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11 February 2021

The EVAW Coalition Judicial Review of CPS Rape Policy – a defence perspective

4 mins

At the end of January 2021, the Court of Appeal comprised of LCJ Lord Burnett of Maldon, LJ Holroyde and LJ Laing, heard a claim for Judicial Review which was refused at first instance by the High Court. The case was brought by the End Violence Against Women Coalition (EVAW), with final judgment to be given at a later date.

The basis of the claim is that the CPS and Director of Public Prosecutions (DPP) acted unlawfully over a period of 19 months from September 2016 to April 2018. The current DPP is Max Hill QC, who took up the role in November 2018. During the period in question, the DPP was Dame Alison Saunders, who left in 2018, in the wake of criticism of the CPS over the collapse of a number of high profile rape trials in 2017-2018. The collapses of these trials were due to failures by the CPS to disclose critical exculpatory evidence to the defence, leading to an urgent review of all live rape cases and the discontinuance of hundreds.

EVAW argue that the introduction in 2016 of a convictions target of 60%, combined with a shift to a fundamentally different approach to prosecutions, led to a ‘catastrophic’ collapse in the number of rape cases being charged. This shift to a different approach was a conscious move away from the ‘merits-based approach’ advocated by former DPP, now Labour leader, Sir Keir Starmer QC. The EVAW says that prosecutors were trained away from the merits-based approach, adopting the ‘bookmaker’s approach’ instead, which resulted in prosecutors considering the likely outcome of a case based on past experience of similar cases. This, they suggest, culminated in prosecutors being encouraged in 2016 and 2017 not to charge ‘weaker’ cases, with the aim of improving the conviction rate for rape.

The EVAW case is clearly an extremely important and valuable legal challenge. It seeks to shine a light and bring accountability and transparency regarding prosecutorial practices and decision making on rape and sexual offence cases at the CPS. It is notable that the failures highlighted by EVAW’s case occurred at a time when suspects and defendants were also being failed as a result of the CPS’ demonstrably faulty disclosure regime. The conviction targets revealed by the EVAW case have the potential to impact on suspects, defendants and complainants alike in terms of actual and perceived fairness within the criminal justice system. Targets have the potential to undermine the duties of the prosecutor to remain impartial and to take an objective view of the evidence and their disclosure duties. In 2018, Dame Alison Saunders was quoted as saying that an acquittal is ‘not a disaster’ for the CPS, ‘it is a sign that the system is working’ because the CPS ‘are not judge and jury’ and nor should they ever be. Their role is to apply the test ‘is there a reasonable prospect of conviction’. She was right about this.

Allegations of a sexual nature are extremely complex and have very serious consequences for complainants, suspects and defendants. It is absolutely right that prosecutorial decision-making is subjected to judicial scrutiny of this nature. We must hope, whatever the outcome of the case, that at the very least it may lead to a tightening up of CPS policy and – more importantly – actual practice across the board on rape and sexual offence cases, which will ultimately benefit all parties.

The criminal justice system needs to ensure not only that cases which merit prosecution are pursued, but that the innocent are acquitted and not wrongly convicted. Thresholds designed to ensure a proper balance between the rights of the accuser and the accused come from a number of well-established principles, which form the bedrock of our criminal justice system and our system of due process. This includes the burden and standard of proof – that a suspect or defendant is innocent until proven guilty and it is for the prosecution to prove guilt beyond reasonable doubt. They come from the underlying statutory instruments such as the PACE Code G, which requires the police to investigate all reasonable lines of inquiry, whether these point towards or away from the suspect. They are derived from legislation passed by our democratically elected Parliament, which defines the offences in question. In a rape case, this is expressed as a requirement that the prosecution must prove all the elements of the offence including the complainant’s lack of consent and the defendant’s lack of reasonable belief in consent. Another vital threshold is that those vested with prosecutorial discretion exercise it responsibly, objectively, not driven by targets, and in accordance with publicly available guidance, which itself may be the subject of representations, challenge and scrutiny by all parties.

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