Court of Appeal says CPS rape prosecution guidance is not ‘unlawful’ as campaigners lose legal challenge

Monday, 15th March 2021, 2:57 pm
Updated Monday, 15th March 2021, 2:58 pm
The Court of Appeal has dismissed a legal challenge against the Crown Prosecution Service (CPS) over its policy on the prosecution of serious sexual offences (Photo: Shutterstock)
The Court of Appeal has dismissed a legal challenge against the Crown Prosecution Service (CPS) over its policy on the prosecution of serious sexual offences (Photo: Shutterstock)

The Court of Appeal has dismissed a legal challenge against the Crown Prosecution Service (CPS) over its policy on the prosecution of serious sexual offences.

The End Violence Against Women Coalition (EVAW) said that the CPS moving away from a “merits-based approach” in 2016-2018 has given rise to “systemic illegality” and this moved towards an “unlawful predictive approach when deciding whether to charge” alleged sexual offences.

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'Deeply disappointed at this outcome'

Lawers for EVAW said that the removal of references to the merits-based approached has led to a “shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS”.

EVAW’s director, Andrea Simon, said the group is “deeply disappointed at this outcome,” but that they “have no regrets about holding institutions accountable for the effective decriminalisation of rape.”

Ms Simon said: “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.

‘We do not consider that it was unlawful to decide to remove references to the merits-based approach’

At a hearing in January the CPS said there had been no change in policy and that the removal of dedicated “merits-based approach” guidance “did not result in any substantial change” in regards to charging decisions.

The Court of Appeal dismissed the EVAW’s case on Monday (15 March) and ruled that the CPS did not change its policy in relation to the prosecution of sexual offences.

In the ruling, Lord Chief Justice Lord Burnett said 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."