Petition for more Rape Cases to be Prosecuted - What Could This Mean for the Accused?

Petition to Encourage the CPS to Prosecute More Rape Cases 

Man sat on roof in the dark looking down
BBC News have reported that petitions are taking place calling for the Crown Prosecution Service (CPS) to increase their prosecutions for domestic and sexual assaults, including the most serious sexual offence of rape. The public supporting this petition are asking that where the case is one word against another, and where the evidence of the complainant is consistent, the CPS should be prosecuting more, and the jury should be left to decide, but what would this mean for the accused?

The Current Investigative Procedure

Disclosure of the allegation
When an allegation of a sexual or domestic assault is made the police will take an initial account from the person making the complaint, referred to as the complainant. They may also speak to any disclosure witnesses, these are people the complainant may have disclosed the alleged offence to. Disclosure witnesses are important to the police, they will hope that these people will add credibility to the complainant's account and in turn making it more likely that they are telling the truth. 

Arrest of the Accused
Once the police have gathered the initial information from the complainant, they are then likely to arrest the suspect, and in addition seize any items that are potentially of evidential value such as, and most commonly, mobile phones. An arrest isn't always necessary so it is important your lawyers consider the lawfulness of any arrest as part of their advice to you. 

Accused's Interview
When the suspect is arrested they will be taken to the police station for interview. Having representation with you during this interview is crucial. Prior to the interview your lawyers will obtain pre-interview disclosure from the police and will hold a private meeting with you, prior to the interview to explain this, explain the law, the strength and weaknesses of the evidence at that stage, and then advise you of the most beneficial way for you to respond to the questions in interview. 

Your interview may lead the police to explore further lines of enquiry, maybe you have raised an alibi and they are required to speak to that person, you may have mentioned CCTV in a particular area, or messages on your phone that contradict the complainant's account. The police have a duty to carry out a fair and balanced investigation, exploring reasonable lines of enquiry for both the complainant and the suspect and your lawyers should be pro-active in ensuring this is being done. 

Police Investigation
The police have now spoken with both the complainant and the accused, there are various other lines of enquiry which may arise during the investigation and here are a few examples of those: 

Forensic examination of electronic equipment 
This can take a number of months, there are huge forensic backlogs nationwide and we experience this as the most common reason for our client being repeatedly re-bailed. Equipment to be examined may include mobile phones, computers, iPads and cameras. 

The police may have also seized CCTV footage which requires enhancements and examination, this would be carried out by a forensic expert in CCTV. 

Medical examinations
The complainant may undergo medical examination by a doctor or nurse, if this is required it would usually be done when the allegation is made to ensure that forensic opportunities are not lost. 

Third party material 
If the complainant or the accused has raised the possibility of their being other material out there to assist then the police may, if it is reasonable to do so, obtain this. Third party material may include:

Social Services records
Mental Health records
Medical Records 
School reports 
Witness statements

Further interviews 
The accused and the complainant can both be interviewed by the police at any stage during the investigation, if the need to ask questions or clarify information arises.

Early Advice from the CPS
In complex cases the police may seek early advice from the CPS during their investigation and therefore the accused may be told that their case has gone to the CPS. The purpose of early advice is for the CPS to consider the material gathered by the police to date and to advise the police on any other lines of enquiry that should be taking before they can adequately apply the Full Code Test, which is the test that determines whether the accused is to be charged with an offence. The CPS will usually send the case back to the police with an action plan which suggests further enquiries to be made, the action plan must then be completed by the police. 

When the recommended enquiries are made the police will submit the case back to the CPS for a charging decision to be made. 

The CPS Charging Decision Process

Every allegation of rape that is referred to the CPS by the police is dealt with in accordance with the Code for Crown Prosecutors. The Code gives guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. It is not the function of the CPS to decide whether a person is guilty of a criminal offence, but to make assessments about whether it is appropriate to present charges for the criminal court to consider. The CPS assessment of any case is not in any sense a finding of, or implication of, any guilt or criminal conduct. A finding of guilt can only be made by a court.

Rape is an extremely serious offence and when cases are referred to the CPS by the police they are carefully reviewed by experienced lawyers working in specialist Rape and Serious Sexual Offences (RASSO) units.

Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test: 

Stage 1: The Evidential Stage. Considerations at this stage are: 
Can the evidence be used in court - there are special rules which relate to evidence and the evidence can only be used if it is admissible. 
Is the evidence reliable 
Is the evidence credible 
Is there any other material that may affect the sufficiency of evidence. 

Stage 2: The Public Interest Stage. Considerations at this stage are:

  • How serious is the offence alleged
  • What is the level of culpability of the accused
  • What are the circumstances and harm caused
  • Accused's age maturity at the time
  • What is the impact on the community 
  • Is prosecution a proportionate response
  • Do sources of information require protection 

In most cases prosecutors should only consider whether a prosecution is in the public interest after considering whether there is sufficient evidence to prosecute. However, there will be cases where it is clear, prior to reviewing all the evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further.

If the offence is so serious and an urgent charging decision must be made, the CPS will not have the required information before them to meet the Full Code Test and they will therefore apply the Threshold Test. This allows the CPS to make quick charging decisions. 

Having applied the test, reviewed all information the CPS will make a charging decision, they will determine what offences the accused will be charged with. 

The Accused

Whilst the above is taking place the accused is usually subject to police bail and has been waiting anxiously for decisions to be made. However, there is no requirement for the accused to just sit and wait, being pro active with your legal team can make a huge difference as to whether you are charged or not, if we can build your defence and support this with evidence why wait to do this at court?  

At Eventum Legal we are very much in favour of engaging with the police and CPS during the investigative stage, and taking a no stone unturned approach when our clients are accused of an offence, key benefits to our involvement during the police investigation are:
  • You are protected, we take over all correspondence with the police so your legal interests and rights are safe. 
  • Our support and advice during what can be a lengthy and taxing procedure
  • We represent you at all police station interviews 
  • Liaise with the CPS and the police to raise evidential weaknesses and potential lines of enquiry that will assist you 
  • Take witness statements on your behalf 
  • Obtain character evidence relating to both you and any witnesses involved, including the complainant
  • Prepare and submit written representations to the CPS where it is in your best interests to do so. 

Will the CPS change their approach to charging rape suspects? 

The push for prosecutions of sexual offences and offences arising from domestic violence to be increased is not new. For many years there have been concerns around the falling number of such prosecutions but the Code for Crown Prosecutors does set out a robust process that we can only trust to be applied correctly and fairly. 

In recent years police forces have changed their approach to investigating such offences for example; West Midlands Police said it had set up Operation Soteria to transform the way in which sexual offences were investigated. 

Unfairly to suspects the approach of the police is that sexual assault complainants must be believed and encouraged to come forwards, always leading to the suspect being investigated which in itself is enough to destroy their lives and lives of those around them, regardless of whether the case gets to court. However, the decision to charge a suspect with such serious offences is not that of the police, and if the CPS can be satisfied that despite what the complainant is saying there are clear issues and evidential difficulties so much so a jury could not be expected to convict the accused, then they must not charge the suspect. 

How We Can Help? 

Pre-charge engagement between your lawyers and the police is key in such cases. The government and CPS encourage pre-charge engagement as it can prevent cases going to court unnecessarily and costing the tax payer and wasting court time. Our lawyers are not afraid to challenge the police, we put our clients first to ensure they are being treated fairly, that they are heard and that their defence is advanced strongly. We have witnessed the positive affect of pre-charge engagement and representations, leading to very serious allegations being no further actioned, which without our involvement could have easily been charged. 

If you, a family member or friend has been accused of a domestic or sexual offence contact our lawyers today and we can work with you to put an action plan in place 

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