A legal challenge against the Crown Prosecution Service (CPS) over its policy on prosecuting alleged rape and other serious sexual offices has been dismissed by the Court of Appeal.
Women’s rights campaigners described the ruling as “deeply disappointing” and marking “another establishment betrayal of victims of violence against women and girls”.
The End Violence Against Women Coalition (EVAW) claimed a change in policy meant prosecutors became more risk-averse when deciding whether to charge alleged sexual offences between 2016 and 2018.
The group said it had moved away from a “merits-based approach” to an “unlawful predictive approach when deciding whether to charge”, which had given rise to “systemic illegality”.
Lawyers representing EVAW said this alleged change in policy has led to a “shocking and unprecedented decline in both the rate and volume of rape offences charged by the CPS”.
But the Court of Appeal dismissed the case, ruling there was no change in policy by the CPS in relation to the prosecution of sexual offences.
The CPS has argued there has been no change in policy and that the removal of dedicated “merits-based approach” guidance” did not result in any substantial change” in charging decisions.
Monday’s ruling comes amid widespread criticism of the Metropolitan Police’s approach at a vigil for Sarah Everard at Clapham Common on Saturday.
Scuffles broke out at as police surrounded a bandstand covered in flowers left in tribute to Everard, and officers were seen grabbing several women, leading them away in handcuffs.
It also comes as MPs debate the Police, Crime, Sentencing and Courts Bill in the House of Commons – which some have argued contains “some dangerous aspects” including “curbs on protest”.
More than 150 human rights organisations have signed a letter to home secretary Priti Patel and justice secretary Robert Buckland warning that the legislation would be “an attack on some of the most fundamental rights of citizens”.
The CPS faced a barrage of criticism after rape convictions in England and Wales fell to a record low in 2020. Figures showed prosecutions and convictions had more than halved in three years, despite the number of reported rapes increasing.
A challenge by EVAW was initially refused by the High Court last March and judges refused permission for the group’s judicial review to go ahead. The decision was later reversed by the Court of Appeal.
In a judgement on Monday, Lord Chief Justice Lord Burnett said the removal of references to the “merits-based approach” in guidance for prosecutors “was not a change of legal substance”.
“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,” the judge said.
“Stripped of references to the merits-based approach, the remaining guidance is not unlawful.”
He added: “We reject the submission that the decision created any risk of systemic illegality.”
Following Monday’s ruling, EVAW director Andrea Simon said the judgement marked “another establishment betrayal of victims of violence against women and girls”.
In a statement, she 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.”
“Today’s judgment lands in the midst of a national conversation about how unacceptably commonplace violence against women is and the constraints women feel they have to put on their freedoms to simply go about their lives.
“Rape urgently needs to be at the heart of the political agenda. There are systemic failings – with some victims highly invisible to the justice system because of their race, disability or background.
Labour’s shadow solicitor general Ellie Reeves also described the ruling as “disappointing” and claimed it “endorses what is effectively decriminalisation of rape”.
“Survivors of sexual assault are being failed by the government.
“Rape prosecution rates are at their lowest level on record in England and Wales, victims of rape are waiting years for their court date and only one in seven victims have faith in the criminal justice system,” Reeves said.
“We need to see urgent action from the government to address these failures, but the Police, Crime, Sentencing and Courts Bill doesn’t even mention women, let alone act to improve rape conviction rates.
“Labour has set out a survivors’ support plan and recommendations that the Government should implement in its long overdue end-to-end rape review.”