BSQ Briefing – Sex Crimes – CPS Charging policy in Sex Cases Update

The CPS have issued a formal response to the publication by the Criminal Justice Joint Inspectorate (CJII) on the 16th July 2021 of a report that considers the police and CPS response to rape and sexual assault allegations. The report is the first of two and focusses on those cases where either the police or the CPS decided to take no further action.

BSQ regularly acts for individuals in police investigations and prosecutions for sexual misconduct. BSQ has recently been instructed in two private cases where decisions to take no further action were reversed after the complainant exercised their right to review – in the first of these two cases our client was acquitted at trial. The second is still awaiting trial.

Below we examine the CPS response to the Government review which provides an interesting insight into the procedures followed by the police and CPS before a decision to take no further action in a sexual assault allegation is made:-

- Early Investigative Advice – The CPS have agreed in every rape case at a local level that early investigative advice from a CPS lawyer should be considered and the reasons for not doing so recorded.
- Face to face meetings between (either virtual or in person) between the investigator and prosecutor before deciding to take no further action;
- A clear escalation pathway available to both the police and the CPS in cases where the parties don’t agree with decisions, subject to regular reviews to check effectiveness, and local results.
- Since March 2021 the CPS has confirmed that a District Crown Prosecutor must review all rape cases where it is proposed that a second action plan will be sent to the police following the submission for a charging decision under the Full Code Test.

Revised Charging Standards

As part of their response the CPS has also promised to set out a new RASSO (Rape and Serious Sexual Offences) public policy statement to improve “public understanding” of how the CPS deal with and prosecute these cases by Summer 2021.
BSQ hope that the new policy will provide further clarity not just on what the CPS charging standards are but also how they are implemented. This would be particularly timely following the controversy over allegations in a judicial review where it was claimed that the CPS had circulated a secret memo advising that prosecutors take a “bookmakers test’ approach when deciding if cases should be charged – see our BSQ blog here. Applying this test it was said meant that prosecutors were directed not to pursue those more difficult rape cases which might lead to an acquittal and led to a dramatic fall in the number of rape cases that led to charge and prosecution.

The CPS has always denied that the “bookmakers test’ was ever official CPS policy and cited many other reasons for the decline in prosecutions – see our BSQ blog here. As to what CPS policy is now the relevant guidance (dated May 2021) on the CPS website begins by reiterating that;

“The test for rape and serious sexual offences prosecutions is the same as for any other offence: the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and the prosecutor is satisfied that a prosecution is required in the public interest.”

Running to 15 chapters the guidance is comprehensive and contains a lengthy section outlining the principles to be followed by prosecutors when applying the evidential stage of the Code in Rape and Serious Sexual Offences and is available here (please link in text below)
https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-overview-and-index-2021-updated-guidance.

2019/20 recorded a drop in the number of prosecutions from 5,190 in 2016/17 to 2,102 in 2019/20 and a slight rise in conviction rates from 56.9% in 2015 to 63.5% in 2019. In BSQ’s view this is an area where the CPS’s record will be judged by its actions not words – and we will be keeping a close eye on the latest statistics released on decisions to charge and prosecute.

You can read more about our solicitors’ expertise in defending sexual allegations. If you require advice or assistance in relation to a sexual assault allegation please contact our London offices for a confidential consultation.