These are routine meetings between the VC and DPP to discuss victim related issues that fall within the remit of the Crown Prosecution Service (CPS). This is the first such meeting since the new DPP took up his appointment in November 2018.
The VC raised her concerns about the fall in the number of rape charges and whether that indicated a change in policy or practice. The DPP responded that the CPS was not changing the way it took decisions on whether to make a charge for rape or sexual assault. Such decisions were based on the evidence and whether there was a public interest.
The CPS appetite for pursuing such cases remained the same. CPS is a demand led organisation; it is not resource led. Whenever the police bring a case to its attention, the CPS will always consider it. The DPP acknowledged a drop in the number of overall crime and serious sexual offences prosecutions and convictions, but highlighted that the number of referrals from the police to the CPS had also dropped.
The DPP explained the process of making a referral. There is a well-established process whereby the police contact CPS Direct on cases requiring immediate charging authority for suspects in custody. This service currently operates 24 hours a day, 7 days a week, and enables decisions on potentially dangerous suspects to made quickly, providing the case meets the tests set out in the Code for Crown Prosecutors.
The CPS and police are currently testing a new charging model which enables the police to obtain charging authority on custody cases in office hours from their local CPS office. Cases requiring an immediate decision are referred to as “red” cases and those cases where the offender is not in custody are referred to as “green” cases. The pilot is running in three police force areas. As part of the pilot the definition of a red case has been clarified and has been specifically drafted to encompass high risk cases where there are concerns about the vulnerability of the victims.
The definition of a red case therefore includes cases where the police intend to impose conditional bail, domestic abuse cases, stalking and harassment cases as well as those where the intention is to keep the suspect in custody post charge. Under the new charging model, the CPS is required to consider the evidence and make a decision on a red case in 3 hours. In green cases, the suspect is not in custody and often investigations are still underway. CPS staff are required to examine all cases very carefully for example, making sure that issues concerning disclosure have been handled appropriately.
The DPP explained that the CPS are actually slowing down the charging decisions, particularly on rape/serious sexual offences, saying that the CPS are prepared to charge only once gaps are filled in the investigation file. He was aware that this caution was interpreted by some as a reluctance to make a charging decision, but in reality, it was CPS staff identifying gaps in information and seeking additional information and making sure that from the outset, disclosure processes were being properly adhered to. The overriding objective was to “get it right”.
The VC acknowledged that it was absolutely right that CPS made sure that they were getting it right. However, the additional delays were having a detrimental impact on victims. She sensed that they were “being lost” in the middle of this protracted process. This was being compounded by police being reluctant to put some suspects on bail; this was undermining victims’ confidence that they would be adequately protected and in turn, was making them reluctant to come forward.
Victims in the criminal justice system
The VC felt that as prosecutors had little contact with victims, they did not always appreciate their concerns. Often, the police would blame the CPS for delays. CPS barristers needed to have better communications with victims. The VC is keen to see more humanity on offer from the criminal justice system. The VC also highlighted than in other jurisdictions, victims had the right to be represented in trials. This changed the dynamics of the courtroom.
The DPP said he was committed to delivering a more transparent service for victims. He also considered that the new measures for ensuring disclosure was being properly managed would make the system better for victims. The DPP spoke of the rollout of National Disclosure Improvement Plan (NDIP), and the setting out the reasonable lines of inquiry. He also emphasised that education was key in this conversation, from stating how the judiciary are still learning about the relevancy of technical data, to the public knowing the role of the CPS vs that of the Police. The DPP offered to hear from the VC her thoughts on how this communication could be bettered.
SARCs and forensic evidence
The VC wrote to the DPP prior to the meeting on the issue of standards of forensic investigations in Sexual Assault Referral Centres (SARCs). The letter was on the back of an investigation on the part of journalists working for the BBC.
The journalist referred to material obtained from the CPS under FOI, namely a review conducted by the CPS in 2009 into forensic standards in SARCs and which made recommendations for improvement. In his written response, the DPP had agreed about the importance of consistency and high standards, but stated that this is now the responsibility of the DHSC and Home Office.
The VC was interested to know whether records are kept on how many cases are not progressed because of substandard forensic evidence.
The DPP explained that the CPS did have concerns ten years ago that forensic standards in some SARCs in the West Midlands were not as good as they should be. The CPS took the initiative to look into the matter, because at that stage, there was no impediment to their being able to do so. However, in 2012, Forensic Science was returned to the Home Office. This means that the CPS is no longer able to intervene.
He stated that the CPS review did lead to changes being made. However, he was not able to comment on whether problems still existed. The Home Office needed to answer any questions on whether good practice was holding out.
The VC indicated she would be taking the matter up with the Home Office.
Section 41 Cases – Cross-examination on Previous Sexual History
The VC raised the issue of the handling of “Section 41 cases” – victims of sexual assault where the defence makes an application to cross-examine them on their previous sexual history. Concerns have been raised about how well this process was being managed by the courts and whether judges and prosecution were pushing back on unreasonable applications.
The DPP stated that the evidence compiled by the CPS on this sensitive issue contradicted claims that it was working badly. It suggested that judges were deciding on such applications with great care. He felt that perhaps judges ought to do more to explain their rulings and the rationale behind them. However, we have to accept that there will be cases where such cross-examination will be necessary.
The CPS undertook an audit of a sample of over 300 rape cases to assess the frequency and outcome of S.41 applications. It found that S.41 applications were made in 13% of cases and granted in 8%. The CPS opposed 35% of S.41 applications and agreed in 30% of applications.
It was important that when a S.41 application was agreed, the reasons behind it were carefully explained to the victims.
The DPP accepted that S.41 requests were made in open court, but that judges were able to direct that the application be determined in closed session.
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