CPS approach to rape prosecutions ‘a disaster for justice for a crime which is already a terrible fit for our adversarial system’

This week, The Guardian published the latest in a series of articles tracking both an alleged change of approach by the CPS to its prosecution of rape cases and ongoing legal action by the End Violence Against Women Coalition (EVAW) accusing the CPS of dropping cases to boost conviction rates.

While reported rapes have increased steadily over the past decade, reaching more than 58,000 in the year to March 2019, charges, prosecutions and convictions in cases brought by the CPS have fallen over the same period. 

A year ago, EVAW published government figures showing a 173% increase in rape allegations over the previous four years, which also saw a 44% reduction in the number of prosecutions reaching court.

EVAW has compiled a dossier of evidence for a government review of how rape is treated in the criminal justice system, which it has shared with The Guardian.  These include statements by rape victims whose cases never made it to court and information from a CPS whistleblower claiming staff were given training in how to meet conviction targets by removing hundreds of ‘weak cases’ from the system. 

Rape cases dropped by the CPS include a woman being held at knife point during the attack, a case where a film of the attack was found on the alleged attacker’s phone and one where the alleged attacker admitted the offence in text messages.

In early 2020 the EVAW legal action appeared to have stalled when the high court refused permission for the case to go to a full hearing. However, the court of appeal has offered new hope by agreeing to hear an appeal against the decision.

The Coalition alleges the CPS adopted a substantive policy in 2016 which included a target of 60% of rapes brought resulting in a conviction. EVAW claims a merit-based approach of pursuing all cases where there is credible evidence has reverted to a more risk-averse approach, permitting second-guessing of jury prejudices and producing reluctance to press ahead with more difficult cases. The organization describes this as ‘a disaster for justice for a crime which is already a terrible fit for our adversarial system’.

Earlier this year, The Guardian revealed that the CPS conducted  an internal review which exposed its failings in rape cases, but failed to share this information with the Inspectorate review into falling rape prosecution rates, which then produced less critical findings than the CPS’s own review.

In September 2019 the Director of Public Prosecutions, Max Hill QC, told rape victims not to be deterred from contacting police while, at the same time, said he would be “worried” about the fall in numbers of those being investigated and convicted if he were a victim of sexual violence. Encouraging words, but like all words, they have value only when translated into action and the shaping of attitudes needed to make things better. 

The criminal justice system has been severely affected by over ten years of cuts in resources. It is time for a fundamental review of how we approach issues relating to justice, how we improve access to a system that aims to keep all of us safe, and how those impacted and hurt by crime can be confident that their voices are being heard and their needs met. This applies not least to victims of rape, many of whom have been voiceless over the years and who now must be heard if we are to have a justice service worthy of the name.

We recently conducted an online survey of victim service providers to look at the impact of Covid 19 on their services to victims. Please see the link to the survey results

How are we responding to the changed times and still meeting victims’ needs?

At a time when many people are feeling more isolated than ever, especially if they aren’t part of the Zoom or Houseparty surge in virtual meetings, we know that this isolation will impact on lives. This is especially true when it comes to victims of  crime. As highlighted in a previous blog internet scammers are already doing their worst, domestic abuse is on the increase and there are reports of increases in both distraction burglary and commercial burglary – which can often be seen as a “victimless crime”. 

Evidence shows us that family and social support play a huge part in helping people cope and recover after crime. With increased social isolation during lockdown and with all the additional worries people may be experiencing it seems highly likely that victims of crime will be even more reliant than before on the help offered by victim support services. These services are essential at any time; how much more so now?

So, as we said,  it’s crucial we don’t forget the need to look out for people who may not fit readily into one of the current “priority” groups, the elderly and infirm. Especially, when we can see the sad reality that there will be people trying to take advantage of this current crisis, we need to think about how best to support and reassure those who may well fall victim to criminal activity – it hasn’t gone away and nor has the need for support. We especially need to think of those who may have existing issues which adversely affect their lives: hearing or sight problems, learning disabilities, social and economic exclusion.

From our online survey which we began this week we know that many organisations that offer support to victims have had to radically adapt their services to fit this new world in which we have to operate. No longer are face to face meetings possible for example, something that many victims have relied on for support in the past. And the responses of organisations in trying to find creative and effective ways of working is encouraging and a real manifestation of how committed they are to doing their best and making sure victims get what they need.

We at Supporting Justice have been committed to helping partners deliver the best possible outcomes for those whom they support. That’s why we developed our Quality Mark assessment based on five key standards. But that too needs to be adapted to reflect changed circumstances. That is why we have written to all police and crime commissioners offering to help with an adapted, remotely delivered assessment, a diagnostic tool, that can be used to look at how service providers have had to change what they do and are still able to deliver the outcomes they want to  and that victims need.

If you read this and are involved in either commissioning services to victims or delivering them do please get in touch and let us know if you think we can help.

We would also ask you to complete our online survey to help us continue to build up an accurate picture of how you, and victims are doing and how we might learn from this current crisis.

When the first reports of the Coronavirus started to come out of China a couple of months ago, no one could predict the enormity of the changes that would take place in our lives as individuals and as a society (a global society). Those changes are now starting to be real and tangible: trips outside limited; pubs, restaurants, cinemas closed; escalating numbers of people having to be confined to home; and, of course, most significantly, more and more people becoming infected and, sadly, dying.

But in so many ways our lives and our society, our community, continues. Our vital and essential workers must continue to do what they do; our streets still need to be cleaned; our shops still need to be stocked; our streets still need to be places where, even though access is much reduced, we can  feel safe and protected. There are many examples of how life is continuing and, to a degree, some things might actually be improving – speaking to old friends, keeping an eye on vulnerable neighbours, helping join the new army of NHS volunteers to assist those less able to look after themselves. All this and more shows how such a crisis can bring out the best in people.

Flip the coin, however, and we see manifestations of selfishness and greed, a wanton disregard for the needs and safety of others – those scenes in the media from supermarkets were ugly and frightening. Internet scammers are already doing their worst.  So it’s crucial we don’t forget the need to look out for people who may not fit readily into one of the current “priority” groups, the elderly and infirm. Especially, when we can see the sad reality that there will be people trying to take advantage of this current crisis, we need to think about how best to support and reassure those who may well fall victim to criminal activity – it hasn’t gone away and nor has the need for support.

How can we make sure that those in need of support will continue to get it? We know that many organisations will continue to offer such support in the best ways that they can throughout all this. But we all need to think more about what can be done to ensure such support in rapidly changing circumstances : supporters, staff and volunteers will not be able to offer face to face support; there will be an increase of domestic abuse incidents, undoubtedly, as people are confined to their homes with all the additional pressures of worrying about rents, mortgages, paying for food; the police may find themselves increasingly (over ) stretched and so not able to respond as they would wish; people will feel increasingly isolated and alone if not abandoned.

We need to think creatively about our approach to maintaining good and effective support for victims during this period and our organisations need to promote the clear message that, whilst it might not be business as usual, we are still very much here to offer support, advice and, if nothing more, a listening ear to help people through this and through other difficulties that do not, sadly, go away in a time of crisis.

As a global society we have been encouraged, over many years now, to work in smarter and more agile ways: teleconferencing, hangouts, video and live links in court etc. Never has this been more important than now. Victims of crime must not be forgotten; we must reach out, be proactive in making sure our message and offer of support is delivered loud and clear, use all the means at our disposal to reassure people that they are still important and that, even if an imperfect way, we will still be here to try and meet their needs.

Following a new piece of legislation which will allow sentencing remarks of High Court and Senior Circuit judges to be aired.

The Crown Court (Recording and Broadcasting) Order 2020 will allow cameras to broadcast from the Crown Court, although filming will be restricted to judges’ sentencing remarks only and no other court user – including victims, witnesses, jurors and court staff – may be filmed.

Though proceedings may already be broadcast from the Court of Appeal under certain conditions, extending this to the Crown Court means the public will be able to hear judges explain the reasons behind their sentences for the most serious offences.

This change to legislation, while partly the result of campaigning efforts by the BBC, ITN and Sky News, is part of the government’s wider court reform and digitalisation programme, which aims to use technology to demystify and improve people’s access to the justice system.

John Ryley, Head of Sky News, said: “The filming of judges sentencing remarks in the Crown Court is a great day for transparency in our courts. This is a further step in helping the public to understand the constraints under which judges work and the complexities of many of the biggest criminal cases.”

A powerful editorial in last Sunday’s Observer newspaper linked the facts that domestic violence killings have hit a five-year high and reported rape cases increased by 9% in the last year.

The domestic violence bill was delayed again as one of the casualties of the prorogation of parliament,

Rape, it seems, is becoming effectively decriminalised, with the vast majority of perpetrators free to continue offending. While reported rapes are on a frightening upward trajectory, all the key statistics for counter measures are tumbling in the other direction: in the past year rape charges fell by 38%, prosecutions by 33% and convictions by 27%.

“Today, a woman reporting rape has just a 3% chance of seeing her alleged rapist convicted”, according to the Observer.

The DPP blames both the police, for trying to second guess DPP prosecution decisions and making fewer referrals, and the welter of evidence available via new technology, particularly smartphones, which needs to be trawled through to gather evidence and build a case.

The apportioning of blame on the police looks more than a little unfair when you consider that CPS prosecution rates for rape have fallen almost twice as fast as police referrals to the CPS. The Observer concludes that the figures indicate ‘a damaging change in approach to prosecuting rape by the CPS’.

Rapists, it seems, continue to benefit from both the myths and stereotypes that have always clouded and challenged rape case evidence and the desire of the CPS to improve its conviction rates, with prosecutors encouraged to ‘take more weak cases out of the system’.  Since prosecutors also advise police on which cases should be referred to the CPS, they consequently have considerable influence over the falling police referral rates blamed by the DPP.

Government austerity measures which have seen a fall of 20,000 in police numbers since 2010 will also have limited police capacity to track down and arrest suspects, as well as investigate and consider the weight of evidence required to bring a successful prosecution.

The case studies in the Observer article demonstrate clearly the shocking experiences victims go though. One victim was told it was a ‘positive’ case. A year later it was dropped, in part because she did not look particularly scared or nervous when seen in CCTV images from earlier that night. The CPS needs to accept greater responsibility for the ineffectiveness of the system for bringing rapists to justice, both to provide justice for the victims and to deter future perpetrators; taking weak cases out of the system is not the answer.

After the storm there is calm; so the adage goes. There can be no doubt that Whitehall and government was hit by a storm yesterday. The new Prime Minister has made the most radical, decisive and, some might argue, brutal and ruthless re-shuffle of top positions in the government since… well, it’s hard to find a precedent if one is honest. Shock and awe might well be a headline; just as likely are two variations, depending on your perspective: shock and awesome or shock and awful.

What is clear is that this is a new look government and, as the days go by, we should start to see what the priorities are (apart from the obvious one that has topped all since 2016) and crucially how they will be addressed. Social care, education and a significant increase in the numbers of front line police officers have all been promoted by the new PM on the doorstep of Downing Street. There is another to add to the list and one that matters in terms of justice and building public confidence in our criminal justice system – the needs and rights of victims of crime.

One of the more interesting and, perhaps positive appointments has been that of Robert Buckland to the post of Secretary of State for Justice and Lord Chancellor. A barrister by profession the new Secretary has held previous roles in government as Solicitor General and latterly, Minister of State at the Ministry of Justice. He takes office just after the new Victims Commissioner, Dame Vera Baird, has begun her role. So perhaps we might hope to see a new, reinvigorated approach to victim care. 

Speaking at the Modernising Criminal Justice conference last month the Justice Secretary (the then Minister of State) opined that the criminal justice system should be much more effective at rehabilitating offenders so they don’t go on to commit more crime and create more victims and that “We all want to see justice delivered for victims of crime and a system that properly supports and protects those victims and vulnerable people too.”

The words offer promise. But, as we know, we have had many such words and noble intentions over the years. They need to be translated into action. Public confidence in the criminal justice system has taken something of a battering of  late: fewer prosecutions, a rise in violent crime, an approach to evidence gathering that has left some victims feeling re-victimised by the system. There are lots of problems that are crying out for solutions.

We know that we will never have a crime free society; there will sadly, always be new victims. But what we can do is make sure that when people do fall victim to crime they are offered the support they need and that their rights are comprehensively and effectively delivered. And we can only be sure of this when criminal justice agencies and support services are held properly to account, when their performance is measured against the outcomes victims need and to which they have entitlement.

We at Supporting Justice believe that it’s only by a rigorous, outcomes focused assessment that we can drive improvements and deliver a more effective, holistic service to victims of crime. We look forward to seeing progress in this area, and, as always, stand ready to assist the new Secretary of State in his endeavours. For more information on our approach to effective monitoring of services you may want to look at this short presentation Quality Mark and the relevant section on our website Audit and assessment

The central point of any accusation and prosecution for the offence of rape is that of consent: did the complainant (victim) give consent to sexual activity or not? On that hinges the case and any possible conviction.

Once again the issue of consent has surfaced in the context of rape and other sexual offences. This time it relates to the issue of asking (some may suggest forcing) complainants (victims) to give consent for the police to trawl through (carefully assimilate) the data contained on the complainants mobile phone and other digital devices. Failure to give this consent may result in the termination of any proceedings. The rationale behind asking for this consent is that important information that relates to the case and upon which crucial decisions (including innocence or guilt) may be determined, could  be on the phone and so make it necessary for the police (and CPS) to have access to said phone data in order to proceed with the case. Victims of domestic abuse and violence may also find themselves in a similar position.

That, I must say, all sounds fairly reasonable. We all want as many relevant facts to be available so that a just and fair decision can be arrived at in any criminal proceedings. If there is information available that will help determine whether someone is guilty or innocent of a serious offence then it is surely reasonable to ask that this may be made available to those responsible for making such decisions;  ultimately a jury in a court trial.

Well, yes, so far so good. But is this suggestion of asking a victim (complainant) to hand over their phone, possibly for many months ( the guidance suggests that the police “may be able” to offer an alternative phone to the victim), fair and proportionate? In defending the new consent form being rolled out in police forces, Assistant Commissioner Ephgrave of the Metropolitan Police has, reassuringly, suggested that this is not the finished article but a useful step along the way. Yet the premise ( and so the foundation) of the form seems to be to help address the recent and highly damaging problems around disclosure in sexual offence trials which have attracted a lot of attention.

It is certainly the case that disclosure issues can and have made a complete hash of cases and that no one, complainant, defendant, the criminal justice system or us, the public, isn’t impacted by them particularly when it comes to confidence in the system. But the new consent form does not look like the right way to help address this. The problems in the past have been about disclosure – this is not the same as not knowing about or ignorance of available information. The material was there, the police and CPS had it; they just didn’t pass it on. I’m not sure how trawling through a mobile phone addresses this, though accept that it will certainly help gather lots more information.

And that’s another issue. If the police are able to keep the phone for an extended period and give it a thorough examination what happens to the information they glean. The guidance suggests it will be kept and states that if there is any evidence of other criminal activity it may be pursued. Does this help build confidence among victims? Consider a complainant (rape victim) who may have contacts who aren’t always absolute sticklers for obeying every law of the land – and, if being honest, I suspect that could apply to just about all of us. Knowing what is on the phone (the odd text, What’sApp, email) am I going to be relaxed about handing the phone over to the police? Am I, perhaps, not more likely to just forget about it and try to get on with my life? Am I more likely to be denied justice (that sounds clinical and not at all reflective of the trauma involved)?

And what about the perception that the desire to have access to all the data on a phone is but another way of building a picture of the victim that, in truth, should have nothing to do with the case. Remember the days when juries were asked to reflect on whether the short skirt the victim (complainant) was wearing contributed to the offence happening. That helped undermine  trust in the criminal justice system and it’s hard to see how this new measure, well intentioned as it is, will help restore said trust.

Asking victims (complainants) to hand over their mobile phones and consent to what some may see as a “fishing trip” isn’t the way to address the problems with disclosure. It is, perhaps, a bit of a sledgehammer approach to what is, obviously, a hugely sensitive area. I’m sure the motives are honourable and that the police and CPS are really trying to help. But it doesn’t look to have got off to a good start. If the criminal justice system is to work it must, as the Director of Public Prosecutions and AC Ephgrave said in their briefing command “trust and confidence”. This approach is, indeed, far from the finished article.

If all this sounds to be but an academic discussion let’s remember what this is really about, indeed, what our criminal justice system is (or should be) about: people. As a rape victim has recently said: “They were the most private details of my life and they were going to be revealed to anyone and everyone involved in the case when all I was trying to do was get justice. Who in their right mind would go ahead with a complaint when this is how they’re being treated?” she said. “People are just going to get away with rape.”

Best intentions are not always enough. We need also to be aware of unintended consequences.

One could be forgiven for thinking that the only melting pot for discussion on Brexit is the House of Commons (although television studios and indeed, the environs surrounding parliament have also come into their own); but, of course, our parliament comprises two houses and the House of Lords is also playing an important role as the clock ticks towards March 29th. A recent debate in the Lords  raised some interesting and concerning issues.

The Debate

On a “motion to take note” focused on the proposed UK – EU security treaty (European Union Committee Report), took place in the House of Lords on 16 January. Which offered an important insight into a matter of real significance that has, on the whole, not generated a lot of attention, comment or exposure in the media.

Lord Jay opened the debate by referencing the House of Lords as the “calm and thoughtful” end of the Palace of Westminster and it is hard not to agree. He articulated three salient points from the report which was published in July 2018. The report supported the government’s three principal areas for future UK-EU security co-operation – extradition, partnerships with EU agencies such as Europol, and access to law enforcement databases – and considered how the UK’s engagement with the EU in each of these areas may be affected during the transition period and under the future UK-EU security relationship.

The Analysis

The outlook doesn’t appear especially positive with or without a withdrawal agreement. Even if the agreement negotiated by the Prime Minister were to benefit from a Lazarus like revival there would still be concerns about some fairly significant issues: yes, we would still participate in EU agencies and information sharing mechanisms until the end of the transition period but not,  however, be able to participate in the management bodies of EU agencies or opt in to new measures in the areas of freedom, security and justice; extradition arrangements could also be disrupted; and, the report concluded, it’s unlikely that an overarching internal security treaty could be agreed before the end of 2020.

Data Sharing

Europol, data sharing, extradition, European Criminal Records System (to which no non EU country has access) are all issues relating to our security (the first and most important responsibility of any government) and it would be fair to say that we cannot rest easy at the moment. Just one example: UK-EU security relies on the exchange of data and, at present, this can be retrieved almost instantaneously. There is no guarantee, post Brexit, with or without a  deal, that this would not take days or weeks, generating a hurdle for policing and a concomitant threat to public safety. If we have no deal at all the latest reaction from the National Crime Agency gives us even more cause for concern.

It’s in this overall context that the debate in the House of Lords was welcome and enlightening. It’s easy to forget (with sometimes more or less gentle nudging by the popular press) that the Lord’s is filled with many distinguished, knowledgeable, erudite, public spirited, thoughtful and reflective individuals. Take, for example,  Lord Bach who made a useful and thought provoking contribution to the debate. Lord Bach is the police and crime commissioner for Leicestershire and Rutland and, in his former incarnations, has ben a minister in the departments of Justice and Defence and a shadow foreign minister and shadow Attorney General. Quite an impressive resumé.

Moving Forward

As he points out, even with a deal, there would but be twenty one months during the transition period in which to negotiate comprehensive agreements covering all the areas previously highlighted as giving rise to concern. The current, vital agreements, play an important and positive role in policing and will not easily be replicated; they have added greatly to the efficiency and effectiveness of policing both here and abroad. As Lord Bach highlights, we would be seeking future agreements as a third party, albeit a special third party, and, despite best efforts, it can take many years, if not actually be impossible, for agreements to be reached between the EU and outside countries.

With European parliamentary elections and a new European Commission due this year the actual time to negotiate may, in effect, be reduced from twenty one to fifteen months. Should no agreement be possible in that timeframe (even the more generous of the two) it runs the risk, says  Lord Bach , of directly affecting the security of people’s lives in both this country and the EU. This, he rightly notes, would be unforgivable.

Trade, immigration, parliamentary sovereignty: all important and all generating diverse opinions. But it’s important not to forget that security and the need to keep us safe is the primary concern of government. That’s why we should be concerned about what happens next – it’s not an abstract concern but one that goes to the very heart of how we live our lives.

Security

We can easily become complacent. For many years the crime figures seems to have been telling us that crime is falling and that we are safer than we have ever been. The latest  figures tell a different story. And in a rare television interview the former head of MI6, Sir John Sawers said this: “Any form of Brexit makes our security more difficult to manage”. As the clock ticks towards March 29th the debate in the House of Lords and the comments from those who have been charged with our safety and security are matters that deserve and need to generate  rather more attention and concern.

The House of Commons Justice Committee has just launched an inquiry into the current programme of reforms to Her Majesty’s Courts Service. The details of the inquiry can be found here:

Two of the key areas that the committee want to consider are:

1. What will be the likely effects of the reforms, both implemented and proposed, on access to justice in relation to:
   a. civil justice?
   b. family justice?
   c. criminal justice?
   d. administrative justice, particularly as delivered by the tribunals system?
   e. those who are digitally excluded or require support to use digital services?
2. What are the effects on access to justice of court and tribunal centre closures, including the likely impact of closures that have not yet been implemented; and of reductions in HMCTS staffing under the reform programme? For users, how far can online processes and video hearings be a sufficient substitute for access to court and tribunal buildings?

Now, court reform, indeed criminal justice issues in general, are not really the stuff of tabloid headlines. The exceptions, of course, are when something is deemed to have gone dramatically wrong: a high profile miscarriage of justice; a high profile trial involving serious crime (or a well known celebrity); or something that is deemed to affront all sense of right and justice (The Worboys case).

The actual functioning of our justice system does, on the whole, not generate a huge amount of interest or engagement by the public; one could even be forgiven for thinking that for lot of the time criminal justice professionals are simply talking amongst themselves.

But the way our justice system works, including the way and means that people have access to that system is one of the bedrocks, one of the essential component parts of a democratic, civilised society. It is not, or should not be an afterthought and something to which we are all subject rather than about which we are informed and concerned.

The reform programmes in criminal justice have noble aspirations: to make sure that the system is fit for purpose (future proofed) and that we continue to have a justice system that is the envy of the world. Better case management, greater and more efficient use of technology, “putting victims first” – all sound great. But are they just sound bites?

If you listen to the government these reforms are doing just what they set out to do – providing a justice system that is lean, fair, empathic and fit for the future. But there are some siren voices that are raising concerns. A recent bestseller (yes, I know, seems something of a contradiction to what is said above) casts a critical eye over these reforms and the system in general. The Secret Barrister raises significant concerns about our justice system and, if you can lay your hands on a copy, it’s well worth a read – this is not a backdoor promotion of the book by the way.

For example, the programme of court closures and the impact these have. The MOJ points out that 97% of users will still have access to a court within an hour’s travel time. Sounds reasonable. And yet many of us who have worked in a court environment know the difficulties, some not insubstantial, that witnesses have getting to court let alone the problems of getting the accused to court on time. So it’s not all rosy garden stuff.

That’s why this inquiry is important. For many of those impacted by our criminal justice system (and that is, let’s face it, most of  us) don’t really have, too often, the chance to have our voices heard. So please, if you have any insights, any concerns, any suggestions on the questions raised, on how to make our justice system serve us better and be the shining beacon on a hill it has been promoted as in the past, let the committee know and send in a response. You have until March 11th.