Original article by Harriet Bland can be found at The Justice Gap website.

At the end of last month, the End Violence Against Women Coalition (EVAW), represented by Centre for Women’s Justice (CWJ), launched a legal challenge of the Crown Prosecution Service’s (CPS) charging policy in cases of rape and serious sexual offences – as reported on the Justice Gap. Harriet Bland reports.

This challenge comes in the wake of the revelation that, despite numbers of reported rapes rising by 173% since 2014, the number of cases in which the accused is actually charged with an offence has plummeted by 44% over the same period. This is the lowest rape charging rate since records began.

The CPS denies there has been any change in policy.

The CPS, led by the Director of Public Prosecutions, Max Hill QC, is the body that has the power to decide whether or not an individual is charged with a crime. After a crime is reported to or discovered by police, and evidence gathering has begun, the police will refer cases to the CPS to apply the legal test for prosecutors so they can decide whether or not to proceed to charge the suspect. The prosecutor must be satisfied that there is enough evidence to provide a realistic prospect of conviction.

Historically, the test for charging in rape and serious sexual assault cases was no different than that for other offences. Prosecutors would consider the likelihood of achieving a conviction in the same way for these cases as for any other.

However, under the tenure of Keir Starmer QC as DPP between 2008 and 2013, the approach shifted. Starmer oversaw the introduction of something new: the ‘merits-based’ approach. This was a method of applying the original test which forced prosecutors to think differently; when considering how likely a conviction was in a given case, prosecutors needed to imagine a jury free from the myths and stereotypes that often clouded their judgement in rape cases. This approach meant that decisions on the likelihood of a jury to convict should rest on how convincing the evidence is likely to appear to them, rather than, for example, whether the victim’s evidence would be taken less seriously because she has struggled with mental health difficulties, or was in a relationship with her rapist at the time of the offence. The prosecutors could not simply bet on which cases would succeed based on who would appeal to jury prejudices.

Over the last three years, however, the merits-based approach has been steadily erased from CPS policy. The CPS argues that this is not a change in policy, as the merits-based approach is simply guidance for how to interpret the pre-existing Code for Crown Prosecutors. What this doesn’t explain, however, is why the data shows such a drop in rape charging decisions over the same period.

EVAW’s lawyers at CWJ have collated a dossier of 21 cases where decisions have been made not to charge despite compelling evidence, and in some cases where men were known to be violent and some suspected of being serial offenders.

Gina*, a woman who was raped repeatedly by her husband, found that the case against her husband was dropped by the CPS because they felt that a jury might not understand the dynamics of a coercive and controlling relationship. Another woman, Rebecca, was raped at knifepoint and held prisoner for two days by her boyfriend, a man who was known by police to be violent. Her case was dropped, despite a large volume of evidence, on the grounds that WhatsApp messages she had sent to pacify her attacker could be misinterpreted by the jury.

EVAW says that these cases demonstrate the risks of removing the merits-based approach: prosecutors are now taking myths and stereotypes which may be held by jurors into account when they consider whether a conviction is realistic. This has led some to suggest that rape has been effectively decriminalised, as charging decisions are based on the prejudices surrounding rape rather than on the law.

The success of EVAW’s legal challenge is uncertain. They are currently awaiting a decision from the court about whether their case can go ahead. ‘While EVAW and CWJ are only two small organisations, going against the legal giant of the CPS, we remain undaunted by the prospect as we know their failings cannot continue unchecked,’ commented Rebecca Hitchens, EVAW campaigns manager.

‘We have heard from so many women who’ve been raped, and from our member organisations who support survivors of rape, telling us about cases being dropped for unfathomable reasons. Given the strong public interest in this case we are hopeful that this matter goes before a judge at the earliest possible opportunity.’ Rebecca Hitchens, EVAW campaigns manager

If EVAW’s challenge is not successful, it seems unlikely that the merits-based approach will return. It is worth considering why the CPS have pursued this change. At present the internal decision making on this issue is opaque, but CWJ’s director, Harriet Wistrich, has stated that they have secured testimony from a whistleblower, which may reveal more of the internal dynamics of the organisation.

One suggestion is that the change in approach was an attempt to raise the conviction rate for rape, which has remained notoriously low for decades in comparison to other offences. An internal source from the CPS revealed to The Guardian in September 2018 that prosecutors had been urged to take ‘weak cases out of the system’ to improve conviction rates. Alison Levitt QC, the DPP’s principal legal advisor during Starmer’s tenure, commented on this revelation that, ‘It is easy to prosecute a case where a so-called ‘perfect’ victim is violently attacked by a stranger. The challenge for prosecutors is how to prosecute cases where the victims are vulnerable and arguably more complicated, for example if they have mental health difficulties or chaotic personal circumstances. A system that only prosecutes safe cases is sending attackers the message that vulnerable people are open to abuse as the CPS will not prosecute.’

The conviction rate has risen slightly, from 56.9% in 2014-15 to 63.4% in 2018-19, but this is something of a pyrrhic victory if it is achieved only by reducing further the number of rape victims who see their attacker face court. It has also only just reached the high of 63.2% achieved in 2012-13, during the period the CPS was using the merits-based approach.

The CPS continues to deny that there has been any change in approach, blaming the statistics on a range of factors including police decisions to take no further action, and an increase in digital data to consider causing delays in decisions to charge. A judgement from the court on whether the case can proceed is awaited.

*Names have been changed to protect anonymity