INV0033

Supplementary written evidence submitted by the End Violence Against Women Coalition (INV0033)

 

Introduction

 

  1. The End Violence Against Women (EVAW) coalition is a leading coalition of over 110 specialist support services, NGOs, academics and survivors working to end violence against women. In November 2020, we published a joint report with Rape Crisis England & Wales, Imkaan and the Centre for Women’s Justice, entitled The Decriminalisation of Rape, setting out why the justice system is failing rape survivors and what needs to change.

 

  1. This report preceded the Government’s own End to End Rape Review (June 2021), in which the Government admitted that “victims of rape are being failed” and set out an action plan, drawing on our joint report and broader research, including surveys with survivors.
     
  2. Six months on from that report, EVAW has a number of concerns in relation to the Crown Prosecution Service’s (CPS) approach to rape and sexual offences. We seek to raise these with Committee members directly in advance of the Director of Public Prosecution’s (DPP) evidence session on Monday 13th December. These relate to:

 

 

The CPS’ concerning trajectory towards meeting 2016 Rape Charging Targets 

 

  1. Existing statistics suggest that at the current trajectory, it will take the CPS 29 years to return to 2016 charging levels - a target intended to be met by the end of this Parliament in the Government’s Rape Review.[1] This target was itself subject to considerable criticism given that in 2016, survivors and women’s groups were campaigning about the poor outcomes in the criminal justice system in relation to rape and sexual offences. 

 

  1. The Government also committed to publishing performance “scorecards” for police and prosecutors every six months (now updated to quarterly) as part of a “drive for transparency and to hold all parts of the system to account.” These were largely introduced in response to demands for more accountability from the women’s sector, including EVAW and its members. The first set of scorecards, published on Thursday 9 December, provide further evidence of concerns about the CPS’ performance, including that: 


 

 

Suggested question:
 

  1. What is the CPS’ understanding as to why the data shows that the CPS is not on trajectory to meeting the target of returning to 2016 charging levels?

 

Lack of commitment to an equalities analysis

 

  1. We have serious concerns about the absence of equalities data for victims with overlapping protected characteristics in the scorecards, intended to  provide ‘transparency and accountability’.[3] When presented with data on disparities in the criminal justice system for Black and minoritised victims,[4] the CPS also recently claimed that race and ethnicity "plays no part" in charging decisions. We are concerned that the lack of commitment to acknowledging or seeking to identify whether and why different groups of victims experience poorer outcomes, indicates that there is no intention or ambition to reduce these gaps/inequalities. 

 

Suggested questions:

 

  1. Is the CPS familiar with any data which identifies the experiences and outcomes for victims with overlapping protected characteristics in the criminal justice system?
  2. Does the CPS intend to reduce inequalities in outcomes for victims with overlapping protected characteristics, and how so? 

 

Ongoing delays to Operation Soteria in regards to academic and independent insight

 

  1. Operation Bluestone (police-specific) and Operation Soteria (across the police and CPS) have entailed work with teams of academics and researchers from multiple academic institutions to analyse police case files and data, as part of the police’s commitment to identify areas of learning and potential transformative change when it comes to the police response to reports of rape. An intrinsic part of Operation Soteria should be for similar scrutiny of the CPS. However, we are concerned that no academics have been formally engaged to work with the CPS to date. In our view, independent academic scrutiny is important to ensure transparency, accountability and partnership-working. 

 

  1. Operation Soteria has identified a number of pathfinder sites and proposals of areas to test, however without effective monitoring, and clear matrices on which success can be measured these sites will be incomparable. 

 

Suggested questions: 

 

  1. Has an independent evaluator been assigned to Operation Soteria? If not, is there a timeframe the CPS is working to in order to secure an independent evaluator(s) for Operation Soteria?
  2. Will the CPS work with VAWG sector organisations in the development of its Operation Soteria evaluation measures, to ensure that the appropriate metrics are used to capture victim and survivors experiences? 

 

Early Investigative Advice by Prosecutors to Police in Rape Cases 

 

  1. Early Investigative Advice (EIA) or ‘Early Advice’ is the process of prosecutors providing guidance and advice to help police “to determine the evidence that will be required to support a prosecution or to decide if a case can proceed to court.”[5] This process is not formalised and so can often take the form of casual (and unaccountable) contact between police and prosecutors, such as phone calls. As outlined in our Decriminalisation of Rape report, many No Further Action (NFA) decisions are taken after this EIA is provided. There is currently a lack of transparency around this process, and any meaningful review process for victims where a case is NFA’d by police following a negative EIA from the CPS. The position taken is that essentially the police are doing what they are told by the CPS. 

 

  1. Additionally, there is no available data for the timeframe for when EIA should be sought, leading to inconsistencies. This can mean that advice is sought very early on and can shape an investigation in some areas, but could only be a cursory, late add-on in other areas. Furthermore, as is a recurring pattern, there is currently no data on the demographic breakdown of the victims in cases where EIA is sought and how this relates to NFA or charging decisions, which limits an equalities analysis of EIA. We understand that the operation of EIA is within the scope of Operation Soteria, but it is unclear to what extent this will address any of the issues outlined above. 

 

Suggested questions: 


 

  1. Organisations supporting victims and survivors have raised concerns that Early Investigative Advice is sometimes used as an avenue by which the CPS influences the police to take No Further Action, or against making a referral to the CPS. What are the mechanisms for transparency and accountability as to how Early Investigative Advice is used, to counter this risk or perception? 

 

Pre-Trial Therapy

 

  1. We would be extremely concerned if the Crown Prosecution Service (CPS) were to publish guidance which lowers the bar on when police should request victims’ counselling notes, and decrease the privacy and protections available to rape victims.[6] Any lower bar would increase the frequency of police sharing sensitive personal data and result in fewer survivors of rape accessing lifesaving and life-changing therapeutic support. This is at a time when recent ONS data shows that 63.37% of rape survivors experienced mental or emotional problems and 10.2% attempted suicide.
     

Background
 

  1. Pre-Trial Therapy is an essential source of support to rape victims. The current guidance was first published in 2002 and is outdated and unclear. The CPS spent a number of years re-drafting the guidance, in response to calls from the Violence Against Women and Girls (VAWG) sector, survivors and criminal justice agencies. The guidance was consulted on in 2020, and set out a basis on which counseling notes should be requested by the police. This was based on established case law in R v Alibhai where there is suspicion on the part of investigator that the material is damaging to the prosecution or of assistance to the defendants. It states:

 

"In R v Alibhai [2004] EWCA Crim 681, the Court of Appeal held that before material is obtained from a third party, there must be suspicion on the part of the investigator, disclosure officer or prosecutor that the material or information might be disclosable. Therefore, before obtaining third party material it must be concluded that the third party not only has potentially relevant material but that the material is not neutral or damaging to the defendant but damaging to the prosecution or of assistance to the defendants.

 

Furthermore, R v Alibhai states that even if there is the necessary suspicion, the prosecutor is not under an absolute obligation to secure the material or information from the third party. The prosecutor has a "margin of consideration" as to what steps to take in any particular case."

 

Recent changes
 

  1. The above test is referenced in other CPS published documents, however we have identified that the CPS recently and covertly changed its Disclosure Manual to remove this position (we are able to provide further details of this on request). The CPS recently published a Commitment to Rape Victims, which cited a different test - that of relevancy. It states:

 

  1. “If you receive therapy before a trial the police must only collect notes from your therapist or therapy provider in pursuit of a reasonable line of enquiry. It will only be a reasonable line of enquiry if there is some reason to believe that the notes will contain material relevant to the case.”

 

  1. The revised CPS position appears to be in line with the Attorney General's Office  Disclosure Guidelines, which advise disclosure based on a belief that the third party might hold material which is ‘relevant’ to the investigation. Given that consent and credibility of a victim are routinely used by the defence in rape cases, it is therefore arguable that all therapy notes can be seen as “relevant”. The guidelines state: 

 

"An investigator, disclosure officer or a prosecutor may believe that a third party (for example a local authority, social services department, hospital, doctor, school, provider of forensic services, or CCTV operator) has material or information which might be relevant to the case. If so, then reasonable steps should be taken to secure and consider the material held by the third party where it appears that such material exists and that it may be relevant to an issue in the case."

 

  1. As a reminder, the definition of 'relevant material' is as follows:

 

"Material may be relevant to an investigator if it appears to an investigator or to the officer in charge of the investigation or to the disclosure officer that it has some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances of the case unless it is incapable of having any impact on the case"

 

  1. This approach of relevancy was established in 2013 by the Attorney General’s Office. It is unclear as to why this position was adopted, or the process involved in establishing a position that was contrary to case law.  To our understanding no survivors of VAWG organisations were consulted on this. The CPS' approach to relevance of pre-trial therapy notes also changed without consultation with the violence against women and girls (VAWG) sector. 
     

Suggested questions: 

  1. Is the CPS planning to publish guidance on pre-trial therapy which will effectively lower the bar for when police should request victims’ counselling notes?
  2. Has the CPS considered what the impact of reducing the threshold for disclosure of victims’ counselling notes might be on victim attrition in the criminal justice process?
  3. Following on from that, does the CPS think that any such changes to the disclosure guidance could undermine the Government’s progress towards returning to 2016 prosecution targets?

 

December 2021


[1] https://www.endviolenceagainstwomen.org.uk/campaign/rape-justice-fail/

 

[2] https://www.endviolenceagainstwomen.org.uk/rape-scorecards-show-broken-justice-system-for-rape-survivors/

[3] The 2019 Crime Survey found that women with mixed ethnicity experienced the highest prevalence of rape of any ethnic group (3.4%), and over four times the level of prevalence for white women (0.8%). The prevalence of rape for Black women was double (1.6%) that for white women

[4] Data obtained by Freedom of Information request from NationalWorld found that white rape victims are 1.8 times more likely than Asian victims to see their rapists charged. Domestic abuse cases with white victims are likewise 1.5 times more likely than those with black victims to result in charges. https://www.nationalworld.com/news/crime/police-more-likely-to-bring-charges-for-rape-sexual-assault-and-domestic-abuse-cases-when-victim-is-white-3441205 

 

 

[5] https://www.cps.gov.uk/legal-guidance/police-and-cps-relations

[6] A recent report by the Independent Inquiry into Child Sexual Abuse on support services, the concluded that “across all support services, the most highly rated by survey respondents were counselling provided by a charity/voluntary organisation specialising in child sexual abuse and sexual abuse and/or rape support services provided by a specialist charity/voluntary organisation”(IICSA, 2020a: 12).