An undisclosed Crown Prosecution Service (CPS) target may be behind huge declines in numbers of rape suspects charged since 2016, the Gazette can reveal.
Rape prosecutions in England and Wales have plummeted to their lowest level since 2008, despite record numbers of allegations to police. Women’s rights organisations brought a legal action against the CPS this autumn, alleging that a covert change in its internal practice was partly responsible.
The CPS has previously denied any change in its approach to charging rape. But it has now admitted to the Gazette that it imposed targets on staff between 2016 and 2018 that were ‘not appropriate’ and may have acted as a ‘perverse incentive’ on prosecutors, deterring them from charging less straightforward cases.
The performance measures effectively treated all acquittals and cases that were dropped before trial because new evidence came to light as prosecution failures – even where these cases reflected the justice system working well.
The targets were never made public by the CPS but are referred to in inspection reports on the service’s performance, which led to their discovery by the Gazette.
Lawyers involved in the legal action against the CPS now say its claim to have made no change to its policy on rape was misleading. Kate Ellis, a solicitor with the Centre for Women’s Justice, said: ‘There has been a concerning lack of transparency from the CPS’.
The CPS denies the targets amounted to a change in policy, saying they were intended as benchmarking tools.
Levels of ambition
Under a long-standing code of practice for Crown prosecutors, offenders are supposed to be charged if prosecution is in the public interest and the likelihood of conviction by an impartial jury is ‘realistic’ – more than 50%.
But from 2016 onwards the CPS asked staff to bear in mind an additional figure: a conviction rate target called a ‘level of ambition’. For rape, the ambition was for 60% of all charges were to end in a conviction. The measure was not referred to in the CPS’ annual ‘Violence Against Women and Girls’ reports for the period or discussed in other public CPS documents.
Even higher conviction rate ‘levels of ambition’ were applied to domestic abuse (75%) and hate crime (85%), with separate targets given for magistrates court and Crown court cases, at 85% and 81.5% respectively.
‘Levels of ambition are exactly what they sound like – a performance benchmark which the organisation hopes to achieve by the end of the financial year,’ the CPS said in a statement. ‘When setting level of ambition, the intention is that they should be both challenging but realistic to achieve.’
The CPS says it dropped all the conviction rate targets in April 2018, two years after their introduction – although the CPS’ inspectorate was still using them to measure the service’s performance in May 2019.
‘We stopped using conviction levels of ambition as we acknowledged they were not an appropriate tool to measure our success in bringing the right cases to court,’ it said.
The levels of ambition ‘may not adequately reflect that both an acquittal and a prosecutor stopping a case that no longer meets the code test can be examples of the system working properly,’ the CPS added:. ‘We are clear that all our cases should be assessed on whether there is a realistic prospect of conviction based on individual merit – no other reason.’
A CPS spokesperson told the Gazette that fears had also been raised the measures could create a ‘perverse incentive,’ influencing prosecutors to charge fewer suspects. That is because conviction rates can be ‘gamed’ by prosecuting smaller numbers of stronger cases and dropping weaker ones.
That is because conviction rates can be ‘gamed’ by prosecuting smaller numbers of stronger cases and dropping weaker ones that are at higher risk of failing at trial. However doing this may mean that fewer criminals are kept off the street, because some of those weaker cases would still have ended in a guilty verdict.
In the late 2000s the Metropolitan Police asked officers to increase their ‘detection rate’ – the proportion of rapes recorded in London that proceed to prosecution. Management in one borough, Southwark, focused on this target above everything else. Officers responded by encouraging rape complainants to withdraw their allegations in cases where the evidence was weak. This reduced the volume of recorded rapes and making it easier for officers to reach their detection rate target.
There is circumstantial evidence to suggest that the rape conviction rate ‘level of ambition’ could have acted as a perverse incentive in the same way.
Last year the Guardian reported that senior CPS lawyers had conducted training sessions throughout 2017 on how to improve rape conviction rates by removing weaker cases from the system. A CPS insider who attended a session claimed staff were told: ‘If we took 350 weak cases out of the system, our conviction rate goes up to 61%,’ that they ‘should be winning more trials’, and that this could be achieved with ‘a touch on the tiller’ when charging decisions were made.
The CPS did not deny the report but insisted charging decisions were made according to the test laid down in the prosecutors’ code.
The Gazette’s investigation also uncovered evidence of heavy pressure on the prosecutors. The Gazette’s investigation also uncovered evidence of pressure on the prosecutors to meet the 60% target from the CPS’s own inspectorate, HMCPSI, which was critical of low conviction rates even where they had drastically increased the numbers convicted. The inspectorate continued to use the levels of ambition to assess the CPS in reports published in spring 2019.
The Cabinet Office’s 2019 end-to-end review of the criminal justice response to rape, which was leaked to the Gazette, found CPS decisions to prosecute had declined at a faster rate than the decline in referrals.
Prosecutors with record numbers of convictions were criticised
Between 2017 and 2019, the CPS Inspectorate, which reports on the service’s performance in 14 areas across England and Wales, lambasted areas that failed to achieve the CPS ‘level of ambition’ of a 60% conviction rate.
Some areas received criticism despite achieving record numbers of convictions, meaning more rapists off the streets.
HMCPSI said CPS Mersey Cheshire was ‘let down’ by a ‘worrying decline’ in its rape conviction rate, which represented ‘the greatest risk to the area’. ‘In 2014-15 it was 65.4%, declining to 57.3% in 2016-17,’ the Inspectorate said.
What the Inspectorate didn’t say was that over that same period, according to the CPS’ own published data, numbers of rape convictions in the region had risen from 96 to 138 – a whopping 44% increase.
Mersey Chesire then introduced a ‘more stringent triage process for police files’ on rape.
The following year its conviction rate soared well above the ‘level of ambition’ to more than 68%. But the region secured just 81 rape convictions – it’s lowest level for years.
The Inspectorate said of the West Midlands: ‘The successful outcome rate for rape cases in the Crown Court was 52.9% in 2016-17, representing a significant decline from 65.1% in 2013-14.’ Numbers of rape convictions rose during this same period from 226 to 345. In contrast the South West area was commended for its 67% rape conviction rate in a year that saw numbers of convictions fall drastically.
Introduction of the target coincided with a period of drastic decline in numbers of rape cases charged. In the year to April 2016, 3,910 alleged rapists were charged and 2689 were convicted – a conviction rate of 57.9%. In the following two years, after the introduction of the target, numbers of charges fell drastically despite increasing numbers of recorded crimes. By April 2019 there were only 1758 charges brought and just 1925 convictions. The conviction rate had leapt to 63.4%.
The CPS has blamed the fall in prosecutions on a drop in police referrals of cases for charge, as well as delays in the system caused by a new focus on disclosure of electronic material and new bail rules. The Gazette has found evidence that police forces were also benchmarked against the CPS levels of ambition, which may have affected referrals.
However this is not the whole story: the Cabinet Office’s 2019 end-to-end review of the criminal justice response to rape, which was leaked to the Gazette, found CPS decisions to prosecute had declined at a faster rate than the decline in referrals.
The End Violence Against Women Coalition, which is bringing the judicial review against the CPS, believes prosecutors have switched from making charging decisions based on the objective evidence to a system of second-guessing jury prejudices.
‘When we first challenged the CPS about a change in their approach to prosecuting rape, they stated that they apply only a strict legal test to decision-making,’ said Ellis, who is representing the Coalition in the case. ‘The evidence revealed by the Gazette shows that statement was misleading – we now know they were striving to meet conviction rate targets.’
The CPS denies this. ‘The use of monitoring tools must not be confused with prosecution policy decisions,’ it said.
But criminal solicitor Ian Kelcey, who chairs the Law Society’s criminal law committee, said the use of the targets was ‘worrying’ and questioned whether the CPS was ‘managing reputation as opposed to prosecuting cases in accordance with the published and understood guidelines’. He also questioned whether restrictions on CPS resources were behind the introduction of the levels of ambition.
‘Setting numerical targets is neither an appropriate nor effective tool to deliver justice,’ he said. ‘It is right that these have been dropped but the CPS should explain how they came about and should adopt a far more transparent approach in future.’
Caroline Goodwin QC, chair of the Criminal Bar Association, added: ‘Anything that leads to a screening out of reported crime for charging purposes, so that quantities of crimes charged fall simply in order to achieve a higher proportion of convicted crimes, will only serve to undermine confidence in the criminal justice system and lead to a failure in the state’s discharge of a core duty to protect the public from harm.’
Internal CPS performance targets ‘should be weighted towards quality of process,’ she added.
HMCPSI has defended its use of the levels of ambition to assess CPS areas on grounds that it did not set these targets and ‘can only assess the CPS on targets set by the CPS’. In September 2019 the inspectorate was commissioned by the director of public prosecutions to conduct a review of the CPS’ handling of rape cases. A spokesperson for the inspectorate said the review was due for publication in December and would not include any reference to the rape level of ambition.
A CPS spokesperson said: ’We are very clear there has been no change of policy in how we prosecute rape.
’Levels of ambition were used to track outcomes against a range of cases with vulnerable victims including rape, domestic abuse and hate crime. We still monitor outcomes but stopped measuring performance in this way as we recognised it may not adequately reflect that both an acquittal and a prosecutor stopping a case that no longer meets the code test can be examples of the system working properly.
‘We are in the process of reviewing all CPS performance measures. The use of these monitoring tools must not be confused with prosecution policy decisions.’
Melanie Newman is a freelance journalist