The England and Wales Court of Appeal dismissed a judicial review lawsuit Sunday brought by the End Violence Against Women Coalition (EVAWC) over the Crown Prosecution Service’s (CPS) rape prosecutions policy.

The EVAWC brought the case against the Director of Public Prosecutions (DPP) in response to “a shocking and unprecedented collapse in the volume and percentage of rape allegations resulting in a prosecution between 2016 and 2020.” The EVAWC noted that out of 55,000 allegations reported to the police in 2018/2019, just 1,758 were pursued by the CPS.

The EVAWC challenged the CPS’ change of policy, which allegedly gave rise to a risk that prosecutors would apply a bookmaker’s approach—”a predictive approach based upon experience of juries” to determine whether the case is likely to succeed—in sexual violence cases. Prosecutors are instead required to apply the Code for Crown Prosecutors or merits-based approach. The EVAWC challenged this policy on five grounds including irrationality; that “it led to a risk of systemic illegality”; that “it was unlawful because the DPP should have consulted ‘stakeholders’ before making the decision” given that such stakeholders had a “legitimate expectation that they would be consulted”; that the decision contravened section 149 the Equality Act 2010“; and that the decision breached the DPP’s duty of transparency to publish her policies.

The DPP argued that the merits-based approach had always been applied and there was no policy change when it changed its guidelines for prosecutors to emphasize the Code for Crown Prosecutors approach, and delete references to a merits-based approach, given that they are not materially different.

The court found that the CPS’s decision fell short of meeting the high standard for the irrationality ground of judicial review to be made out; the risk of systematic illegality failed on the facts; the DPP had no duty to consult on the change when that it was not one of substance but rather a change of phrase; the Equality Act 2010 was complied with given that the DPP “had the regard to the relevant equality needs”; and that the DPP did not breach the duty of transparency given that this ground “is based on the principle that if a public authority has a policy which it applies in the exercise of its public functions, that policy must be published,” and the policy was published in the Code for Crown Prosecutors, a public document.

Max Hill QC, the current Director of Public Prosecutions, commented:

The Court of Appeal has today handed down its judgment following detailed consideration of how the CPS prosecutes rape. They have dismissed the case, confirming that the CPS was neither irrational nor unlawful in its approach to updating guidance for prosecutors, and that there was no change of approach in the way the CPS prosecutes rape cases. … the legal test that guides every charging decision has not changed. The principles of the merits-based approach are enshrined in the Code for Crown Prosecutors, which guides every charging decision. Independent inspectors have found no evidence of a risk-averse approach and have reported a clear improvement in the quality of our legal decision-making in rape cases.

However, not all parties were pleased with the dismissal of the judicial review application. Andrea Simon, Director of EVAWC, stated “[w]e are deeply disappointed at this outcome, however we have no regrets about holding institutions accountable for the effective [decriminalization] of rape.” Simon’s views are echoed by women’s rights activists.

“We consider it deeply troubling that the judgment explicitly approves the decision by the then DPP, Alison Saunders, to change the messaging to crown prosecutors on the back of four high profile acquittals and a falling conviction rate, when there was an acknowledged risk this would lead to an over cautious approach,” said Harriet Wistrich, Director of the Centre for Women’s Justice.

Hill said that he shares the EVAWC’s concerns about the number of rape prosecutions decreasing while the number of allegations increases. He noted that the “CPS is actively involved in the cross-Government review which has been working for almost two years to understand and address the reasons behind the trend” and that the findings of the review will be published later this year.