Imagine becoming the victim of a serious crime. You go to the police, show them injuries and other evidence, and cooperate with a gruelling criminal investigation. You hope for and expect justice – but then you’re told the attacker won’t be prosecuted. This is what is happening to 24 out of every 25 women who report a rape in this country, according to women’s groups who have launched a legal action against the Crown Prosecution Service (CPS) this week.
They point to the undeniable fact that the rape prosecution rate in Britain has collapsed, with only four per cent of reported cases actually getting to court. And it is happening at a time when more rapes than ever are being reported to the police, up by 173 per cent between 2014 and 2018.
How could this possibly represent justice?
These women rightly expect redress from the state – but they’re unlikely to get it. The failure to prosecute in so many cases is especially worrying at a time when I’ve heard police and prosecutors say that perpetrators are becoming more violent, leaving more victims with physical injuries. Yet the number of rape cases leading to charges and a trial is down by 44 per cent, risking a catastrophic loss of confidence in the criminal justice system.
Who would put themselves through a hugely intrusive criminal investigation, involving handing over mobile phones and providing access to medical and school records, if they knew that at the end of the process no one will be charged? Even more to the point, what message is being sent to men accused of rape if so few of them ever see the inside of a courtroom?
Unless we believe that almost every woman who reports a rape is lying – an unlikely and insulting proposition – the only credible alternative is that thousands of sexual predators know that they have nothing to fear. There’s simply no barrier, no deterrent, to stop them doing the same thing again.
So why is this happening?
The women’s organisations says it’s because prosecutors are ‘second-guessing’ the prejudices of juries instead of making decisions on the merits of each individual case. The CPS denies it, saying that decisions to prosecute are based solely on a series of legal tests and "we always seek to prosecute where there is sufficient evidence to do so".
But concern about the collapse in the prosecution rate has been growing since last autumn, when anonymous sources revealed that the CPS was encouraging prosecutors to drop ‘weak’ cases. Lawyers for the End Violence Against Women Coalition (EVAW), which is bring the legal challenge, claim there has been an unannounced change of policy by the CPS, which they accuse of dropping cases they think will play badly with juries.
"Our society has agreed that really serious allegations with strong evidence should be tested in court", says Sarah Green, Co-director of EVAW. "So it can’t be right that our independent prosecution service has covertly made a significant change which we believe is resulting in anonymous decision-makers discarding cases that should be heard in court".
Women’s organisations argue that many of the discontinued cases, far from being weak, contain "compelling" evidence. They have compiled a dossier of 21 cases that didn’t get to court, including that of a woman raped at knifepoint and held prisoner for two days by her boyfriend. The CPS dropped it on the grounds that WhatsApp messages she sent to placate her attacker, who was known by the police to be violent, could be misconstrued by a jury.
The women’s organisations are hoping to crowd-fund a judicial review, arguing that the policy change discriminates against women and girls, and represents a significant failure to protect their human rights. It is a route increasingly being used by lawyers representing victims of male violence, who feel that legal action is the only means they have of achieving justice. The Supreme Court has already upheld a High Court ruling that the police have a duty to investigate serious violence against women, and can be held accountable in the courts if they fail in that duty.
But the question remains - why it is being left to victims of sexual violence to enforce the law, with all the costs and effort that involves? Leading lawyer, Jolyon Maugham QC, gets to the heart of the matter when he says that "the failure of the criminal justice system effectively to deter rapists is a genuine scandal".
To be clear: it is not just existing victims of sexual violence who are being let down. A system that fails to convict the vast majority of rapists is, in effect, sending a message to sexual predators. Do we really want to live in a country where there is virtual impunity for rapists?