Say no or 'rapists' may walk free: new warning from Director of Public Prosecutions Alison Saunders after trials collapse

Rape complainants were today warned by the country’s top prosecutor that their alleged attackers could escape charges if they stayed silent during sex.

The Director of Public Prosecutions, Alison Saunders, said men in such cases could have had a “reasonable belief” that they had been given consent. That meant they would not be prosecuted, even if the woman involved was convinced that she had been raped.

Ms Saunders added that accused men could also avoid charges if “other actions” by a rape complainant had led them to believe that they had been given the go-ahead for sex.

Her comments came during an interview with the Evening Standard in which she insisted that the job of the prosecutor was to act as “a protection” for both sides when rape allegations were made and to ensure that men were not wrongly put on trial.

They follow controversy over the acquittal of several rape defendants, including Londoners Liam Allan, Isaac Itiary and Samson Makele, after material exonerating them emerged as they faced trial, when they could have been cleared many months earlier.

These cases and others have led to claims that prosecutors have been too keen to put men before the courts because of a desire to raise the number of rape convictions.

But Ms Saunders denied this and insisted that she understood the “devastating” impact that rape allegations could have on the lives of innocent suspects in such cases.

She said that two tests were applied when making decisions about consent in “acquaintance rape” cases in which the dispute was not whether sex had taken place, but whether the woman had agreed.

Acquaintance rapes are incidents in which the complainant and suspect were either on a date or knew each other before the alleged attack and differ from less frequent “stranger” rapes in which the perpetrator was previously unknown to the victim.

The first of these two tests which Ms Saunders said was applied by prosecutors was whether the alleged victim was capable of consent or too drunk or otherwise incapacitated to have been able to do so. But the second was whether the man was entitled to believe that the woman had agreed to sex — even if she later claimed that she had not.

Ms Saunders said the judgment in such cases was about “context” but that a woman’s silence could mean that her alleged rapist would not be prosecuted. “We have never done the extreme of if someone says they’ve been raped or just wants to shout rape then that’s enough,” the DPP told the Standard.

“We look at two stages. The capacity to consent. Also, it’s the second limb which prosecutors apply: did the suspect have a reasonable belief in consent?

"So in some of the cases you can see why even though the complainant may think they were raped, there was a reasonable belief that they had consented, either through silence or through other actions or whatever. We are there not just to be able to prosecute cases where there has been an offence, but also not to prosecute cases where there isn’t sufficient evidence.”

Ms Saunders’ suggestion that silence can sometimes amount to consent is likely to anger those who argue that women are sometimes too pressurised to speak out when they are being forced into sex against their will.

But the DPP said that prosecutors had to be careful because they were dealing with “high stakes” and “people’s lives” when handling rape allegations and did not want to put people wrongly before the courts.

She added: “The one thing we have to be careful of is that we don’t sway with public opinion and media rhetoric because one week we will get accused of prosecuting too much, and then others accusing us of not prosecuting enough.” Ms Saunders admitted that she felt regret when cases collapsed because of evidence that could have been disclosed earlier, as in the Liam Allan case.

“As a human you do think, it’s quite difficult to articulate. It is so disappointing and irritating... because if we had had that material earlier we would have not prosecuted the case and saved somebody going through all of that. Or we could have stopped the case at an earlier stage. That’s why it’s so important and why we need to do our job and get it right.

“There are high stakes here and I understand entirely if I think about whether that happened to me or anybody I knew it would be devastating. We want to get it right. Prosecutors feel this, they know they are dealing with people’s lives.”

The DPP also made her first detailed comments about the John Worboys case. She said she empathised with victims alarmed by the prospect of the black cab rapist’s release but defended prosecutors’ handling of his case, saying that it had been “well prosecuted” in a “very thorough prosecution”.

She admitted, however, that police mistakes during their investigations into Worboys, who was convicted of 19 offences, including one rape and five sexual assaults in 2009, meant there had been “missed opportunities” to bring other charges against him at the time.

But there was now no possibility of taking him back to court unless new complainants or new evidence emerged. Ms Saunders added: “An indeterminate sentence was not a light sentence and of course rapists’ sentences are tough but they don’t stay in prison forever.”