This is the judgment of the court on an application for judicial review being heard at first instance in the Court of Appeal. The claimant is a campaigning organisation with deep concerns about the low and declining rate of prosecutions for rape and serious sexual offences when compared with the number of alleged offences reported to the police.
The fundamental complaint made by the claimant is that the defendant has changed the policy of the Crown Prosecution Service (“the CPS”) in relation to the prosecution of rape and other sexual offences since about late 2016. The claimant submits that there has been a change of policy from the merits-based approach to the bookmaker’s approach, which is unlawful. The first is an objective approach, whereas the second is a predictive approach based upon experience of juries. Importantly, the second would consider perceived prejudices of juries arising from rape myths as relevant to whether to prosecute. The claimant submitted that the change in policy created a risk that prosecutors would understand that they should apply the bookmaker’s approach.
Held: permission to appeal for judicial review is dismissed. The claimant’s grounds of challenge all, with the possible exception of transparency, rest upon a factual foundation which is fundamentally disputed by the DPP. The filed for the DPP should be preferred. The changes in language in the guidance did not change the effect of the approach. The full Code test remained. This court has reached the same conclusion as did the Divisional Court, in essence for the same reasons.
There is a widespread and legitimate interest in the underlying question which has animated these proceedings. A Government review led by the Ministry of Justice is underway looking at this issue with wide-ranging participation.
Phillippa Kauffman QC was involved in this case.