Campaigners have lost a legal battle over plummeting rape prosecutions at the Court of Appeal.
Women’s groups accused the Crown Prosecution Service (CPS) of causing a drop in the number of cases charged by moving away from a “merits-based approach” and selecting only “safe” cases.
But the CPS denied that and won the first round of the legal battle at the High Court.
On Monday, the Court of Appeal supported its decision and dismissed the campaigners’ application for judicial review.
In the year to September, only 1.5 per cent of recorded rapes were prosecuted in England and Wales, having fallen from 7 per cent in 2015-16.
The End Violence Against Women Coalition (EVAW) argued 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 told the court it led to a “shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS”.
The CPS maintained that 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.
EVAW’s barrister Phillippa Kaufmann QC said that prosecutors were previously told to take an “objective approach” to cases and “put aside myths and stereotypes” about rape cases and rape victims.
Ms Kaufmann said both the volume of rape cases charged and the charging rate have fallen since 2016-17, with the number of rape cases charged in 2017-18 down by 23 per cent compared to the previous year.
Tom Little QC, representing the CPS, said the term “merits-based approach” was removed out of a concern that some prosecutors were using it “as though it was an alternative, lesser, standard by which to determine whether the evidential test was met”.
He argued that information provided to prosecutors about the merits-based approach was “absolutely not an exhortation to prosecutors to move away from the objective assessment of evidence towards a bookmaker’s approach”.
Mr Little said the CPS had not conducted a “volte-face” with its policy on charging alleged rapes.
Representing three judges who heard the case at the Court of Appeal, the Lord Chief Justice dismissed EVAW’s application for judicial review on Monday.
In a written judgment, Lord Burnett of Maldon said the evidence provided by the CPS “comprehensively undermines the grounds advanced by” campaigners.
“The changes in language in the guidance did not change its effect,” he added. “The full code test [applied to all criminal charges] remained.”
Lawyers for EVAW argued that the CPS had changed its policy or practice in a way that was unlawful; “irrational”; created a risk of “systemic illegality” by confusing prosecutors about how they should decide to charge cases; and breached transparency requirements.
They also argued that the CPS failed to have due regard to the need to “eliminate discrimination, harassment, victimisation and any other conduct that is prohibited”.
But the Court of Appeal dismissed the arguments and 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 ... we reject the submission that the decision created any risk of systemic illegality.”
The Lord Chief Justice added: “The whole underlying aim of the change was to improve decision-making and conviction rates in an environment where most complainants were women.”
In a statement after the ruling, EVAW said it would have to pay about £75,000 to cover the CPS’s legal fees, unless those costs were waived.
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 EVAW’s evidence, some of which could not be presented to 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.”
Max Hill QC, the director of public prosecutions, said the legal test that guides every charging decision has not changed and inspections had found no evidence of a risk-averse approach.
“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,” he added.
“We must now rebuild public confidence that every allegation of rape or sexual assault will be fully investigated by the police and will go before the courts whenever the legal test is met.
“I share the deep public concern that, while the number of rape allegations has increased significantly in recent years, the number going to court has fallen.
“The CPS is actively involved in the cross-government review which has been working for almost two years to understand and address the reasons behind the trend. While that work continues, it is clear no single factor has led to the drop in cases, and meaningful change will need a system-wide approach.”
The findings of the government’s review of the handling of rape cases across the criminal justice system is to be published this spring, and the CPS and police have agreed a separate action plan on sexual offences.