‘Shocking and unprecedented’ fall in number of sex attackers being taken to court, judges are told 

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‘Unlawful’ changes to rape prosecution policy have led to a ‘shocking and unprecedented’ decline in the rates of rape offences taken to court, the Court of Appeal has heard.

The End Violence Against Women (EVAW) coalition claims that between 2016 and 2018, the Crown Prosecution Service (CPS) took a series of actions which changed the way cases of alleged rape and other serious sexual assaults are considered by prosecutors, leading them to become more risk-averse about the cases they prosecute.

The coalition is bringing a legal challenge against the CPS, arguing these actions were unlawful and gave rise to ‘systemic illegality’.

At a hybrid hearing today, lawyers for EVAW argued that between 2016 and 2018, the CPS made a move away from a ‘merits-based approach’ (MBA) of determining which cases should be prosecuted.

The CPS is opposing the challenge and argues there has been no shift in approach.

Phillippa Kaufmann QC told the three senior judges that up to 2016, prosecutors were told to take an ‘objective approach’ to cases and ‘put aside myths and stereotypes’ about rape cases and rape victims.

She said it was ‘drummed into prosecutors over six years’ to use the MBA to ‘ensure an evidential-based approach was applied’.

Ms Kaufmann said that from September 2016, it was decided to take a ‘fundamentally different course’, and ‘do away’ with the MBA, which created a risk that prosecutors ended up not prosecuting cases that did meet legal tests to do so.

In documents before the court, Ms Kaufmann said from November 2016, prosecutors were ‘trained away’ from the MBA, particularly through a series of roadshows.

In addition, from May 2017 onwards, legally binding guidance on the MBA and how to apply it was removed, and between 2016 and 2018, the CPS introduced a 60% conviction rate in relation to rape cases, Ms Kaufmann claimed.

She said both the volume of rape cases charged and the charging rate have fallen since 2016/17.

Between 2009/10 and 2016/17, an average of 3,446 rape cases were charged per year, she said, and this fell to 2,822 in 2017/18 – down 23% compared to 2016/17.

In addition, the barrister said, the charging rate has ‘declined precipitously’ from 56% in 2016/17 to 47% in 2017/18 and 34% in 2018/19.

She said: ‘In light of this shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS (which is not disputed), it is EVAW’s case that the actions taken by the Director of Public Prosecutions (DPP) in 2016-18 have given rise to systemic illegality, insofar as there is a real risk that a more than minimal number of Crown prosecutors have, since these actions were taken and in consequence of them, applied the unlawful predictive approach when deciding whether to charge those alleged to have committed the crime of rape.’

This predictive approach – known as the ‘bookmaker’s approach’ – relates to prosecutors considering what may happen if they prosecute a case based on past experience of similar cases, rather than the MBA approach based on objective assessment of the evidence, the documents say.

In written submissions, Ms Kaufmann argued the CPS’s actions were unlawful, and the process by which it took these actions ‘demonstrates a wholesale disregard for the principles of legality and good administration enshrined in public law’.

The barrister said the actions were irrational and breached equality laws, and that the ‘manner and ultimate adoption’ of the changes was ‘wholly opaque and confusing’ in breach of transparency duties.

The documents claim the conviction target was removed at some point in either 2017/18 and 2018/19.

Lawyers for the CPS argued the case was not suitable for legal challenge and asked the Court of Appeal to dismiss the claim.

In written submissions, Tom Little QC said it was EVAW’s case ‘that prosecutors are (or are at risk of) routinely making unlawful prosecution decisions’.

He said: ‘According to the claimant, the systemic failure (or the systemic risk) is that prosecutors are making decisions whether to prosecute rape and serious sexual offences (RASSO) cases taking into account the sorts of subjective considerations or prejudices that a jury might bring to bear on a case…’

There is evidence against this ‘far-reaching’ proposition, Mr Little argued, going on to say a report in 2019 concluded the code for deciding whether to prosecute was correctly applied by CPS prosecutors in 98% of cases out of 250 where no further action had been taken.

The majority of these cases were from the period after the dedicated MBA guidance had been removed.

In documents before the court, Mr Little also argued the term ‘merits-based approach’ was removed out of a concern that ‘some prosecutors were using the MBA as though it was an alternative (lesser) standard by which to determine whether the evidential test was met’ in cases of rape and other serious sexual offences.

Mr Little argued that the decision to initiate the roadshows and to remove the dedicated MBA guidance ‘did not result in any substantial change in the application of the evidential test in the code for Crown prosecutors’.

And he claimed notes show what was said to prosecutors at the roadshows about MNA was balanced and ‘absolutely not an exhortation to prosecutors to move away from the objective assessment of evidence towards a bookmaker’s approach’.

EVAW is understood to be asking to the court to order the CPS to reconsider all rape and sexual assault cases since 2016 which resulted in a decision not to charge, an order the CPS argued would be ‘extraordinary and unprecedented’.

Previous Home Office data has shown that in the 12 months to March just 1.4% of 55,130 rape cases recorded by police led to prosecution. Of the cases that were closed, 41% collapsed because the victim did not support further action.

The hearing, before the Lord Chief Justice Lord Burnett, Lord Justice Holroyde and Lady Justice Elisabeth Laing is expected to last for two days and they are expected to give their ruling at a later date.

A CPS spokesman said: ‘There has been no change of approach in how the CPS prosecutes rape. Our skilled prosecutors are experienced and highly trained to make sure criminals can be brought to justice. No matter how challenging the case, whenever our legal test is met, we always seek to charge.

‘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. The principles of the merits-based approach are enshrined in the Code for Crown Prosecutors, which guides every charging decision.

‘Along with the police, we remain committed to making real, lasting improvements to how these horrific offences are handled, so every victim will feel able to come forward with confidence that their complaint will be fully investigated and, where the evidence supports, charged and prosecuted.’