A legal challenge against the Crown Prosecution Service (CPS) over an alleged change in policy on prosecuting alleged rapes and other serious sexual offences has been dismissed by the Court of Appeal.
The End Violence Against Women Coalition (EVAW) argued the CPS moved away from a “merits-based approach” to deciding which cases of alleged rape and other serious sexual assault should be prosecuted, which it said has given rise to “systemic illegality”.
The group claimed that, between 2016 and 2018, prosecutors became more risk-averse and shifted towards an “unlawful predictive approach when deciding whether to charge” alleged sexual offences.
Their lawyers said this unlawful approach has led to a “shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS”.
The CPS, however, said there has been no change in policy and argued at a hearing in January that the removal of dedicated “merits-based approach” guidance “did not result in any substantial change” in charging decisions.
In a judgment on Monday, the Court of Appeal dismissed the EVAW’s case, ruling that the CPS did not change its policy in relation to the prosecution of sexual offences.
The Lord Chief Justice Lord Burnett said in the ruling that the removal of references to the “merits-based approach” in guidance for prosecutors “was not a change of legal substance”.
The judge, sitting with Lord Justice Holroyde and Lady Justice Elisabeth Laing, said: “We do not consider that it was unlawful to decide to remove references to the merits-based approach from the Director of Public Prosecution’s legal guidance.
“Stripped of references to the merits-based approach, the remaining guidance is not unlawful.”
Lord Burnett added: “We reject the submission that the decision created any risk of systemic illegality.”
In a statement after the ruling, EVAW said it would have to pay about £75,000 to the CPS to cover its legal fees, unless those costs were waived.
EVAW’s director Andrea Simon said: “We are deeply disappointed at this outcome. However, we have no regrets about holding institutions accountable for the effective decriminalisation of rape.
“Thousands of rape victims continue to be let down by a broken criminal justice system.
“The Court of Appeal has given the CPS the benefit of the doubt on whether there was any change of approach to prosecution decision-making, but we still lack alternative answers to why rape prosecutions have collapsed.
“This marks another establishment betrayal of victims of violence against women and girls.”
Harriet Wistrich, director of the Centre for Women’s Justice, which acted for EVAW, said she was “deeply disappointed” with the ruling.
She said the evidence EVAW presented as part of the challenge, which EVAW was not allowed to rely on by the court, showed that the change in “messaging” to prosecutors led to “an over-cautious approach”.
Ms Wistrich added: “As a consequence, rapists that might otherwise have been convicted are walking free and there is a growing perception that rape has been decriminalised.”
Director of Public Prosecutions Max Hill QC welcomed the Court of Appeal’s judgment, which he said confirmed that “the CPS was neither irrational nor unlawful in its approach to updating guidance for prosecutors, and that there was no change of approach in the way the CPS prosecutes rape cases”.
Mr Hill said “the legal test that guides every charging decision has not changed”, adding: “The principles of the merits-based approach are enshrined in the Code for Crown Prosecutors, which guides every charging decision.
“Independent inspectors have found no evidence of a risk-averse approach and have reported a clear improvement in the quality of our legal decision-making in rape cases.
“Today’s outcome means we can now give our full focus to the extensive programme of work under way to address the gap between reported rapes and cases going to court.”
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