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Prosecuting Rape: Is the CPS Raising the Bar Too High?

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About The Author

Vistra Greenaway-Harvey (Regular Writer)

Vistra is a law graduate from Queen Mary University of London with a particular interest in civil liberties. Currently is studying for the combined LLM BPTC at BPP University on a part time basis and is working for a local authority. Outside the law, she enjoys costume design and eating London’s finest food. 

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The criminal courtroom is inherently adversarial. The arguments between the prosecution and defence end in a verdict: guilty, or not guilty. One side wins. Yet in the criminal justice system it could be argued there are no winners. Even when a criminal is convicted, the victim has already lost. This is especially true for sexual offences, where victims often express ongoing trauma for years after the event. For many, having their day in court can provide a form of closure, painful though it may be.

Reports that the Crown Prosecution Service (CPS) are encouraging prosecutors to drop rape cases that they cannot win to increase performance data have therefore caused  considerable controversy. Government figures show that there was a 23 percent drop in the number of rape cases prosecuted by the CPS from 2017-18, despite a 16 percent increase of police recorded rape over the same period. The End Violence Against Women Coalition argue that the CPS has covertly changed its policies on charging decisions in a way that hinders access to justice. This is a stark contrast to the CPS’ objective to ‘bring offenders to justice wherever possible,’ and if true could undermine decades of campaigning to encourage victims to report rape.

The solution, according to EVAW, is to judicially review the CPS’ decisions not to prosecute, and they have served a letter before action highlighting their intention to bring legal proceedings against the CPS. The £24,011 raised by crowdfunding to support this litigation demonstrates the strength of public feeling, yet the legal case is more nuanced. This article will analyse the issues surrounding the alleged change in practice and the corresponding impact on a judicial review challeng

Grounds for Judicial Review

There are several grounds upon which prosecutorial decisions can be judicially reviewed. As EVAW’s complaint hinges upon a ‘covert’ rather than an explicit change in policy, it is crucial to show how current practice has changed from established policy.

The established policy is set out in the Code for Crown Prosecutors (‘The Code’). The Code sets out a Full Code Test and a threshold test (the latter of which is used in circumstances where the seriousness or circumstances of a case justify making an immediate charging decision). Save for circumstances where immediate charging decisions are required, which are outside the scope of this article, prosecutors are required to use the Full Code Test.

The Full Code Test sets out a two-stage test for prosecutions: the evidential stage and the public interest stage.

At the evidential stage prosecutors must consider all the available evidence to determine whether there is a realistic prospect of conviction. When assessing whether there is sufficient evidence to prosecute prosecutors must ask themselves the following four questions: (a) can the evidence be used in court; (b) is the evidence reliable; (c) is the evidence credible and (d) is there any other material that might affect the sufficiency of evidence? Prosecutors must consider these questions at every stage of the case.

If prosecutors determine there is sufficient evidence, then they must decide whether the prosecution is in the public interest. In their guidance the CPS highlight that the second stage is almost always met, however, ‘if the evidential stage of the test is not satisfied, a case cannot proceed, no matter how serious.’

If it can be shown that prosecutors have deviated from this policy in practice, there is the potential for judicial review on the grounds that the current practises have changed policies to the extent that they are now unlawful. The seminal case in this area is R v DPP, ex p. C [1995] 1 Cr App R 136. In that case the Divisional Court held that it has the power to interfere with decisions not to prosecute where the prosecutor fails to follow the settled policy set out in the Code for Crown Prosecutors.

However, this power should be used sparingly. As explained by Lord Bingham in R v DPP, ex p. Manning [2000] EWHC 562 (QB), this is because the decision to prosecute in most cases depends upon how the defendant would fare before the jury, an inherently subjective judgment. Thus 'it will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it.'

Using R v DPP, ex p. C, the EVAW could have an argument to challenge the CPS’ alleged new practices, if those practices deviate from the Code. The strength of this argument is weakened by the CPS’ adamance that no change has occurred. Acknowledging the falling charges for rape, the CPS maintain that they apply the Code for Crown Prosecutors to assess which cases should be taken to trial. The question, then, is whether any change of policy or practice can be proven, and whether this gives sufficient grounds for the EVAW to challenge the CPS’ decisions.

The Problem with Juries

As criminal trials, rape cases are tried in front of a judge and jury. The role of the jury in criminal cases is to decide questions of fact and determine based on the facts presented whether the defendant is guilty or not guilty. Consequently, the jury are an important factor in obtaining a conviction.

The benefits of having jury trials for sexual offences is often mooted, and the criticisms of jury trials are particularly acute in the context of rape due to its complexity and sensitivity to stereotypes. The Sexual Offences Act 2003 (“The Act”) aimed to codify earlier statutes and clarify the position on sexual offences. Set out in section 1 of the Act, rape has a seemingly straightforward definition: the intentional penetration of another who does not consent with no reasonable belief in their consent. However, unlocking each element of the offence, especially the notion of consent, has required much judicial interpretation and leaves considerable room for doubt and interpretation by jurors.

It has therefore been argued that removing juries from rape trials would protect against some of the rape myths prevalent in society, and by extension in juries. These myths have previously been discussed by Elizabeth Smart for Keep Calm Talk Law, in relation to the Belfast trial in 2017.

Myths that women who are promiscuous, drunk or 'play hard to get' ought not to complain about being raped effectively strip 'badly-behaved' women of their rights to be victims by undermining their credibility. Conversely, myths that 'good guys' do not rape promote the notion of an archetypal rapist which may be inaccurate, causing problems when juries are faced with individuals that do not fall into this archetype. For instance, young men are consistently less likely to be found guilty of rape by juries than older men, and the public consistently underestimate the proportion of rapes committed by persons known to the victim (for examples spouses) rather than by strangers.

Whilst judges provide standard directions to juries instructing them to disregard assumptions about sexual behaviour and reactions to sexual behaviour, pupil barrister Alisa Keon argues that rape trials frequently depend on ‘credibility contests’ that rely on convincing jurors who are inherently ‘poor lie detectors.'

Should we, then, drop juries in favour of judges in rape trials? Keon admits that judges are also fallible and susceptible to societal influences, yet judges’ decisions are not debated and questioned except in case of appeals. Given these frailties Keon argues that there is merit to having 12 individuals from differing backgrounds discuss their views during the decision-making process, while judicial directions to jurors on the dangers of assumptions in sexual offence cases are used as an attempt to counter stereotypes.

However, it has been suggested that the existence of these prejudices and the alleged susceptibility of jurors to them has gone beyond the jury box, and may be impacting prosecutorial decisions at a much earlier stage in the criminal process.

In November 2018 Dame Vera Baird, the Association of Police and Crime Commissioners (APCC) lead for victim support (and as of June 2019 the new Victims’ Commissioner for England and Wales) questioned whether prosecutors were taking a ‘bookmakers approach’ and basing their decisions in rape cases on previous jury convictions. The EVAW have echoed these concerns, stating that the CPS’ change in practice has led officers to switch ‘from building cases based on their “merits” back to second-guessing jury prejudices.’

There is an important distinction to be made here between jurors’ misconceptions in a trial setting, and individual members of the CPS presupposing what jurors will and will not believe. For instance, a survivor known anonymously as ‘Rebecca’ highlighted in an interview with the Guardian that her case was dropped because the prosecution felt a jury would not believe a survivor would message her rapist after the attack. At no point was a jury given the opportunity to test that belief – their opinion was simply assumed, and the case dropped. Arguably, standard directions exist precisely to educate a jury on this kind of issue at trial. In the view of the EVAW, the CPS have a duty to deal with rape myths head-on and not just accept that a jury will continue to believe them.

It is also unclear in some cases what standard the prosecution applies when predicting jury outcomes. Embedded in the Code is an assessment of the complainant’s credibility – this is what the evidential stage of the Full Code Test exists to do. Prosecutors must assess whether the evidence is credible enough to pass the threshold of a realistic prospect of conviction. The standard of this proof is whether ‘an objective, impartial and reasonable jury, magistrate or judge, acting in accordance with the law, is more likely than not to convict the defendant of the alleged charge.’

‘More likely than not’ is not the same as the criminal standard of proof, ‘beyond reasonable doubt.’ If prosecutors are deciding not to prosecute because they feel the evidence would not meet the standard of ‘beyond reasonable doubt’, they are applying a much harsher test than the one set out in the Code. R v DPP, ex p. Manning held that prosecutors should not apply a test higher than laid down in the Code, so a finding that the CPS consider jury credibility to this standard would indicate that the policy has not been properly followed in practice, and could therefore be judicially reviewed.

Is the CPS ‘Raising the Bar’ for other reasons?

In addition, senior police officers have raised concerns that the CPS have ‘raised the bar’ for other reasons. Critics allege that weak cases have been dropped to bolster conviction rates - whistleblowers from the CPS, assert that they were incentivized to implement a subtle shift in their practises and remove ‘350 weak cases’ from the system to increase the conviction rate up to 61%. Consideration of wider conviction rates are not a relevant public interest consideration as per the Code. If true, these instructions would indicate a clear and unlawful departure from settled polic

The Challenge – Can EVAW Succeed?

This alleged covert change in CPS policy has therefore been subject to much criticism which is, in this writer’s view, warranted. It appears to have created a marked change from the established policy set out in the Code. However, the CPS continue to deny any change has taken place. In particular, as late as May 2019, the CPS reported that ‘there is no policy asking prosecutors to judge a case based on how they predict a jury might decide.’ Similarly, the CPS deny making prosecutorial decisions on the basis of conviction rates as alleged by whistleblowers.  

Instead, the CPS argue they apply the Crown Prosecutors Code outlined above and state that a number of factors have led to the decline in convictions, including the early investigative advice given by police and difficulties collecting and analysing large volumes of data. The CPS have partnered with a cross-departmental review to uncover any additional factors, and the results of this review may provide insights into the cause of falling rape conviction rates.

Sarah Crew, the National Police Chiefs' Council lead for rape and adult sexual offences, argued the decline in convictions reflects ‘a justice system that is stretched and under pressure.’ Austerity measures have impacted the entire justice system, including the CPS. With funding reductions of 30% since 2010, Attorney-General Geoffrey Cox MP reported that the CPS will not be able to sustain further reductions at the same level. However, he claimed that there had been no ‘suffering in the core functions of the CPS as a consequence of the reductions we have seen to date.’

The EVAW therefore have a great evidential burden to prove that these changes have occurred, and that declining conviction rates are not a result of austerity or systemic issues. However, this is an ongoing issue and in light of the whistleblower evidence that has emerged and the increasing media commentary from police officers and complainants, further evidence to support EVAW may arise in the near future. Currently, EVAW state they have over 20 case studies that support their view that there has been a covert change in policy.

Whilst this evidence is promising, it is important to reiterate that R v DPP, ex p. Manning states the powers of the Divisional Court to judicially review prosecutors’ decisions must be ‘sparingly exercised.’ Complainants also have recourse to a review by an Independent Specialist Prosecutor, therefore there is arguably less impetus for judges to wade into these decisions. In summary, EVAW have a difficult task ahead of them to persuade the court to intervene.

They will however be assisted by the rule in R v DPP ex P. C that there is an arguable claim where a prosecutor fails to apply settled policy. There is no requirement to prove that the new policy applied is inherently unlawful, only that it differs from the settled policy.

Furthermore, the Centre for Women’s Justice, who represent the EVAW, argue that ‘failures by the CPS to consult on changes to policy and [disregarding] its own guidance developed to tackle the under-prosecution of rape are, we argue, unlawful.’ In narrowing the focus of the case from the policy itself to a failure to consult, the EVAW have freed themselves from the need to prove the unlawfulness of the new covert policy. They will only need to prove that the CPS should have consulted those affected before putting the new policy into place. If they win the court could order the CPS to review their decision not to prosecute.

It is clear the EVAW have prepared themselves for a long legal battle. Whatever the outcome, hopefully this will mean greater transparency for victims on how prosecutorial decisions are being made, and allow more of them to receive the closure they need.

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Tagged: Courts, Criminal Law, Judicial Review, Justice, Sexual Offences

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