BSQ regularly acts for individuals in police investigations and prosecutions for sexual misconduct. In the course of our work we are often asked to advise clients on what the CPS charging standard is in these type of cases and how likely it is that charges will result once a police investigation has started.

We have noticed two major developments in CPS charging policy in recent years.

Firstly - the number of cases resulting in charge have dramatically dropped.

Secondly, it is now taking a lot longer – a year to 18 months is typical – before a charging decision is made as police investigations are more drawn out.

In BSQ’s view this situation is neither in the interests of complainants – who must wait an inordinate amount of time to receive justice – or suspects who will often suffer reputational and damage and worse as they put their lives on hold to defend themselves against allegations they deny.

A recent judicial review brought by the Centre for Women’s Justice (CWJ) and the End Violence Against Women (EVAW) coalition has revealed information about the inner workings of the CPS and how prosecution policy is determined that is rarely made public. It provides an insight into how these delays and a drop in charging rates may have come about.

One of the issues the judicial review raises is whether CPS policy on the charging standard in rape and sexual offence cases changed between 2016-8.

The CPS deny this.

However, according to the claimants the CPS adopted a secret policy which “raised the bar” for the charging of serious sexual crimes between 2016 and 2018 and which constituted a new charging standard. Known as the “bookmakers approach’ they say that prosecutors were asked to assess the likelihood of a jury convicting on the evidence before charging. Applying this test meant that prosecutors were directed not to pursue those more difficult rape cases which might lead to an acquittal.

The claimants say this led to a collapse in charging rate and to a dramatic decline in the number of rape cases coming to court. They said the change was “systematically illegal.”

In response the CPS denied that there was any change in policy – a lawyer for the director of public prosecutions (DPP), Max Hill QC claimed that the “bookmaker’s test” approach was never in fact CPS policy. Their position was that the fall in conviction rates was “due to a far wider range of factors involving the police that are now the subject of a government
review.”

According to a recent study by HM Crown Prosecution Service Inspectorate (HMCPSI) those contributory factors include a lack of funding for the police and prosecution. Both agencies claim to be understaffed and overstretched, a situation which has led to cases being ‘lost in the system.”
The HMCPSI also criticised prosecutors for making intrusive requests for complainants’ phones records – which typically take up to 11 months to complete. BSQ has previously commented on the need for careful consideration of this type of evidence where it can be shown to relevant as the debacle surrounding the acquittal of Liam Allen illustrated.
An “end to end” Government review on this topic was previously announced in 2019 and is due to report shortly.
What this means for where CPS policy now stands is unclear.

What is irrefutable are the statistics which tell their own story - charging rates have declined from 56% in 2016-17 to 47% in 2017-18 and 34% in 2018-19. This has meant only 2822 cases were charged in 2017-18 compared to an average of 3446 for each year between 2009-10 and 2016-17.
If you require advice or assistance in relation to a sexual assault allegation please contact our London offices for a confidential consultation.