A piece in today’s Times:
The country’s former top prosecutor approved a controversial policy for rape cases in an effort to counter bad publicity around four prominent acquittals, campaigners have told judges.
A coalition of women’s groups has claimed that “unlawful” changes to rape prosecution policy led to a “shocking and unprecedented” decline in the rates of cases taken to court.
In a highly unusual move, the Court of Appeal has agreed to hear a judicial review of the Crown Prosecution Service’s policy despite the High Court rejecting an application last year.
The End Violence Against Women coalition says that between 2016 and 2018, senior CPS officials changed the way that cases of alleged rape and serious sexual assaults were considered by prosecutors, leading them to become more risk-averse. The legal challenge argues that those actions were unlawful and led to “systemic illegality”.
In written submissions to the court, lawyers for the coalition said that Dame Alison Saunders, then director of prosecutions, allowed concern over adverse publicity about four failed prosecutions five years ago to colour her thinking when agreeing to the policy change. The lawyers highlighted a comment from Dame Alison’s witness statement in which she said that “adverse publicity around specific cases may have been part of the background to discussions at this time”.
Dame Alison went on to say that a decision to hold a series of roadshows to explain the policy to staff “was based upon the bigger picture consideration of decision making across the CPS in serious sexual offences”.
In their submissions the coalition’s legal team said that “regardless of exactly how these four cases factored into the DPP’s analysis . . . any reliance that was placed upon them to justify the actions was wholly misplaced”.
They claimed that in 2015-16 the CPS completed 4,643 prosecutions and that therefore the four cases resulting in acquittals “represented a total of 0.08 per cent” of cases prosecuted that year.
The CPS is opposing the challenge and says there has been no shift in approach.
Phillippa Kaufmann, QC, representing the applicants, told the three senior judges that up to 2016, prosecutors were told to take an “objective approach” to rape cases. It was “drummed into prosecutors over six years” to use a merits-based approach or MBA to “ensure an evidential-based approach”.
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 that from November 2016, prosecutors were “trained away” from the MBA, particularly during the roadshows.
Both the volume of rape cases charged and the charging rate had fallen since 2016-17, she added. Between 2009-10 and 2016-17, an average of 3,446 rape cases were charged each year, slipping to 2,822 in 2017-18.
In addition the charging rate “declined precipitously” from 56 per cent in 2016-17 to 47 per cent in 2017-18 and 34 per cent in 2018-19.
The hearing, before Lord Burnett of Maldon, the lord chief justice, Lord Justice Holroyde and Lady Justice Elisabeth Laing is expected to finish today and judgment is likely at a later date.
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