The Guardian view on falling rape prosecutions: women’s rights are regressing

https://www.theguardian.com/commentisfree/2020/jul/30/the-guardian-view-on-falling-prosecutions-womens-rights-are-regressing

Editorial

Progress is being rolled back around the world. Right wing governments are not the only ones to blame.

Thu 30 Jul 2020 18.56 BSTLast modified on Fri 31 Jul 2020 04.37 BST

March against rape and sexual violence in central London in 2011
 ‘The state of rape prosecutions in England and Wales is now an outrage and a national shame.’ Photograph: Janine Wiedel Photolibrary/Alamy

We are going backwards. The number of reported rapes that result in convictions has long been alarmingly low. But the state of rape prosecutions in England and Wales is now an outrage and a national shame. The number of people prosecuted and convicted is at its lowest on record, while reported cases have risen sharply. Prosecutions more than halved from 5,190 in 2016-17 to only 2,102 in 2019-20. Meanwhile, the police recorded 55,130 rapes, up from 41,616 three years earlier.

Campaigners and the victims’ commissioner, Vera Baird, say this effectively amounts to decriminalisation. The Crown Prosecution Service notes that the police are referring fewer cases. But they have made clear their concerns that the CPS has moved to a more risk-averse approach. Though the service insists it has not changed tack, the drop in prosecutions coincided with advice from senior CPS figures to specialist rape prosecutors to “put a touch on the tiller” and take a proportion of “weak cases out of the system”, amid criticism of the low conviction rate. That rate has indeed now risen. But the total number of convictions dropped, from 2,991 to 1,439. More rapists are free in the community.Advertisement

While the CPS blueprint for improvements has some sensible recommendations, such as training specialist prosecutors to understand tactics employed by offenders and victim behaviour, they are insufficient, and the five-year timescale too leisurely. The government’s review into the handling of rape in the criminal justice system should adopt recommendations made by Northern Ireland’s Gillen review, including legal representation for complainants and providing the jury with guidance on rape myths in every trial.

Above all, we need leaders to show that women’s safety is a priority. Women’s ability to control and protect their own bodies is regressing across the globe. The attack on reproductive rights has gone hand in hand with damage to the most fundamental right to physical safety. It is not only long-established laws and policies but also relatively recent advances that face challenge. In part, this is a backlash against hard-won progress. It also reflects the role that misogyny has played in the rise of the populist right, though it is hardly unique to it. Poland is threatening to leave a treaty aimed at preventing violence against women – at a time when the pandemic has seen domestic violence soar worldwide – after President Andrzej Duda narrowly won re-election with a socially conservative and homophobic campaign. In the US, the justice department rewrote its definition of domestic violence last year, producing much more restrictive terms that disregard elements such as psychological abuse.

But rightwing governments are not the only culprits. In 2017, France passed a landmark street harassment law, and Emmanuel Macron urged other countries to make women’s rights a “great global cause”. Yet the president’s new justice minister, Éric Dupond-Moretti, is an outspoken opponent of the street harassment law and the #MeToo movement, and Mr Macron has appointed a man accused of rape as interior minister. An appeals court in Paris has told prosecutors to reopen their probe into Gérald Darmanin, who denies any wrongdoing; a judge had dismissed the case against him after a preliminary investigation was dropped.

Complacency and banal political or bureaucratic imperatives can damage women’s lives just as ideologically driven campaigns can. This is a particularly dangerous period, where the impact of the pandemic absorbs attention that might be paid to other issues, and the economic crisis makes people more vulnerable to abuse.

Yet thousands have marched in Warsaw and other Polish cities, outraged by their government’s plan to withdraw from the treaty. Protesters took to the streets in France over Mr Macron’s appointments. And this month the CPS and police were forced to drop the “digital strip search” policy that had made women in England and Wales divulge all their mobile phone data, following sustained campaigning and a legal challenge from two complainants. It is enraging to be forced to refight the same old battles, yet progress can and is being made. Women have every right to despair, but are refusing to do so. There is too much work to be done.

Secret policy change by CPS cut number of rape trials, high court told

Application on behalf of women’s group follows concern over fall in number of charges

Owen Bowcott and Caelainn Barr  The Guardian  Tue 17 Mar 2020

legal challenge over alleged changes to Crown Prosecution Service policy on bringing charges in rape cases has been dismissed by the high court.

The judges, Dame Victoria Sharp, president of the Queen’s Bench Division, and Lord Justice Singh, denied permission for the case to proceed to a full hearing on Tuesday.

The challenge by a coalition of victims’ organisation sought to prove that the CPS had raised the bar for charging suspects in rape cases.

The high court heard arguments that there had been a “precipitous drop” in the number of rape cases brought to trial due to a secret and unlawful change in policy adopted by the CPS.

The CPS adopted an internal conviction rate target of 60% of cases charged and became increasingly risk averse although it consulted with no one outside the organisation about the new approach, Phillippa Kaufmann QC told judges.

Her application on behalf of the End Violence Against Women Coalition follows concern over steep falls in rape charges and convictions in recent years at a time when an increasing number of women have been making rape complaints to police.

“This change [in policy] was brought about in secrecy and no one was told even afterwards,” Kaufmann told the court.

The changes were introduced from late 2016 after an internal review by the CPS’s director of legal services, Gregor McGill, it was alleged.

It resulted in refresher training of prosecutors that in effect abandoned the established policy of a what is known as a “merits-based approach” to assessing whether to charge suspects in rape cases, Kaufmann said.

“The easiest way to [raise the conviction rate],” she added, “is to whip out those cases that are a bit weaker … No one knew about it until it was leaked by an individual inside the CPS.”

The consequence, Kaufmann said, was that some prosecutors reverted what had been known as the bookmakers’ approach – guessing the probability of a jury convicting on the evidence and becoming reluctant to press ahead with more difficult rape cases.

But the CPS, which successfully, resisted the challenge, argued that courts should not become “an arbiter of prosecutorial policy”.

In written submissions, lawyer for the director of public prosecutions (DPP), Max Hill QC, said it was factually wrong to allege that prosecutors have now adopted a “bookmaker’s test” approach.

The CPS maintained that the courts should dismiss the claim at this preliminary stage and not proceed to a full judicial review of the arguments.

“There has not been a change in policy,” Tom Little QC, for the DPP, told the court. “The fall on conviction rates is due to a far wider range of factors involving the police that are now the subject of a government review.”

Rape victims who donated to the legal challenge, because they felt failed by the CPS, are set to see their donations go towards the institution’s legal costs.

The CPS is pursuing legal costs against the women’s rights’ charity the End Violence Against Women Coalition, and asked for a request to cap legal costs to be denied. The CPS were awarded £35,000 – £41, 000 in legal costs by judges ruling on the request for a judicial review into the claims.

The coalition’s director, Sarah Green, said: “We have no regrets about bringing this case. It was the right thing to do, and it was entirely necessary to challenge our justice system institutions when they are failing to keep women safe and deliver access to justice.

“We have been approached by so many women who have been let down by the CPS as we prepared this case. We know there are really serious problems. But instead of working with us, the CPS chose to fight us.

“It is a long way from the kind of leadership we need in our public institutions … The CPS is arguably failing to keep with the times on expectations for justice after sexual violence. The situation as it is cannot hold, it amounts to the effective decriminalisation of rape.”

The charity received hundreds of donations, many for £10 and £20, via a crowd justice campaign ahead of the hearing. Many messages left with the donations were from women who said they had been raped but denied justice. One donor wrote: “Having been through the system myself and being failed on every level I so wish you every success.” Under the anonymous donation of £10, someone simply wrote: “I never got justice.”

The legal challenge also received £10,000 from the family of Jill Saward, the Ealing rape victim who became a leading figure in the fight against sexual violence.

Harriet Wistrich, director of the Centre for Women’s Justice, who supported the claim, said: “We are deeply, deeply disappointed that [the judges] didn’t see there was a basis on which the case arguable.

“We feel they were just not prepared to grapple with all the detail and ultimately they saw it as a factual dispute. The court was not prepared to get involved.”

Wistrich said they were considering appealing against the ruling at the court of appeal. “We don’t see this as a loss because we think we won in the court of public opinion.”

On the heavy costs of £41,000 imposed on the claimants, she added: “ It’s astounding that the CPS have pushed for as much in costs against a small women’s charity.”