CPS statement on the judgment in the judicial review of the prosecution of rape and serious sexual offences

On 26 and 27 January, the Court of Appeal heard a judicial review launched by the End Violence Against Women (EVAW) coalition against the CPS. Their case was that a change to CPS rape and serious sexual offences guidance amounted to an illegal change of approach to prosecuting rapes, which has contributed to falling levels of these cases.

The CPS case was that there has been no change in how we prosecute rape. While revisions were made to our guidance, specifically regarding the removal of the term merits-based approach, this was not a change in policy.

This term was removed because the same principles underpin the Code for Crown Prosecutors - namely whether there is a realistic prospect of conviction based on an objective assessment of the evidence.

This means that an objective, impartial and reasonable jury or bench of magistrates or Judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged - and is the legal test every prosecutor has to follow when making a decision about a case.

Today the Court of Appeal has delivered its judgment which dismissed all claims that the CPS acted unlawfully or irrationally. It also confirms the changes in language to our guidance for prosecutors in 2016 did not change its effect.

In his full response to today’s judgment, 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. 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.”

The arguments:

1. That the removal of the merits-based approach wording was ‘irrational’

One area of concern was that the merits-based approach was removed without gathering enough evidence to assess what the impact of that change would be.

The then-Director of Public Prosecutions, Alison Saunders, and senior leaders within the CPS took the decision to remove the merits-based approach wording on the basis of a legitimate and evidence-based concern, raised in the 2015 Her Majesty's CPS Inspectorate (HMCPSI) report, that prosecutors may mistakenly believe there were two tests to consider when making their legal decisions.

The CPS argued that this in no way amounted to a change of approach, as the principles of the merits-based approach - objectivity and impartiality - underlie the fundamental legal test every prosecutor must follow when making their charging decisions.

To ensure every prosecutor was accurately applying the Code for Crown Prosecutors, the additional ‘merits-based approach’ wording was removed for simplicity. However, as explained above, the principles of this approach apply in every case and are reflected in the extensive guidance and training given to all prosecutors working on rape and serious sexual offence cases.

Today the Court of Appeal has confirmed we were not irrational to take such action - confirming that the evidence shows the Code for Crown Prosecutors was not being understood or applied correctly by prosecutors in 2016, and that it was reasonable for us to remind prosecutors that they should always apply the full Code test. 

2. That the CPS should have consulted stakeholders and considered their public sector equality duty before removing the merits-based approach

Another issue raised was that if the CPS had consulted with stakeholders around the merits-based approach, we would have understood the risks this could have for vulnerable victims of rape.

As this was not a substantial change, only an amendment to ensure the objective Code Test was being correctly applied, the CPS did not have a duty to consult on the issue. When significant changes are made to our legal guidance, we consider the views of all relevant stakeholders and partners. We have only recently finished a consultation on our updated rape and serious sexual offences guidance.

The Court has today confirmed that the DPP did not have a legal duty to consult stakeholders on the change that was made to this guidance.

3. There was a lack of clarity on the changes being made both internally and externally

The EVAW coalition argued there was a ‘lack of clarity’ about the objectives of action taken and what prosecutors were being asked to do, which breached the principles of transparency internally and externally.

The CPS is clear that no clarification was necessary as the removal of the merits-based approach wording did not amount to any change in approach to how prosecutors should make their legal decisions, which is always independently, impartially, and fairly. In fact, this minor amendment was made to simplify the process for our prosecutors to ensure the Code for Crown Prosecutors was being interpreted and applied correctly in every case.

The Court of Appeal has looked in detail at the issues raised and has confirmed that there was no change of policy and practice, and that the DPP's action to clarify guidance for prosecutors was reasonable.

4. The misleading guidance created a real risk of unlawful decision-making

A fundamental argument was that the removal of the merits-based approach wording, combined with RASSO training roadshows and a target conviction rate created a risk of unlawful decision-making.

The removal of the merits-based approach guidance did not amount to a change in how prosecutors make their decisions, as everyone must follow the objective, impartial and independent Code for Crown Prosecutors. Roadshows across the different CPS Areas were held to provide routine training to specialist prosecutors about rape and serious sexual offences, including making impartial and objective decisions on these challenging cases in line with the legal test.

Levels of ambition were briefly used to track outcomes against a range of cases with vulnerable victims including rape, domestic abuse and hate crime. We still monitor outcomes but stopped measuring performance in this way in January 2018 as we recognised it may not adequately reflect that both an acquittal and a prosecutor stopping a case that no longer meets the Code Test can be examples of the system working properly.

Inspectorate reports and internal reviews at the CPS found that there is no evidence to demonstrate prosecutors are employing a more risk-averse ‘book-makers approach’. This approach contradicts the legal test which sets out how all prosecutors must be impartial and objective when making their decisions. There is extensive policy guidance, training and practice given to ensure this happens in every case.

Routes are available to scrutinise decisions not to prosecute, including the Victims' Right to Review, but there is no evidence that the correct application of the Code delivers decisions which are illegal. Indeed, the HMCPSI 2019 review, which randomly selected cases, found that 98% of the decisions were correct, which was an improvement on the previous review they completed in 2015.