for someone from the CPS to be in court and see the problems created at cases which aren't investigated properly, and the consequences, instead of being at the end of the phone opining whether cases should go ahead or not’.

Reed was unanimously cleared of assault by penetration and walked free from the court after being discharged by the Judge.  

Unfortunately, this is not an isolated example; the CPS has previously come under fire for deciding to prosecute individuals when there is insufficient evidence. For example, last year Coronation Street actor, Michael Le Vell was acquitted following being charged with a number of child sexual assault charges, including rape. There was no evidence to be found against him, including forensic evidence, except the testimony of the alleged victim; there was no forensic evidence. As cases like these come in wake of the highly publicised Jimmy Saville revelations and an increased consciousness from the CPS to tackle rape, it leads to the suspicion that more than the quality of evidence is at play when the CPS takes a decision to prosecute or not.

There are several reasons why such cases have to be prevented and the criticisms of Judge Morris must be addressed with urgency. Firstly, it is not only embarrassing for the CPS, but it is a waste of time and money when it emerges a case has been pursued that should not have been allowed to reach court. In addition and maybe more importantly, I worry such examples may deter future victims of sexual crimes from coming forward. Actual victims of offences with a similar set of facts might just see a defendant walking free from court, not appreciating that the case should not have reached court in the first place, and assume what happened to them is not a crime. Equally, it is just as possible that a guilty person could get away with a crime purely because the evidence against them was not prepared and/or presented properly before the court. With this in mind, I am going to assess the decision making process of the CPS when prosecuting and consider whether any substantial changes need to be made.

The Decision Whether to Prosecute

When deciding whether to prosecute or not, the CPS follows a two-stage test known as ‘The Full Code Test’, set out in The Code for Crown Prosecutors.

First, prosecutors must ask themselves:

Is there enough evidence against the defendant?

To prosecute, there must be sufficient evidence to provide a ‘realistic prospect of conviction’. The Code defines this as an objective test where whoever hears the case, when directed and acting in accordance with the law, is more likely than not to convict the defendant of the alleged charge. This is a lesser test than the one applied in the criminal courts; to convict, Magistrates or a jury must be sure the individual is guilty.

When deciding whether to prosecute, The Code instructs the CPS to assess the quality of evidence and decide whether it is reliable enough to be used in court. It is important to note that this is not the same as believing a piece of evidence; the focus is solely on the quality of the evidence.

If it is concluded that there is not a realistic prospect of conviction there is no need to move to the second stage. Where there is not enough evidence to prosecute, the case must not go ahead, no matter how compelling any other factors may be.

However, if based on the evidence prosecutors feel there is a realistic prospect of conviction, they then must ask themselves:

Is a prosecution required in the public interest?

The Code states that a prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour or the prosecutor is satisfied that the public interest may be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal. This can include a prohibition from certain activities, a curfew or community service. Public interest factors are case sensitive, but the Code advises that the more serious the offence or the offender's criminal record, the more likely a prosecution will be required.

Only once these two questions have been answered in the affirmative, may the CPS take a case to court.

On consideration, The Full Code Test seems a legitimate way of ensuring only the right type of cases, with a genuine chance of conviction, reach court. As an objective test, the evidential stage should ensure Magistrates and jurors are presented with all the available evidence to be able to reach an informed decision on whether the accused is guilty or not. The public interest stage then facilitates out-of-court settlement, meaning time and money is not unnecessarily wasted. Equally, having a simple two-stage test for all crimes does not over-complicate the prosecution process and makes it as impartial as possible, particularly in complex criminal cases where more than one type of offence may have taken place. Despite this, something is still clearly going wrong, as the mounting criticism of the CPS demonstrates. Applied properly, The Full Code Test is designed to avoid cases, like that of Archie Reed, ever reaching court, leading me to the conclusion that it is not the test used but other factors which contribute to the shortcomings of the CPS.    

Where Do the Problems Lie?

I can see two main reasons why the Full Code Test is not fulfilling its objective when prosecutors at the CPS are deciding whether or not to pursue a case. The first of these, which can arguably be linked to the second, is the mounting budget cuts the CPS has faced over the last five years and, secondly the CPS’s working relationship with the police.

As the Archie Reed case demonstrates, the CPS is not properly applying the evidential stage of The Full Code Test. There is a clear lack of preparation for some trials with cases being allowed to proceed to court when the quality of evidence is significantly below the expected standard. Last year, the Bureau of Investigative Journalism found that in 2012, 45 (1 in 20) homicide trials failed because the CPS provided insufficient or no evidence, a rise of 50% from 2010. This rise correlates with CPS staff facing increasing work pressures and being over-stretched due to a large reduction in staff. From 2010 to 2013, the CPS lost 23% of its barristers, 22% of its solicitors and 27% of its higher court advocates. Following such a loss of manpower and expertise in such a short space of time, it is no wonder that standards are slipping.

The CPS has keenly denied that the cuts are affecting the quality of their work. For instance, in a statement after the Michael Le Vell case, the CPS claimed performance had been unaffected by the cuts and staff reductions, quoting figures which showed conviction rates were consistent with the past eight years and, in particular, the conviction rate for violence against women and girls, including rape, hitting a record high in 2012-13. However, the number of cases that have failed because the CPS provided insufficient evidence and the mounting criticism from top Judges suggests otherwise. Equally, the fact the CPS gave warnings back in 2010, when they first faced the prospect of significant budget cuts, that they could ‘damage frontline services' and ‘delay and possibly deny justice’, makes their statements of assurance unconvincing.

Another reason the CPS is unsuccessfully applying the evidential stage appropriately is because it has become ‘predisposed to prosecute’. Critically, the CPS has failed to become an independent body separate from the police, as was originally intended when established in 1985. The CPS is reliant on the quality of evidence from the police and has a lack of resources to investigate files. This lack of independence makes prosecutors, who are already over-worked due to staff reductions, more susceptible to the pressures from the public and media to secure justice in areas where they had failed to do so in the past. Again, reference to the Jimmy Saville revelations and the subsequent CPS and police joint measures to tackle rape must be made. This offers a sensible explanation as to why the CPS decided to pursue sexual assault cases, like the Archie Reed case that inspired this article, even though they were provided with insufficient evidence from the police, clearly failing the first stage of The Full Code Test.  

Conclusion

On first reading of Archie Reed’s case, I expected the process used to determine whether to prosecute or not to be the source of the CPS’s problem. However, it seems the CPS faces issues much deeper than that, and it is these issues that are hindering the CPS applying The Full Code Test effectively and impartially every time. Unfortunately, the answer to these problems seems to be money, which is not a simple one. With increased funding the CPS could recruit more staff and experts, meaning analysis of evidence is not rushed and incomplete. Equally, the CPS could afford to invest in resources, and perhaps restructure areas of their business, which would allow the CPS to be less reliant on the police and less vulnerable to fulfilling the police’s agenda rather than working towards its own independent objective.

Even though we are still facing difficult financial times, I would suggest the CPS is an area that would benefit greatly from government investment. This is because, as stated by Michael Turner QC, Chair of the Criminal Bar Association, 'at the end of the day if weaknesses [caused by lack of funding] are leading to breakdowns and re-trials then the tax payer ends up spending more money in the long run'. Not only do I agree that investment would eventually save money by reducing wasted court time and resources, but, more importantly, investment would promote impartiality and restore faith in the CPS and the justice system as a whole.

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Tagged: Criminal Law

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