Evidence of CPS Failure on Rape

News
Written By Capella Rew

Key Evidence (links to full bundle can be found at the bottom of the page)


Synopsis of EVAW’s Legal Challenge and Evidence Dossier

What the case was about: 
Whether there had been a change of approach by the Crown Prosecution Service from (2016/17 onwards) to the prosecution of Rape and Serious Sexual Offences (RASSO) cases – effectively a perceived shift away from the ‘merits-based approach’ to charging decisions – and if so whether that change of approach had been brought about unlawfully. 

Put simply, EVAW sought to raise concerns that as a consequence of the perceived change in approach, prosecutors had become more ‘risk-averse’ in their approach to charging decisions. We also argued that – even if the court did not think it was able to determine whether prosecutors had become significantly more risk-averse in practice – there was at least a risk that this had happened, and the secretive and impromptu way in which the CPS had brought about a change in approach (likely to be so controversial in the women’s sector) was in itself unlawful.  

Since the CPS persisted in denying to the court that trainings and changes to guidance delivered amounted to a material change in policy or practice, EVAW sought to rely on a huge volume of evidence to show that – in effect, even if not in intention – there had been a significant change in approach, that could be traced back to CPS Director of Legal Services Greg McGill’s ‘roadshow’ trainings for RASSO prosecutors in 2016/17 and the piecemeal removal from guidance of all reference to the ‘merits-based approach’ in 2017/18. 

We were ultimately refused permission for the judicial review claim to be heard, not because the court fundamentally disagreed with our evidence, but because it reached the conclusion (which we disagree with) that faced with a denial by the CPS that there had even been any change of approach, it was bound to treat that assertion by the CPS in good faith – despite a substantial body of evidence to the contrary.

EVAW is represented by lawyers at the Centre for Women’s Justice. 

What we found: EVAW relied upon FIVE main strands of evidence:

  • From the very beginning of the case EVAW worked with a whistle-blower – an experienced RASSO prosecutor from within the CPS – who was identified in the proceedings only by the cipher ‘XX’ as they were afraid that identification would result in victimisation/the loss of their employment. 

    ‘XX’ provided an anonymous statement in which they explained, in essence, that: 

    • As an experienced RASSO prosecutor, they understood the message of Greg McGill’s roadshow trainings for RASSO prosecutors in 2016/17 to represent a clear, intentional and significant change in approach, directing RASSO prosecutors away from ‘merits-based approach’ that had previously been a central plank of RASSO trainings and guidance; 

    • They were concerned about the implications of these roadshows which they thought would encourage prosecutors to be risk-averse in their approach to prosecutorial decisions;

    • They had discussed the reactions to the roadshows with other RASSO prosecutors who also expressed the view that this represented a change of approach;

    • They considered the change of approach to have been further cemented by the removal of references to the merits-based approach in guidance.

    EVAW also sought to rely on a second witness statement from XX, and on a witness statement from another RASSO prosecutor who came forward (‘YY’), explaining that the current toxic culture within the CPS was likely to prevent RASSO prosecutors from raising or escalating any concerns about a change of approach with their managers. This was important because Greg McGill had claimed that if there had been any perception/concern internally that practices were changing, CPS management would know about it. XX and YY said that this was inherently unlikely. 

    Neither XX nor YY were, unfortunately, able to say as much as they would have liked to say about the change of approach – or rely on all of the internal material that they would have liked to – for fear of being identified. Their evidence was in our view however very significant.

  • It became clear to us when the CPS’ 2017/18 VAWG report was published that there had been an alarming, precipitous drop in the rate and volume of RASSO prosecutions from the previous year. London-based Rape Crisis centres and others were also reporting that they were seeing hardly any of their service-users’ rape complaints resulting in a decision to charge. Volumes continued to fall dramatically quarter on quarter over 2018/19 and have now stagnated going into 2019/20. XX had already indicated to us that, for the reasons later set out in their statement, they were not surprised by this drop.

    EVAW therefore instructed expert statistician/econometrician from Oxford University, Professor Abigail Adams, to provide an expert report looking at patterns in the data.  

    Prof Adams was asked to examine all of the data in the CPS’ annual VAWG reports from 2012/13 through to 2018/19, together with:

    • Statements made by CPS representatives purporting to explain the fall in rates/volumes of RASSO prosecutions (largely by blaming the police, or attributing it to rising reporting rates, and/or claiming that the fall was due to a rising volume of cases that had been caught in a backlog or administratively finalised, and might still be charged); 

    • Information disclosed by the CPS in the course of the legal proceedings, including a confirmed timeline setting out dates and locations of Greg McGill’s ‘roadshow trainings’ and of changes to prosecutorial guidance; 

    • Various other published data/analysis available regarding changing CJS outcomes; and

    • Examples of evidence (public or otherwise) obtained by the Claimant suggesting that there had been a change in approach, implemented through the roadshows and the changes to the guidance.

    Prof Adams was asked to conclude, if possible, ‘whether the available evidence is consistent with a change in Crown Prosecution Service [‘CPS’] practice toward the charging of rape (and other serious sexual offences)’, treating as her ‘index events’ for that change Greg McGill’s roadshows (rolled out nationally in Autumn 2016 and across 2017) and the removal of guidance relating to the MBA (effected in a piecemeal fashion in May 2017, November 2017, and Autumn 2018).

    To summarise her findings very briefly, Prof Adams concluded that the available evidence was consistent with a change in practice by the CPS following the policy decisions of Greg McGill of 2016/17. 

    This conclusion was based in large part on the fact that none of the alternative explanations that had been provided by the CPS for the drop in volumes were consistent with the data. For example, she identified that – particularly in recent quarters – there had been a rise in the number of cases ‘NFA’d’ by the CPS. This was obviously difficult to reconcile with the CPS’ claims that it was the police who were NFA’ing more cases, not the CPS; and with their claims that any drop in prosecution volumes was attributable to cases still being under investigation/admin-finalised which might yet result in a charging decision. 

    At the very least, the numbers of cases delayed, admin-finalised or NFA’d by the police could not explain a drop in prosecution volumes of such ‘magnitude’.

    Our expert’s analysis was, essentially, not disputed by the CPS. They simply contended that there could be a myriad of reasons for the drop in prosecutions which could not be explained simply by reference for the data. 

  • EVAW also gathered over 20 RASSO case studies (collated by the Centre for Women’s Justice with the consent of survivors) in which decisions had been made by the CPS not to proceed with a prosecution.

    In some cases, a decision had been made not even to charge the perpetrator, following a referral by the police; in others, the perpetrator had initially been charged but the prosecution had then be discontinued before trial. All of the CPS decisions in question had been made since 2016/17 when we say the ‘change in approach’ was rolled out. 

    We think that what these case studies show is a concerningly risk-averse approach in practice. We could not prove, of course, that the RASSO prosecutors who had made the decisions in each case had attended Greg McGill’s roadshows, or that they would have made less risk-averse decisions had this case arrived on their desk five years previously.  We did however think that the cases would give the court (and the public) a better understanding of the kind of risk-averse decision-making that we were worried about. 

    There is undoubtedly a range within the dossier: some of the cases are perhaps more ‘typically’ challenging cases (e.g. involving complainants who due to intoxication are unable to remember the entirety of the incident; cases where there are limited sources of evidence available at the outset beyond the two parties’ accounts), but where there appears to have been perhaps little willingness by police and prosecutors to try and overcome the difficulties by making the best of the credible evidence that is available.

    Some cases however appeared to involve some fairly strong/compelling prima facie evidence, which made the decision not to proceed seem wilfully or absurdly risk-averse. There were for example cases involving multiple victims of the same perpetrator; suspects who had been caught out blatantly lying about the events; contemporaneous proof of injuries or damage to clothing; proof of the perpetrator having produced a weapon; self-incriminating apologies from the suspect; multiple consistent disclosures having been made by the complainant to third parties before reporting to the police; and/or circumstances in which it seemed highly highly implausible that the complainant would have consented. 

    The CPS decision letters which had been sent to the complainants by way of explanation – and on which we relied as evidence – regularly reflected rape myths and stereotypes (sometimes very explicitly) which are specifically prohibited in CPS guidance. Very frequently, the fact of ‘one person’s word against another’ was also relied upon to suggest that a prosecution was impossible in these circumstances (which is not true) – or used in circumstances where ‘one person’s word against another’ was an unfair characterisation given that there was also independent evidence supportive of the complainant’s account. Often, overwhelming emphasis is also placed – after a very intrusive investigation – on circumstantial factors seen as undermining of the complainant’s credibility (e.g. based on her personal life/prior communications with the suspect or other men) while, conversely, little or no weight is placed on potential flaws in the defence case.

    Harriet Wistrich (CWJ) gave a detailed statement in the proceedings in which she broke down some of the common themes and trends in the cases (and in the language of the decision letters), and explained why they are of particular concern. 

  • In the witness statement that Harriet provided in support of EVAW’s claim, she provided evidence (largely anecdotal) of the key issues reported by ISVA services etc on the frontline to CWJ in the course of CWJ’s collaborative work with women’s sector orgs which were considered relevant to the claim.

    Two key themes identified were:

    • Unsurprisingly, universal and very significant concern/lack of confidence in the CPS across the women’s sector arising about the declining volume in prosecutors. Concerns arose both from the catastrophic drop in charging decisions, and from the CPS’ apparent unwillingness to address the problem;

    • A widely held perception that the CPS’ more risk-averse approach to decision-making has had major repercussions at the level of police decision-making, too.  

    We considered it very important for us to try and evidence the second point (and this is still clearly a very important issue) given that the consistent explanation given by the CPS publicly – and seemingly to the Rape Review – as to the drop of volumes of prosecutions is fewer referrals to the CPS from the police; the police NFA’ing more cases etc.

    What we have been hearing at CWJ however – from ISVAs, and in fact directly from the police in some cases that CWJ have been working on – is that unsurprisingly, the police are ‘taking their lead’ from the CPS and thus being more risk-averse in their own approach to cases. The experience of from lawyers/advocates who handle large volumes of rape cases is certainly that the police are referring fewer cases to the CPS but that this is often because they are NFA’ing them themselves on the basis that if they are referred to the CPS there is little to no prospect that the CPS will charge – or because ‘Early Investigative Advice’ received from the CPS is often overwhelmingly negative. 

    Again, in some cases referred to by Harriet and Kate (CWJ) in witness evidence, police officers had given explanations to this effect for their decisions not to proceed with cases. Some police officers had been very frank in private discussions that the CPS were undoubtedly and universally perceived as being more risk-averse than they were a few years ago and that most police officers working in this field knew to expect that (even when they thought they had a ‘strong’ case) the CPS were almost certain to reject it.

    Meanwhile, Sarah Green (EVAW) provided an extremely detailed statement (and large volume of supporting evidence) explaining:

    • Why the change in direction away from the merits-based approach (or in any event the removal of guidance etc precipitating that shift) was considered so alarming/disastrous by the women’s sector – setting out the common problems that guidance on the merits-based approach was intended to address, the extensive consultation with experts which precipitated that guidance, the fact that it reflected a wider cultural shift and the steadily positive impact that that shift began to have on outcomes for victims in the first half of the last decade; and

    • That it was unprecedented in recent memory, and highly concerning, for the CPS to have brought about a change in approach as significant as this without first consulting or even informing the women’s sector. (Extensive evidence was provided showing that the CPS regularly update and consult women’s sector stakeholders on issues of policy and practice far less significant than this and understand that they are expected to involve the women’s sector in this way.)

  • Finally, by the end of the case we had been able to force disclosure from the CPS – to an extent – of:

    • Early internal discussions that took place between Greg McGill and others about the proposed roadshows, removal of the merits-based approach from guidance and training materials;

    • Responses at a high level within the CPS to the news that EVAW were bringing a legal challenge against the ‘change in approach’ to RASSO prosecutions.

    The disclosure revealed that although Greg McGill (who places great emphasis on this) conceived of the change in approach as a mere ‘touch on the tiller’ rather than anything intentionally heavy-handed, he also gave specific instructions that as the change in approach was likely to cause widespread concern amongst externally stakeholders it should be carefully ‘communicated’. This, in our view, makes it all the more shocking that the change in approach was not communicated at all: there was no consultation and no information provided to external stakeholders. 

    The disclosure also revealed that the only evidential basis for the blanket ‘purge’ of the merits-based approach from all internal and external material was a single HMCPSI report based on a relatively small survey of cases, indicating that a handful of prosecutors had been perhaps applying the merits-based approach overzealously. It revealed that in response to this Greg McGill indicated that the merits-based approach was no longer to be a factor in decision-making discussions between police and prosecutors, and that if any Crown Counsel referred to the merits-based approach in discussions they were no longer to be instructed.

    We also noted that at least some managerial-level policing and CPS staff had expressed concerns about confusion and chaos reigning within RASSO units and police forces about what the proper approach was, in light of the CPS’ public position that there had been ‘no change in approach’. EVAW’s position was that this total confusion on the part of CJS practitioners was unlikely to produce good outcomes for victims, either.

    PLEASE NOTE: The CPS did not give permission for these documents to be shared more widely than the Rape Review team and are therefore not available publicly on our website. 

The CPS’/HMCPSI’s position – and how this might risk misleading the Rape Review

In defending the case, the CPS relied heavily on the HMCPSI report published in December 2019 which they said showed definitively that there had been no change of approach on the part of the CPS. Indeed they claimed it represented a ‘total answer’ to the claim.

EVAW, however, relied in the proceedings on  a letter sent by Victims’ Commissioner Dame Vera Baird QC to HMCPSI in which she set out her concerns about the process of the HMCPSI’s review and the report’s contents. The letter pointed to the resistance by the HMCPSI to any independent oversight of the review process, and concerns about the make-up of the review team; significant limitations in the scope/methodology of the review; and factual inaccuracies – as has since been, to an extent – admitted by HMCPSI itself in correspondence with Sarah (EVAW) and Vera. In addition, the purpose of the review was not of course to answer whether the CPS’ actions had been lawful. 

The End Violence Against Women Coalition & The Centre for Women’s Justice 

June 2020

Evidence Bundle:

Capella Rew
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