By Polina Suchkova
The End Violence Against Women Coalition (EVAW) and Centre for Women’s Justice (CWJ) have brought forward a claim for judicial review against the Crown Prosecution Service’s (CPS) policy on the prosecution of rape. This comes after the overturning of the initial case dismissal by the High Court in March last year.[1]
The claimant’s case is grounded on the statistical decrease in rape case prosecutions and CPS instructions to prosecutors.[2] Although rape reports have increased by almost a third in the past four years to 59,747,[3] rape prosecutions have fallen from 3,043 to 2,102 in the period between 2018/2019 and 2019/2020.[4] It would be plausible that due to resource availability, the number of reported rapes increases but the number of prosecutions stays the same. However, and this is the view of the CWJ, something must be wrong if one increases whilst the other falls by almost a third. This statistical change is being attributed to a shift in CPS policy, and there are reports that at specialist rape prosecutor training seminars, guidance was given by Greg McGill and Neill Moore, Director and Legal Advisor of the CPS, to take a more risk-aversive approach and to avoid prosecuting weaker cases in order to improve conviction rates.[5] It is disappointing how their policy is shaped more by public image considerations than criminal justice considerations. Although it is understandable that the CPS do not have the resources to prosecute every claim, forecasting the decision of a jury in such a way in these uncertain cases is simply wrong and nullifies the purpose of a jury. Justice is not simply about the guilty outcome at the end of a trial, for the process by which this is achieved is equally, if not more important.
The CPS in contrast argue there has been no such change and that they select cases for prosecution consistently. They say they are guided by the merits-approach enshrined in the Code for Crown Prosecutors.[6] However, this approach is not reflected in the guidance they reportedly gave in a controversial series of workshops in 2017,[7] which encouraged the dropping of cases they considered weaker and brought the present issue to the surface. It is true not all cases, at least presently, can be prosecuted for various reasons, including resource availability. Cases that are considered weaker are cases where there are issues of controversy, such as intoxication or that the victim had a complicated relationship with the rapist.[8] Thus, in dropping these cases, the CPS give rape myths and stereotypes weight and also further discourage survivors from coming forward and seeking legal remedies. This is not a desirable approach, and indeed, the former Director of Public Prosecutions legal advisor in 2009 and 2013, Allison Levitt QC, had recommended prosecutors not to be put off by such stereotypes when prosecuting.[9]
A potential reason behind the fall in rape prosecutions that I feel the CWJ are avoiding disclosing are the continuous budget and personnel cuts the government has imposed on the CPS. In 2018/19, there were 5,684 full-time equivalent CPS staff compared with 8,094 in 2010/11, roughly a 30% decrease.[10] The government has evidently become aware of this problem and in 2019 announced it will inject an additional £85 million into funding the CPS.[11] However, the First Division Association (FDA) warns that even this ‘does not cover the real-terms loss of department money over the last decade’.[12] This possible alternative reason for the decrease in prosecution weakens the CWJ argument that it is the CPS guidance to not prosecute weaker cases that is responsible for the decrease in prosecutions. Furthermore, whilst the participants in the seminar who had worked with the CPS before felt that avoiding prosecuting weaker cases was a change in policy, those in charge stressed in their official statement that it was not.[13] Whether or not this guidance will be found unlawful or not, there is little doubt that is against the interest and wellbeing of victims.
I believe that whatever the outcome of the case, its mere occurrence and the publicity it has attracted will be beneficial in the long-term. It serves as a reminder to the CPS that they will be held accountable for their actions, and though we should not need to do this, it has occurred. Following the bringing forward of these claims and media criticism, the CPS have announced a ‘five-year blueprint’, called RASSO25, in which they will aim to decrease the disparity between reported cases of sexual violence and prosecutions.[14] This will include a joint action plan to improve collaborationbetween police and prosecutors, resourcing of trained prosecutors, and other steps they believe will be beneficial. This is undoubtedly a step in the right direction, but we should not simply accept this as a final victory. We should carefully analyse the statistics the CPS will publish, beyond the success of convictions, to see whether this new policy has a genuine impact.
[1] https://www.theguardian.com/law/2020/mar/17/secret-policy-change-by-cps-cut-number-of-trials-high-court-told [2] https://www.centreforwomensjustice.org.uk/news/2020/7/30/court-of-appeal-grants-permission-for-judicial-review-of-cps-rape-policy-womens-groups-delighted [3] https://www.cps.gov.uk/publication/cps-data-summary-quarter-4-2019-2020 [4] https://www.bbc.co.uk/news/uk-48095118 [5] https://www.theguardian.com/law/2018/sep/24/prosecutors-rape-cases-cps-crown-prosecution-service-conviction-rates [6] https://www.cps.gov.uk/publication/code-crown-prosecutors [7] https://www.theguardian.com/law/2018/sep/24/prosecutors-rape-cases-cps-crown-prosecution-service-conviction-rates [8] https://www.theguardian.com/law/2020/jun/30/cps-secretly-dropped-weak-cases-say-rights-groups; https://www.theguardian.com/law/2020/jun/30/cases-dropped-by-the-cps-snapshot-highlights-challenges-victims-face [9] https://www.theguardian.com/law/2018/sep/24/prosecutors-rape-cases-cps-crown-prosecution-service-conviction-rates [10] https://commonslibrary.parliament.uk/is-the-criminal-justice-system-fit-for-purpose/ [11] https://www.lawgazette.co.uk/news/pm-vows-to-get-tough-on-crime-as-he-gives-85m-to-cps/5101132.article [12] https://www.fda.org.uk/home/Newsandmedia/Pressreleases/fda-response-boris-johnson-cps-cash-injection-funding.aspx [13] https://www.theguardian.com/law/2018/sep/24/prosecutors-rape-cases-cps-crown-prosecution-service-conviction-rates [14] https://www.cps.gov.uk/cps/news/cps-announces-five-year-blueprint-prosecution-rape-and-serious-sexual-offences-rasso