'Unlawful' rape prosecution policy changes challenged in Court of Appeal by End Violence Against Women coalition

"Unlawful" changes to rape prosecution policy have led to a "shocking and unprecedented" decline in the rates of rape offences taken to court, the Court of Appeal has heard.
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The End Violence Against Women (EVAW) coalition claims that between 2016 and 2018, the Crown Prosecution Service (CPS) took a series of actions which changed the way cases of alleged rape and other serious sexual assaults are considered by prosecutors, leading them to become more risk-averse about the cases they prosecute.

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The coalition is bringing a legal challenge against the CPS, arguing these actions were unlawful and gave rise to "systemic illegality".

Leeds West MP Rachel Reeves raised the issue of rape prosecution rates in Parliament after a campaign by the Yorkshire Evening Post last year. Picture: Tony JohnsonLeeds West MP Rachel Reeves raised the issue of rape prosecution rates in Parliament after a campaign by the Yorkshire Evening Post last year. Picture: Tony Johnson
Leeds West MP Rachel Reeves raised the issue of rape prosecution rates in Parliament after a campaign by the Yorkshire Evening Post last year. Picture: Tony Johnson
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At a hybrid hearing today, lawyers for EVAW argued that between 2016 and 2018, the CPS made a move away from a "merits-based approach" (MBA) of determining which cases should be prosecuted.

The CPS is opposing the challenge and argues there has been no shift in approach.

Phillippa Kaufmann QC told the three senior judges that up to 2016, prosecutors were told to take an "objective approach" to cases and "put aside myths and stereotypes" about rape cases and rape victims.

She said it was "drummed into prosecutors over six years" to use the MBA to "ensure an evidential-based approach was applied".

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Ms Kaufmann said that from September 2016, it was decided to take a "fundamentally different course", and "do away" with the MBA, which created a risk that prosecutors ended up not prosecuting cases that did meet legal tests to do so.

She said both the volume of rape cases charged and the charging rate have fallen since 2016/17.

It comes after a Yorkshire Evening Post campaign last January featured the stories of rape survivors whose attackers had never been charged.

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The series also revealed that there had been a 25 per cent increase in reports of rape to West Yorkshire Police - yet only 4.4 per cent resulted in a charge.

Leeds West MP Rachel Reeves went on to raise the issue in parliament, asking what the Government was doing to ensure the criminal justice system was properly resourced and did not let down victims.

Ms Kaufmann told yesterday's hearing that an average of 3,446 rape cases were charged per year between 2009/10 and 2016/17 and this fell to 2,822 in 2017/18 - down 23 per cent compared to 2016/17.

In addition, the barrister said, the charging rate has "declined precipitously" from 56 per cent in 2016/17 to 47 per cent in 2017/18 and 34 per cent in 2018/19.

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She said: "In light of this shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS (which is not disputed), it is EVAW's case that the actions taken by the Director of Public Prosecutions (DPP) in 2016-18 have given rise to systemic illegality, insofar as there is a real risk that a more than minimal number of Crown prosecutors have, since these actions were taken and in consequence of them, applied the unlawful predictive approach when deciding whether to charge those alleged to have committed the crime of rape."

Lawyers for the CPS argued the case was not suitable for legal challenge and asked the Court of Appeal to dismiss the claim.

Previous Home Office data has shown that in the 12 months to March just 1.4 per cent of 55,130 rape cases recorded by police led to prosecution. Of the cases that were closed, 41 per cent collapsed because the victim did not support further action.

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The hearing, before the Lord Chief Justice Lord Burnett, Lord Justice Holroyde and Lady Justice Elisabeth Laing is expected to last for two days and they are expected to give their ruling at a later date.

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