The CPS is failing victims by taking a ‘bookmaker’s approach’ to rape cases. That’s why we’re taking legal action

We are living in a time of enormous change in attitudes towards sexual violence. The #MeToo movement is emblematic of women rejecting the idea that we should keep quiet about rape and not name it when it has happened. Changing attitudes and reduced shame are driving a huge surge in reporting of rape to the police, and an even bigger increase in the numbers of women seeking counselling support.

In a time like this it is perfectly reasonable to expect that our police, prosecution service and courts should simply keep up with the “demand” for justice after such a serious crime. Rape will never be an easy crime to prosecute, but the women, and men, who seek justice should have the best available “service” when they report it, including a fair decision about whether to proceed to court.

This is why our coalition of women’s organisations has begun legal action against the Crown Prosecution Service today. We have strong evidence to show that the lawyers who make decisions at the CPS about which cases will and will not be charged and go forward to court, have significantly changed the way they are making these decisions. As more women are coming through the front door, they have raised the bar on what cases make it through.

Over the last decade the CPS has actually done painstaking work towards improving access to justice for rape survivors. They studied the barriers in particular cases. They learned that “vulnerable witnesses”, such as the girls and young women in the so-called “grooming” trials, were likely to be deemed “poor witnesses” who would easily be induced to refer to the defendant as their “boyfriend” and after that be damned.

The impact of understanding how “vulnerability” is related to inequality – in terms of age, ethnicity, social class and disability – was huge, and really helped the CPS at the time to be confident in developing a stronger approach.

The resulting “merits-based approach” to decision-making in rape cases was absolutely critical. It means building a prosecution case around all the “merits” of a case, and where you assume the jury will be objective and not prejudiced. Prosecutors became better informed about “rape myth” prejudices, and when preparing a case they got ready to explain, for example, why a traumatised woman would message her partner after he raped her. Prosecutors came to a better understanding of how to build a case on the law on sexual consent – the seeking as well as the giving of consent, and being in a fit state to do so.

The road to better chances of a trial for women reporting rape still had far to go but change was under way up to about 2017, and this is shown in justice statistics. But then, the CPS appeared to change direction.

The evidence for our legal case includes details of a semi-official training course of rape prosecutors in 2017 which switched away from building a case on “merits”, and rather emphasised the need to improve conviction rates. This meant switching rape decision-making to some extent back to second-guessing what a prejudiced jury might think. It is target-chasing and it has terrible potential consequences for victims. And it has happened while “demand” was increasing with reported rapes now almost tripled since 2014. But while the chances in 2014 of having a case reported to the police ending up in court was around 1 in 5, it is now 1 in 25.

The terrible thing about our prosecution service switching back to second-guessing jury prejudices and raising the bar for charging a rape case, is the serious potential this has to create a “feedback loop” through the system.

In particular, police officers in local areas may soon get the message that this or that “kind” of case is unlikely to meet threshold any more, so their decisions and practice change too. It is deeply irresponsible to have done this, and any decision to change strategy or policy on rape cases should have been put to full consultation, and should have been assessed for its likely consequences. There was a 23 per cent drop in the charging rate in 2017. What did CPS leaders think would happen?

We have tried to raise this with the CPS and indeed with government. Right now a Rape Review run by the Home Office and MOJ is looking into police and CPS’s “performance” on rape, and we hope to see strong recommendations from that this year. But the “merits-based approach” at the CPS is too precious to lose. This is why we have begun legal action. We have strong legal precedent with the Supreme Court upholding last year that the police have a human rights-based duty to provide effective investigations in rape cases. The CPS’s duty is comparable.

We are reluctant to start this legal action. A small charity like ours, and the women’s groups who are our members and who are doing the frontline caring work that never stops, have neither the expertise nor the money for such a specialist challenge. But we will not stand by while such a drastic change to our access to justice is unlawfully made.

Sarah Green is co-director of the End Violence Against Women Coalition