Court of Appeal rejects case over alleged CPS change in rape and sexual assault prosecutions

Anti-violence against women campaigners have today lost a legal challenge against the CPS over claims of a change in policy on prosecuting alleged rapes and other serious sexual offences.

The End Violence Against Women Coalition (EVAW) argued the CPS had ditched its ‘merits based’ policy on prosecuting serious sexual offences between 2016 and 2018 and had instead adopted a more ‘risk adverse’ approach.

The EVAW told top judges that the alleged change in policy had ‘raised the bar’ for rape prosecutions.

And they said this had led to a ‘shocking and unprecedented decline’ in the rate and volume of rape offences charged.

The CPS admitted it had removed the term from its guidance, but said it had not ‘substantially changed its policy’.

It said that the principles of the merits based approach remain enshrined in the Code for Crown Prosecutors,

Today a Court of Appeal judge ruled in the favour of the CPS, saying it was ‘not unlawful to decide to remove references in its guidance’.

But campaigners criticised the judgment, describing it as ‘another establishment betrayal of victims of violence against women and girls’. 

Kate Ellis, the solicitor for End Violence Against Women (EVAW) Coalition pictured outside the Royal Courts of justice in London when the case was brought last month

Kate Ellis, the solicitor for End Violence Against Women (EVAW) Coalition pictured outside the Royal Courts of justice in London when the case was brought last month

Kate Ellis, the solicitor for End Violence Against Women (EVAW) Coalition pictured outside the Royal Courts of justice in London when the case was brought last month

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.

They alleged the CPS had moved away from its merits-based approach, which encourages prosecutors to adopt a slightly different method to the standard prosecution process when dealing with serious sexual offences.

The traditional test focuses on the likelihood of achieving a successful prosecution – with the bar set at whether or not there is a 50 per cent of a conviction. This test is often measured against the success or failure of previous similar cases.

What is the merits based approach to prosecution? 

The merits based approach encourages prosecutors to move away from the standard prosecution process, when dealing with serious sexual offences.

The traditional test focuses on the likelihood of achieving a prosecution and whether or not there is a 50 per cent chance of conviction.

This test is often measured against the success or failure of previous similar cases.

But under the merits based approach, introduced by Labour leader Sir Keir Starmer in his time as Director of Public Prosecutions, prosecutors are instead asked to judge a case on its merits and consider how convincing a victim’s evidence is to a jury.  

This included ‘putting aside myths and stereotypes’ about rape cases and rape victims, EVAW’s lawyer Phillippa Kaufmann QC told the Court of Appeal earlier this year.

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 merits based approach, which created a risk that prosecutors ended up not prosecuting cases that did meet legal tests to do so.

However the CPS has argued that its approach has not substantially changed and lawyers for the CPS have pargued the case was not suitable for legal challenge and asked the Court of Appeal to dismiss the claim. 

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But under the merits based approach, introduced by Labour leader Sir Keir Starmer in his time as Director of Public Prosecutions, prosecutors are instead asked to judge a case on its merits and consider how convincing a victim’s evidence is to a jury. 

This included ‘putting aside myths and stereotypes’ about rape cases and rape victims, EVAW’s lawyer Phillippa Kaufmann QC told the Court of Appeal earlier this year.

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

Ms Kaufmann said that from September 2016, it was decided by the CPS to take a ‘fundamentally different course’, and ‘do away’ with the merits based approach.

EVAW argued that the approach had been dropped because bosses had removed it from official prosecution guidance. 

The group’s lawyers said this unlawful approach has led to a ‘shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS’.   

They argued that between 2009/10 and 2016/17, there was an average of 3,446 prosecutions per year.

And they pointed to figures showing that in 2017/18, the annual volume of prosecutions had fallen by almost a quarter.

By 2018/19 it had dropped by over a half – with only 1,758 prosecutions being pursued by the CPS, despite a total of 55,000 allegations being reported that year to the police. 

Figures from 2019/20, they said, showed that just 3 per cent of cases reported went on to be charged. 

The CPS, however, said there has been no significant change in policy.

They 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 judgment on Monday, the Court of Appeal dismissed the EVAW’s case, ruling that the CPS did not change its policy in relation to the prosecution of sexual offences.

The Lord Chief Justice Lord Burnett said in the ruling that the removal of references to the ‘merits based approach’ in guidance for prosecutors ‘was not a change of legal substance’.

The judge, sitting with Lord Justice Holroyde and Lady Justice Elisabeth Laing, said: ‘We do not consider that it was unlawful to decide to remove references to the merits-based approach from the Director of Public Prosecution’s legal guidance.

A Court of Appeal judge has today thrown out a legal challenge against the CPS over claims of a change in policy on prosecuting alleged rapes and other serious sexual offences

A Court of Appeal judge has today thrown out a legal challenge against the CPS over claims of a change in policy on prosecuting alleged rapes and other serious sexual offences

A Court of Appeal judge has today thrown out a legal challenge against the CPS over claims of a change in policy on prosecuting alleged rapes and other serious sexual offences

‘Stripped of references to the merits based approach, the remaining guidance is not unlawful.’

Lord Burnett added: ‘We reject the submission that the decision created any risk of systemic illegality.’  

Andrea Simon, Director of EVAW, today said the organisation was ‘deeply disappointed’ by the outcome.

She said: ‘We have no regrets about holding institutions accountable for the effective decriminalisation of rape. 

‘This legal challenge brought huge public awareness to what is going on with rape, it brought about changes to prosecution guidance and harnessed political attention to women’s struggle for justice.  

‘Throughout our legal challenge, we have been overwhelmed by the huge outpouring of public support for our case, including the donations by members of the public deeply affected by and concerned about justice for victims of rape raised on our Crowdjustice page.’

Ms Simon said the group would now be liable to cover the CPS’ legal costs.

But she added that the group hoped the CPS would wave this and allow the money to be given to women’s organisations to help rape victims.

The EVAW has said it is considering an appeal against today’s judgment.

Responding to the result of today’s hearing, Director of Public Prosecutions, Max Hill QC, said: ‘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.  

‘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. 

‘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.’ 

IN FULL: The comment of Director of Public Prosecution, Max Hill QC

In a statement following today’s court hearing, the 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.

The Director of Public Prosecutions Max Hill QC

The Director of Public Prosecutions Max Hill QC

The Director of Public Prosecutions Max Hill QC

‘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.

‘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.

‘The landscape is continually evolving, and our response must adapt to reflect external factors such as ever-growing volumes of digital evidence.

‘We must respond to changes in the law as well as changing behaviours, the growing understanding of the impact of trauma, evolving myths and stereotypes and our increasingly digital society.

‘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.

‘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.’

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