CPS denies major change in rape charging policy despite falling rates

The Crown Prosecution Service has denied making major changes to its approach to charging rape, at a landmark legal hearing at the court of appeal.

Lawyers for the Centre for Women’s Justice (CWJ) and the End Violence Against Women (EVAW) coalition argued on Tuesday that the CPS “raised the bar” for the charging of serious sexual crimes between 2016 and 2018, leading to “systemic illegality” in decision-making and a collapse in charging.

They argued that senior CPS figures dropped all references to the “merits-based approach” – which explicitly dictates that a prosecutor should consider evidence as it would be heard by an unprejudiced jury – in charging guidance.

They further said that the CPS took a “roadshow” to all rape and serious sexual offences units to try to boost conviction rates, and set targets that led to cases perceived as “weaker” being dropped.

On Wednesday Tom Little QC, representing the CPS, said that in 2016 the then director of public prosecutions (DPP), Dame Alison Saunders, identified an issue with the merits-based approach, which had led to some prosecutors seeing it as a lower standard for charging.

He said that in the summer of 2016 there was a realisation there was a problem and that something had to be done about it. “Otherwise unlawful charging decisions would continue to be made and conviction rates would remain at the awfully low level that they were,” he said. The DPP was the best person to deal with that issue, he added.

However, Little said those who attended the roadshows did not understand them to signal a return to the “bookmaker approach” – where a prosecutor may try to predict the verdict of a trial – and that other training around myths and stereotypes surrounding rape continued. The change in policy was slight and not the “volte-face” the CPS was accused of, he added.

Lawyers for EVAW argued that Saunders allowed adverse publicity around cases that collapsed in 2016 and 2017 to inform her decisions. He cited a witness statement from the former DPP in which she said “adverse publicity around specific cases may have been part of the background to discussions at this time,” but added that “the decision to embark on the roadshows was based upon the bigger picture consideration”.

Little pointed to a 2019 report from the CPS inspectorate that found no evidence of prosecutors taking a more risk-averse approach. He stressed that the report was independent. It has previously been criticised by victims’ groups, which said it betrayed “a huge lack of curiosity” about the collapse in rape charging.

On Tuesday the court heard that the volume of rape cases charged and the charging rate had fallen since 2016-17. Between 2009-10 and 2016-17, an average of 3,446 rape cases were charged each year, but the figure fell to 2,822 in 2017-18. The charging rate fell from 56% in 2016-17 to 47% in 2017-18 and 34% in 2018-19.

The judicial review is being heard by the lord chief justice, Lord Burnett, Lord Justice Holroyde and Lady Justice Elisabeth Laing. This is the third court hearing, after the case was originally dismissed by the high court in March 2020, a decision later overturned at an appeal hearing in July 2020. Judgment is expected to come at a later date.

A government end-to-end review of how rape is investigated and prosecuted was announced in March 2019.