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 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.
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 Girl s’ reports for the period or discussed in other public CPS documents.
‘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, 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.
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.
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.
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’.
‘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.’
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.'
Watch shadow attorney general Baroness Chakrabarti's reaction to the news below:
“The would be a scandal in the developing world… but in the fifth richest nation on Earth?”— BBC Newsnight (@BBCNewsnight) November 13, 2019
Shadow Attorney General Baroness Chakrabarti says she is “shaking in shock” at news that rape prosecutors in England and Wales were given a 60% conviction rate target#Newsnight pic.twitter.com/E9cPjqjqXE
Melanie Newman is a freelance journalist