Rape and Sexual Offences - Chapter 2: Applying the Code for Crown Prosecutors to Rape and Serious Sexual Offences

• The evidential stage of the Code in Rape and Serious Sexual Offences
• The Public Interest stage of the Code in Rape and Serious Sexual Offences
• Rules governing referrals and notifications to Chief Crown Prosecutor (CCP)/Deputy Chief Crown Prosecutor (DCCP) and briefings to the Director of Legal Services (DLS)
• Out of court disposals

The starting point for all prosecutions is the Code for Crown Prosecutors (the Code) The Code is the basis of the decision to prosecute and no legal guidance replaces it or takes precedence over it.

Prosecutors must ensure that the law is properly applied; that relevant evidence is put before the court; and that obligations of disclosure are complied with. They must comply with any disclosure guidelines issued by the Attorney General and with the Criminal Procedure Rules currently in force.

CPS policy and legal guidance is intended to support prosecutors in their decision making and in the proper application of the Code.

The test for rape and serious sexual offences prosecutions is the same as for any other offence:

• the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and
• the prosecutor is satisfied that a prosecution is required in the public interest.

In accordance with paragraph 3.3 of the Code prosecutors must have regard to the impact of any failure on the part of the police to pursue an advised reasonable line of inquiry or to comply with a request for information, when deciding whether the application of the Full Code Test should be deferred or whether the test can be met at all.

The evidential stage of the Code in Rape and Serious Sexual Offences

Key principles can be summarised as follows:

• The evidential stage of the Code test requires prosecutors to conduct an “objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It 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."
• These cases require a careful and balanced assessment of all relevant evidence, including that related to the accused or the suspect, in order to ensure that the right cases are prosecuted and there is a fair trial. This might involve scrutiny of accounts given of the event, forensic examination and careful consideration of digital material and CCTV coverage. It also includes consideration of the reliability and credibility of witnesses, and advising on actions that can be taken to address weaknesses in the case.
• Prosecutors must not allow rape myths and/or stereotypes to influence their evaluation of evidence nor must they apply a ‘bookmaker’s test’ where an attempt is made to second-guess potential jury prejudice.
• The Code requires prosecutors to consider what the defence may be and factors which may potentially undermine the prosecution case. This does not mean that points in the suspects’ favour will necessarily be fatal to the prosecution. If reasonable belief in consent is raised as a defence, prosecutors should consider the guidance provided in Chapter 6.
• Prosecutors must assess each undermining feature objectively and then the cumulative effect in the overall context of the strengths of the case. Ultimately, a prosecutor must decide if the combined effect of such factors after an objective analysis is such that the evidential stage is not met.
• Prosecutors must not introduce a requirement for corroboration in the review process - one person's word can be enough (and often is) but the quality of the evidence must be assessed in the manner described above
• Prosecutors must consider whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and advise on any further reasonable lines of inquiry.
• Once it becomes clear that a case is not going to meet the Code Test it is important to take a decision as soon as possible so that those impacted can be informed promptly.

Assessing the likely impact of each piece of information or evidence

Relevant questions for the prosecutor to consider include:

• Is it relevant?
• Is it admissible?
• If it is admissible how would be it be admitted and what affect might that have on its impact?
• Is it credible?
• Is it reliable?
• Does it come from an independent source?
• How persuasive is it, in objective terms?
• How important is it in relation to the issues?
• How significant is it in the context of the other evidence in the case?

Relevance and admissibility

Where evidence is clearly inadmissible, such as in cases in which there is a clear statutory prohibition, such as the prohibition limiting the admissibility of youth convictions under section 108(2) of the Criminal Justice Act 2003, the evidence is unlikely to be capable of strengthening the prosecution case. However, whilst inadmissible evidence is unlikely to be capable of strengthening the Crown’s case, it may be capable of undermining the prosecution case, especially if it could provide evidence that could allow the defence to apply to stay proceedings as an abuse of process. However, prosecutors should caution against giving undue weight to the prospect of an abuse of process argument. It should be noted that where the Code Test appears to be met, it will only be in the most exceptional cases, where the prosecutor can say with a high degree of certainty that the court will rule that a prosecution is proved to be an abuse of process, that a decision not to prosecute is likely to be considered valid Guest v DPP [2009] EWHC 594 (Admin).

How persuasive is it likely to be?

Although you may conclude that evidence is relevant and admissible it does not follow that it will necessarily be persuasive. Not every undermining factor will be fatal to the prospects of conviction.

It is essential that any assessment of an undermining factor takes account of how significant it is in relation to the issues and in the context of the other evidence. R (FB) v Director of Public Prosecutions [2009] EWHC 106 (Admin).

One word against another

Corroboration is not required as a matter of law. Many RASSO cases will feature limited or no corroborative evidence. It is important to try and identify supporting evidence in such cases. It is essential that prosecutors do not introduce a requirement for corroboration in their review process or identify the ‘one versus one’ feature of the case as a negative in their assessment of the evidence. One person's word can be sufficient to provide a realistic prospect of conviction. A jury can and does convict in such cases.

The issues may be lack of consent or reasonable belief in consent. Even in these cases, it is not unusual that the evidence consists of more than merely two opposing counts of equal credibility. There may be evidence of the complainant having sustained injuries; the suspect’s account is implausible or is undermined by other evidence; or there are partial admissions which support the complainant’s account. First complaint, manner and demeanour, and consistency may also be important.

Where it is one person’s word against another’s then a jury will look to other factors to help decide whether the prosecution has proved its case. The review should disregard factors that are irrelevant or based on myths or stereotypes (see Chapter 4 for further information on tackling myths and stereotypes). We should expect juries to be properly directed about any matters that might give rise to misconceived assumptions (e.g. delayed complaints).

The defendant’s interview

The prosecutor must consider the account provided by the suspect in interview. This will help to identify the issue in the case and will assist in establishing what reasonable lines of enquiry should be pursued. Prosecutors should assess the credibility and reliability of the suspect’s account by considering all the evidence available. Prosecutors should be aware that the jury is entitled to reject the suspect’s account based on the complainant’s evidence alone.

When reviewing a case prosecutors should consider the potential significance of a no comment interview or an initial failure by the suspect in interview to admit key facts such as sexual activity prior to the return of forensic evidence. Where these circumstances apply, this is likely to strengthen the prosecution case and an adverse inference may be drawn by the court.

There will be occasions where the suspect is telling the truth about some things but lying about others. As with inconsistent witnesses, the prosecution can rely on the parts of the suspect’s interview which help the prosecution case (e.g. the fact of sexual activity), and reject the parts the prosecution say are untrue (e.g. a suspect’s reasonable belief in consent).

Contamination and collusion

The issue of potential contamination and collusion arises frequently in multi-victim child abuse cases (e.g. where all the children are from the same family or were at the same school). Prosecutors must consider whether there is any evidence of contamination or collusion that may fall to be disclosed or that may impact on the evidential stage of the Full Code Test. However, they should avoid unsubstantiated speculation. Prosecutors must view the evidence they have objectively as each case is determined on its own facts.

Credibility, reliability and the approach to inconsistency

Prosecutors should consider whether there is any evidence that suggests the witness’s account is not credible or plausible. However, it is essential that myths and stereotypes do not play a part in this assessment - see Chapter 4 for further information.

Jurors are bound to consider internal and external consistency, particularly where there is no other direct evidence. It follows that prosecutors should consider the likely impact of any inconsistencies. Evidence of inconsistency does not necessarily mean that an account is unreliable or lacking credibility.

• It is important to distinguish between actual inconsistency and potential inconsistency.
• Potential inconsistency encompasses two main possibilities (neither of which should be elevated to the status of actual inconsistency), described, for these purposes, in these terms:
  • Apparent inconsistency, where the point depends on the reliability of the report against which an account is being compared and
  • Presumed inconsistency, where, for example, a jury may be invited to conclude that an action is inconsistent with a state of mind being described.
• With apparent inconsistency it is important to consider the possibility that other reports may not be accurate, independent or reliable - not every apparent inconsistency is real.
• In any event the mere fact that a complaint emerges in an inconsistent way does not mean it is untrue. There are a number of reasons why a complaint may emerge in an inconsistent way and those are matters on which a jury may be directed including the impact of trauma on memory (see section entitled ‘impact of trauma’ below).
• With presumed inconsistency it is critical that prosecutors do not apply myths and stereotypes: juries would be warned not to do so.
• It would, though, be wrong to ignore levels of inconsistency which, even with the benefit of a warning about myths and stereotypes, are nonetheless likely to prove a significant cause of concern to any jury.

The impact of trauma

Prosecutors need to be aware of the impact of trauma for many reasons, including:

• To ensure the quality of prosecutor decision-making is as informed as possible
• To highlight case building opportunities.

Trauma does not have a uniform impact on victims. In order to evaluate evidence in accordance with the Code, prosecutors need to understand the complexities surrounding the impact of sexual assault and specifically the impact of trauma on memory, behaviour and demeanour. It may also impact on candour, for example where a complainant is reluctant to disclose full details of the incident. The evidential stage of the Code requires prosecutors to consider whether evidence is reliable or credible. To reach a Code compliant decision, prosecutors will need to be aware of all the potential impacts of trauma to fairly assess the credibility and reliability of the complainant.

Where, for example, there are inconsistencies in the recorded accounts of complainants (e.g. between the initial account provided to the first response officer and the subsequent ABE interview), prosecutors lacking an understanding of the neurological impact of trauma and how it can account for differences in the way an incident is recalled, disclosed or developed by a complainant, may reach erroneous or unfair conclusions about the reliability and credibility of the complainant’s evidence.

When a person first reports a sexual offence, he or she may be upset, embarrassed, possibly frightened or angry. He or she may say the most recent thing that happened and if there has been a series of events, this won’t always be the most serious incident; they may only give half the story because they don’t know how the listener will react; a young person or a child may deny that anything happened at all, through shame or fear of the consequences. Prosecutors cannot assume that at this early stage the complainant is always able to give a coherent, chronological account for evidential purposes.

By the time they give their ABE interview, he or she may have adjusted to the idea of speaking out about what happened; they will have begun to gather and order their memories and most importantly, they are taken through their account by a trained interviewer who will guide them into giving a full account in a chronological order specifically for use in a criminal trial. However, even then, if there have been a series of rapes, perhaps over a long period of time, or for other reasons it may still not be possible for a complainant to recall precisely what happened and when. It is important that each case is considered on its own merits and the account must be considered in the context of all the other evidence.

It is important that prosecutors do not miss opportunities to strengthen the prosecution case by securing and, where conditions for admissibility are satisfied in accordance with the case of R v Adam Eden [2011] EWCA Crim 1690, adducing evidence relating to psychiatric injury that may have resulted from the traumatic impact of the assault. Whilst trauma is normal and will not always result in a diagnosed mental health condition, studies point towards there being a high prevalence of PTSD diagnoses following sexual assaults, impacting upon a significant proportion of victims. A Havens and UCL study published in 2018 included the finding that 80% of the young female victims of sexual assault were diagnosed with a mental health disorder four to five months after the incident.

Prosecutors are referred to the Psychological Evidence Toolkit for Prosecutors which explores a range of difficulties some of which precede and some of which may arise as a consequence of the sexual assault.

The CPS has produced a training video considering the impact of trauma on memory.

Prosecutors must have an understanding of the vulnerability of victims and the impact of trauma and when evaluating a case and should refer to the Toolkit for prosecutors on VAWG cases involving vulnerable witnesses which sets out the issues to consider relating to a vulnerable victim’s account and provides guidance in relation to how offenders might exploit these vulnerabilities to avoid detection.

Use of a pre-trial witness interview (PTWI)

If the prosecutor has identified an important issue which has not been resolved by the police investigation and is critical to the charging decision a PTWI should be considered. Guidance is here.

Highlighting to police the potential availability of Sexual Risk Orders in the event of NFA

Sexual Risk Orders (SROs) can be applied for by a Chief Officer of Police or the Director General of the National Crime Agency by way of complaint to a Magistrates’ Court. These orders are generally made against an individual who has not been convicted or cautioned for the offence but who nevertheless is thought to pose a risk of harm to the public in the UK and or children or vulnerable adults abroad. Where a prosecutor has made a decision that there is insufficient evidence upon which to prosecute a case he/she should in appropriate cases remind the police of their ability to apply for an SRO.

The Public Interest stage of the Code in Rape and Serious Sexual Offences

It does not automatically follow that if there is sufficient evidence, there will always be a prosecution. Prosecutors must go on to consider whether a prosecution is required in the public interest by assessing the factors set out in paragraph 4.9 of the Code.

A prosecution will usually take place unless there are public interest factors tending against prosecution that outweigh those tending in favour. Given the seriousness of rape and sexual offending a prosecution will normally be required when the evidential requirements under the Code are met. There are, however, many factors, which may influence consideration of the public interest in prosecution, especially in relation to offending by youths.

Paragraph 4.9 of the Code sets out the factors a prosecutor must address in their review when considering whether it is in the public interest to proceed with a prosecution. Additional public interest factors listed under the specific offence categories in the Key Legislation section of this guidance should also be considered when determining whether the public interest supports a prosecution.

Rules governing referrals and notifications to Chief Crown Prosecutor (CCP)/Deputy Chief Crown Prosecutor (DCCP) and briefings to the Director of Legal Services (DLS)

Prosecutors must be familiar with the internal rules governing authorisation to charge, case handling decisions and briefings to the DLS which can be found here.

The following cases which may be dealt with in a RASSO unit must be referred to the Chief Crown Prosecutor (CCP) for approval of the charging decision and consultation on subsequent decisions which terminate proceedings or substantially alter the charge:

• All cases where there is a decision to charge in a case alleging perverting the course of justice arising from a false or retracted complaint of rape or other sexual offence or domestic abuse;
• Female Genital Mutilation cases;
• Cases involving the intentional or reckless sexual transmission of STIs;
• Any case where both the suspect and the complainant in a sex case were under 13 at the time the offence was committed;
• Any publications that are likely to lead to the identification of a complainant in a sexual offence, or any other breaches of reporting restrictions;
• Decisions on whether to appeal a terminatory ruling;
• All decisions to reinstitute proceedings other than VRR cases;
• Allegations of rape involving conditional consent.

In certain cases, a briefing must be sent to the DLS confirming that the CCP has approved the charge or substantial change. A brief outline of the case and decisions together with an indication of when the decision will be actioned should be sent pre charge in the following cases:

• All cases where there is a decision to charge in a case alleging perverting the course of justice arising from a false or retracted complaint of rape or other sexual offence or domestic abuse;
• Female Genital Mutilation cases;
• Cases involving the intentional or reckless sexual transmission of STIs;
• Any publications that are likely to lead to the identification of a complainant in a sexual offence, or any other breaches of reporting restrictions;
• Decisions on whether to appeal a terminatory ruling (briefing can be sent after the application to appeal given the time constraints).

The following cases which may be dealt with in a RASSO unit must be referred to the DCCP for approval of the charging decision and consultation on any decision which terminates proceedings or substantially alters the charge:

• Cases involving applications to the Attorney General for Nolle Prosequi;
• Reinstitution of proceedings where there has been a request for VRR;
• Misconduct in public office.

The following cases which may be dealt with in a RASSO unit should be notified to the CCP/DCCP:

• Cases involving allegations of sexual offences committed abroad;
• Any serious allegation against someone serving with the police;
• Any cases that raise issues of liability under sections 5(1)(a) or sections 5(1)(c) of the Sexual Offences Amendment Act 1992, or the defence under section 5(5) of the Act, or any unusual complexities;
• Cases that may raise national media interest.

Out of court disposals

The Rape Protocol sets out the agreed approach to out of court disposals. Any decision to resolve a case by way of an out of court disposal will depend on the circumstances of the case. Prosecutors should refer to the Directors Guidance on Charging 6th Edition for additional information.

When considering diversion in youth cases prosecutors should refer to the Youth Cautions section of the Youth Offenders legal guidance.

In the event that an allegations results in no further action, Sexual Risk Orders (SROs) remain available, They can be applied for by a Chief Officer of Police or the Director General of the National Crime Agency by way of complaint to a Magistrates’ Court. These orders are generally made against an individual who has not been convicted or cautioned for the offence but who nevertheless is thought to pose a risk of harm to the public in the UK and or children or vulnerable adults abroad. Where a prosecutor has made a decision that there is insufficient evidence upon which to prosecute a case he/she should in appropriate cases remind the police of their ability to apply for an SRO.