Campaigners lose legal fight with CPS over ‘unprecedented decline’ in rape cases
A legal challenge against the Crown Prosecution Service over its policy on prosecuting alleged rape and other serious sexual offences has been dismissed by the Court of Appeal.
The End Violence Against Women Coalition (EVAW) claimed a change in policy had resulted in a “shocking and unprecedented” decline in rape prosecutions.
The Crown Prosecution Service (CPS) denied the allegation and said there had been no change in policy and no “substantial change” in charging decisions.
EVAW argued the CPS had moved away from a “merits-based approach” to deciding which cases of alleged rape and other serious sexual assault should be prosecuted, which has given rise to “systemic illegality”.
The group claimed that, between 2016 and 2018, prosecutors became more risk-averse and shifted towards an “unlawful predictive approach when deciding whether to charge” alleged sexual offences.
Their lawyers said the unlawful approach has led to a “shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS”.
The CPS, however, said there had been no change in policy and argued at a hearing in January that the removal of dedicated “merits-based approach” guidance “did not result in any substantial change” in charging decisions.
In a statement after Monday’s ruling, Andrea Simon – director of the End Violence Against Women Coalition, which brought the case against the CPS – said: “We are deeply disappointed at this outcome. However, we have no regrets about holding institutions accountable for the effective decriminalisation of rape.
“Thousands of rape victims continue to be let down by a broken criminal justice system.
“The Court of Appeal has given the CPS the benefit of the doubt on whether there was any change of approach to prosecution decision-making, but we still lack alternative answers to why rape prosecutions have collapsed.
“This marks another establishment betrayal of victims of violence against women and girls.”
Ms Simon added: “Today’s judgment lands in the midst of a national conversation about how unacceptably commonplace violence against women is and the constraints women feel they have to put on their freedoms to simply go about their lives.
“Rape urgently needs to be at the heart of the political agenda. There are systemic failings – with some victims highly invisible to the justice system because of their race, disability or background.
“We expect a review into rape by the Government to report soon and it must deliver deep and meaningful change to restore any confidence in the system.”
Director of Public Prosecutions Max Hill QC said: “The devastating impact and the scale of violence against women and girls is dominating national debate. Women have bravely shared their experiences to demand change.
What you should do if you’re the victim of a rape or sexual assault?
“All of us must look hard at what more we can do to can create a society where everyone feels safe, and to remove any barriers to justice.
“Rape in particular is an abhorrent crime and one of the most complex to prosecute. The impact on victims is shattering and lasting, and it has long been recognised that all parts of the criminal justice system must give real and ongoing focus to the issue.
“Every victim must feel able to come forward with confidence that their complaint will be fully investigated and, where the evidence supports, charged and prosecuted.”
He added: “The Court of Appeal has today handed down its judgment following detailed consideration of how the CPS prosecutes rape.
“They have dismissed the case, confirming that the CPS was neither irrational nor unlawful in its approach to updating guidance for prosecutors, and that there was no change of approach in the way the CPS prosecutes rape cases.
“For more than a decade, the CPS has prioritised rape and sexual offences.
“The challenges in prosecuting these crimes are well known, and it is essential that our guidance and training is subject to ongoing review so that our prosecutors are supported in their duty to make sure that the right person is prosecuted for the right offence.
“Every rape case that comes to the CPS is considered by a highly trained lawyer in one of our specialist Rape and Serious Sexual Offences (RASSO) teams, who has access to the latest information needed to prosecute these offences.”
Mr Hill told of the CPS’ need to adapt to a “continually evolving” landscape and external factors such as “ever-growing volumes of digital evidence”, changes to UK law, the “growing understanding of the impact of trauma”, and “evolving myths and stereotypes”.
He said: “However, the legal test that guides every charging decision has not changed. The principles of the merits-based approach are enshrined in the Code for Crown Prosecutors, which guides every charging decision.
“Independent inspectors have found no evidence of a risk-averse approach and have reported a clear improvement in the quality of our legal decision-making in rape cases.
“Today’s outcome means we can now give our full focus to the extensive programme of work underway to address the gap between reported rapes and cases going to court.
“We must now rebuild public confidence that every allegation of rape or sexual assault will be fully investigated by the police and will go before the courts whenever the legal test is met.”
Mr Hill added: “I share the deep public concern that, while the number of rape allegations has increased significantly in recent years, the number going to court has fallen.
“The CPS is actively involved in the cross-Government review which has been working for almost two years to understand and address the reasons behind the trend.
“While that work continues, it is clear no single factor has led to the drop in cases, and meaningful change will need a system-wide approach. The findings of that review are due to be published this spring.
“Our 2025 rape and serious sexual offences strategy is a comprehensive programme of work designed to narrow the gap between reported rapes and cases going to court.
“In January, we published our blueprint to drive even closer working between the police and prosecutors to tackle this gap head on. The Joint National Action Plan between the CPS and National Police Chiefs’ Council sets out a wide-ranging plan for greater collaboration to improve the response to RASSO cases.
“It is designed to ensure victims have confidence in the criminal justice system and receive the best possible support and care whilst investigations and prosecutions take place.”
EVAW’s claim was initially refused by the High Court in March last year, with senior judges refusing permission for the group’s judicial review to go ahead.
But, last July, the Court of Appeal reversed that decision and granted permission for the case to be considered at a full hearing.
Earlier this year, EVAW’s barrister Phillippa Kaufmann QC told the court that prosecutors were previously told to take an “objective approach” to cases and “put aside myths and stereotypes” about rape cases and rape victims.
She said that, from September 2016, it was decided to take a “fundamentally different course” and “do away” with the merits-based approach.
Ms Kaufmann said both the volume of rape cases charged and the charging rate have fallen since 2016/17, with the number of rape cases charged in 2017/18 down by 23% compared to the previous year.
Tom Little QC, for the CPS, said the term “merits-based approach” was removed out of a concern that some prosecutors were using it “as though it was an alternative, lesser, standard by which to determine whether the evidential test was met”.
He argued that information provided to prosecutors about the merits-based approach was “absolutely not an exhortation to prosecutors to move away from the objective assessment of evidence towards a bookmaker’s approach”.
Mr Little said EVAW’s claim turned on whether “the removal of the standalone merits-based approach guidance… constituted a volte-face” by the CPS, adding: “It manifestly did not.”