Sexual violence: CPS faces allegation of dropping rape cases to boost prosecution rates

Meg Lewis, Senior Content Editor and Jennifer Sadler-Venis, Content EditorThursday 5 September 2019

EVAW alleges that the CPS is no longer taking a merits-based approach to rape investigations, and that it now second-guesses jury prejudices in order to boost conviction rates. The merits-based approach stressed the need to consider whether or not consent was sought, as well as given, as detailed under the Sexual Offences Act 2003. According to Sarah Green, Co-Director of EVAW, the approach was instrumental in high-profile child grooming cases that were formerly seen as impossible to prosecute, as it led to prosecutors considering the manipulative behaviour of the accused leading up to specific incidents.

‘Our case is built around how a merits-based approach is a critical human rights-based approach to prosecuting rape,’ Green says, ‘to try to ensure justice where the victims of this crime are disproportionately women and girls.’

Harriet Wistrich, Director of the Centre for Women’s Justice, is bringing the case for EVAW. She argues that the failings by the CPS to prosecute rape is a comparable human rights failure to those witnessed in the investigation of serial rapist John Worboys.

In February 2018, two victims of Worboys won a compensation claim after the Supreme Court upheld that the police had failed in their duty under Article 3 of the European Convention on Human Rights to investigate serious violence against women.

‘If we were to be successful, I think it would show that where there are systemic failures, those may amount to a human rights violation’, Wistrich tells Global Insight. A court ruling in EVAW’s favour, she explains, would mean victims who have been failed by the CPS would be entitled to damages.

The CPS says it recognises that issues in the handling of rape and serious sexual offences have been raised across the criminal justice system, but denies a change in policy. ‘Sexual offences are some of the most complex cases we prosecute,’ says a CPS spokesperson. ‘Decisions to prosecute are based on whether our legal tests are met – no other reason – and we always seek to prosecute where there is sufficient evidence to do so.’

The CPS points to ‘an increase in the volume of digital data and the analysis of evidence gathered by following reasonable lines of enquiry’ as one of the reasons for the falling charge rates.

Though police forces across England and Wales have been requesting victims’ consent to review digital data in sexual assault cases for some time, a new national digital disclosure form rolled out in 2019 has brought the controversial practice back into the spotlight. Victims report being asked to hand over their phone and laptop contents – and in some cases their entire medical history – or risk having their cases abandoned.

‘It’s very intrusive for the victim to go through that. Unless there’s a really strong reason as to why there is something about a particular case that makes the digital disclosure particularly relevant, then it just should not be permitted at all,’ argues Rachel Horman, a solicitor and Head of the Domestic Abuse, Stalking and Forced Marriage Department at Watson Ramsbottom.

Green agrees that the proposed digital disclosure practice is a breach of the victim’s privacy. ‘Victims are not objects to be instrumentalised in a rape investigation,’ she says. ‘We need to really look at what is a reasonable line of enquiry.’

‘The form calls into question reasonableness, proportionality and relevance,’ agrees Luz Nagle, Co-Chair of the IBA Crimes Against Women Subcommittee. ‘Given such latitude by police investigators to probe so many details of a victim’s life, who is monitoring the investigators and the extent to which they may overstep their interpretation of “relevance”?’

The Information Commissioner’s Office (ICO) is conducting a probe into this intrusive use of claimant information and will be publishing its findings and recommendations. The CPS states that it will continue to work with victims and the ICO to ensure the right approach is being taken, and will carefully consider the results of the review. ‘It’s essential that all victims have confidence to report their experiences,’ a CPS spokesperson says. ‘Balancing privacy with a thorough investigation is in everyone’s interests to ensure a fair trial.’

The CPS spokesperson explains that there are avenues for victims who disagree with the CPS’s decision. They point to the Victim’s Right to Review Scheme, launched in June 2013, which allows victims to ask for a review of their case by another prosecutor, independent of the original decision-maker, if a decision is taken not to charge or to discontinue proceedings. ‘This is another way we can make sure we are fair and transparent in what we do,’ the spokesperson says.

However, Horman says that there are inconsistencies in how the Victim’s Right to Review Scheme is applied to individual cases. She argues that the Scheme needs to be reviewed by an independent body, and that stakeholder training and accountability measures need to be tightened. ‘There needs to be more consequences for poor decision-making,’ she says, because as it stands, ‘everybody involved in the criminal justice system is letting down and putting victims at greater risk.’

The CPS maintains that its guidance for prosecutors is regularly reviewed and refreshed to ensure it supports them to make charging decisions that follow the test set out in the Code for Crown Prosecutors.