A coalition of women’s organisations will face the Crown Prosecution Service (CPS) in the Court of Appeal in a two day judicial review hearing on 26 and 27 January 2021, as three of the country’s most senior judges will consider whether the CPS unlawfully changed its policy and practice on decision-making in rape cases. The campaigners say this led to a catastrophic collapse in the numbers of rape cases going to court, and has contributed significantly to what commentators have called, “the effective decriminalisation of rape”.
The End Violence Against Women Coalition (EVAW), represented by lawyers from the Centre for Women’s Justice (CWJ), were granted permission for this special and unusual full hearing by the Court of Appeal last July.
The Court of Appeal decided that the legal arguments and evidence that senior CPS managers recklessly encouraged its prosecutors to ‘put a touch on the tiller’ of their charging decisions in 2016 and 2017, was arguable and should go to full hearing.
The women’s coalition evidence includes:
- a detailed statistical analysis of CPS case outcomes over a decade;
- a whistleblower statement;
- a ‘dossier’ of cases brought to EVAW and CWJ by women whose cases weren’t charged;
- and hundreds of supporting documents.
EVAW Coalition Director Sarah Green said:
“We have felt compelled to bring this case because it is very clear from the data, and from what women using the support services provided by our members are experiencing, that the bar has been raised on charging in rape cases – leaving women denied justice and dangerous offenders getting away with it.
“We have been overwhelmed by wide public support for our bringing this legal action – including all the donations to our crowdfund for this case – which indicate the strong public concern about this matter. We are here for every woman and girl who has sought, is seeking or will seek justice in the future.”
The judicial review case was originally denied permission for a full hearing in March 2020, but that decision was overturned by the Court of Appeal in July 2020. That court decided, unusually, that the judicial review would be heard by a fully constituted Court of Appeal with three senior judges sitting all day on 26 and 27 January.
CWJ Director Harriet Wistrich said:
“There is a lot at stake for the Director of Public Prosecutions. The CPS are virtually untouchable in law, and this case seeks to shine a light on their approach to decision making, and hold them accountable for unilateral changes in policy which have impacted the lives of thousands of women and girls seeking justice.”
The case has attracted enormous public attention; a crowdfund to cover EVAW’s costs has gone viral and included 100s of messages from those pledging £10 and £20 gifts, including:
“I want change. Because I won’t get justice for what was done to me.”
“I think my case is about to be dropped. I’m not an innocent-enough victim. If they take my phone they’ll find my sexual history which has been wild and joyful but I know they’ll use it against me. I think they’ll use all their resources to suggest a woman like me can’t be raped. But I was raped.”
“I myself have been let down by our justice system and support other women who have also been grievously let down too. The way this crime is considered is out of date, unfair and completely unjust. Thank you for standing up for every victim.”
“Thank you for standing up for me, no one will ever pay for the abuse done to me, except me for the rest of my life.”
“This needs to be fought. Thank you for doing it for all of us.”
It is EVAW’s position, as set out in their Judicial Review against the CPS for their failure to prosecute rape, that this disastrous collapse in cases proceeding to trial is a result of a covert policy change, meaning that in 2016-17 prosecutors were encouraged not to charge so called “weaker cases” with the aim of improving their conviction rate.
The Crown Prosecution Service are still contesting the EVAW claim. It is expected that their legal team will make the case at trial that the CPS did not materially change their rape prosecution policy, or practice, in the years 2016 to 2018. We believe that this is an extraordinary position to take given what is now known:
- CPS management imposed a formal conviction rate target (or ‘level of ambition’) for rape in 2016, without making this public. The CPS themselves have admitted to the Law Society Gazette that they eventually dropped this policy two years later, as they realised retrospectively that it might give prosecutors a “perverse incentive” to prosecute fewer cases: only pursuing the ‘easiest’ cases, instead of investigating and prosecuting as many cases as possible;
- Trainings were also delivered to sexual offences prosecutors in 2016 (and not to prosecutors working in any other area of crime) in which they were discouraged categorically from referring to the ‘merits-based approach’ in their charging decisions any more, and told that if they could identify and remove hundreds of ‘weak’ cases from the system, it would improve the CPS’ conviction rates;
- The CPS systematically removed all guidance for sexual offences prosecutors and the public relating to the ‘merits-based approach’ to charging decisions in 2017 and 2018, without consultation. We believe the CPS must know that this change of guidance has had a negative impact – not least because – in a huge ‘u-turn’ revealed in October 2020 – they have now reinstated large extracts of the deleted guidance, word for word, on their website!
- The number of rape prosecutions decreased by more than 50% in just two years, between 2016/17 and 2018/19: a record decline. And although there has been a very slight improvement since then, we are still seeing a worryingly low proportion of cases charged;
- Police officers, including senior police officers, have spoken out publicly about their concerns that the CPS are now applying an impossibly high threshold before they will bring charges.
In the past few months EVAW and CWJ have been able to obtain further evidence, which it has not been possible to publicise until the case is fully heard in open court next week (26 and 27 January). This, in part, is why this hearing is so important. EVAW and CWJ are calling for an honest, transparent examination of policy decisions that, we believe, have very significantly contributed to the current crisis in rape prosecutions. In addition to this, EVAW and CWJ hope too that the court will find the CPS’ change of policy unlawful – and forbid it from ever happening again in the future.]
EVAW made a lot of the evidence (2) compiled for their original submission in March 2020 available online in order that individuals can see for themselves the weight of evidence behind the case.
In November 2020, EVAW, CWJ and Imkaan and Rape Crisis England and Wales published a comprehensive report setting out the problems in the justice system’s response to rape and recommendations for change (3).
Notes for editors:
Interviews: EVAW and CWJ are available for interview.
Hybrid hearing: The court hearing is set to be a ‘hybrid hearing’ with the three judges sitting in person at the Royal Courts of Justice with a small number of lawyers and representatives for each side. There may be space for some media, but digital link is also available. It is expected that many of the large number of women impacted by the policy will be watching the hearing remotely
- Figures published by the Home Office in July 2020 show that 1in 70 rape cases are charged: https://www.theguardian.com/society/2020/jul/17/one-in-70-recorded-rapes-in-england-and-wales-led-to-charge-last-year?CMP=Share_iOSApp_Other
Media information, interviews, briefings:
EVAW Media line: 07960 744 502 / Sarah Green: 07496 872406, email@example.com
CWJ: Nic Mainwood 07704516836, firstname.lastname@example.org
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The End Violence Against Women Coalition is the UK’s largest coalition of organisations working to eradicate violence against women and girls; members include Fawcett Society, Forward, Imkaan, Jewish Women’s Aid, London Black Women’s Project, Rape Crisis England and Wales, Refuge, Respect, Southall Black Sisters, Standing Together, Women in Prison, Women’s Aid, WRC, The Women’s Institute and the TUC. The EVAW Coalition is a registered charity number 1161132.
The Centre for Women’s Justice (CWJ) is a legal charity which aims to advance the human rights of women and girls in England and Wales by holding the state to account for failures in the prevention of violence against women and girls. CWJ is a registered charity 1169213.