Investigation and prosecution of rape

Exceptionally low volumes of rape charges and prosecutions are unacceptable. Adult victims and survivors of rape are being failed by our criminal justice system. Rape is undoubtedly a complex, difficult and traumatic crime to investigate and prosecute successfully. However, that complexity does not fully explain the unacceptably low volumes of charging and prosecution, or the long delays faced by victims and survivors and by suspects and defendants. Any action to address those situations must not undermine the accused’s right to a fair trial.

It is right that the Government is focusing on reversing the falling volumes of prosecutions and restoring people’s confidence in reporting, and we welcome the priority that has been placed on this pressing undertaking through the End-to-End Rape Review.

Whilst returning the volume of rape cases being dealt with to 2016 levels, as the Rape Review aims for, would be a step in the right direction, it should not be considered a success in and of itself, given that even in 2016, criminal justice outcomes for rape were viewed as poor. It is concerning that confidence in the system’s ability to even reach 2016 levels by the end of 2024 at the latest is low. Greater progress must be made at speed to ensure that more cases are successfully prosecuted and so more perpetrators brought to justice.

We are encouraged by the commitment to measuring progress through the performance scorecards and progress updates. However, it is unclear how the Government will hold operationally independent partners to account for their role in increasing the volume of rape prosecutions, even though the Government has said that, if outcomes don’t improve, it may look at reform of the way independent operational partners are held to account for delivery of operational improvements.

We recommend that if the progress updates demonstrate that the review is not having its intended impact, the Government react quickly and effectively, putting in place alternative actions. In its next progress update, the Government must set out exactly how operational partners will be held to account if there continues to be no significant rise in rape prosecution volumes. We agree with HMICFRS and HMCPSI that the National Criminal Justice Board should review the existing statutory governance arrangements for rape and instigate swift reform. We also recommend that the lead Minister for the Rape Review write to the Committee every six months, so that progress updates can be adequately interrogated.

As the Government’s data note on the performance scorecards makes clear, it is not possible to accurately track individual offences or defendants across the criminal justice system for the purposes of statistical reporting. We welcome the fact that work to link this data better is ongoing and a ‘high priority’. However, we believe transparency is Investigation and prosecution of rape 77 critical to this and we recommend that, once the scoping stages are completed, the Home Secretary and Justice Secretary write to us with further detail on this piece of work, including aims, methodology and timescales.

It is important that the justice system captures data about victims that can give insight into whether their protected characteristics might affect their criminal justice journeys. We recommend that the Home Office and the Ministry of Justice work with the police and the Crown Prosecution Service to ensure as an initial priority that the ethnicity data of rape victims and survivors is collected and published transparently, for example, through the performance scorecards.

The provision of specialist support to victims and survivors of rape is vital, given the devastating impact of sexual violence and the difficulties complainants face during the investigation and prosecution process. The Government’s research into what rape victims need from support services is to be welcomed. This should take into account the different needs of different victims and survivors, for example, those who are deaf and disabled, and Black and minority ethnic victims and survivors, who can be supported more effectively by dedicated by and for services. We look forward to the outcome of the Victims’ Bill consultation and introduction of the legislation in the next parliamentary Session. We urge the Government to ensure that the commissioning principles and funding models set out are truly long-term and sustainable.

It is essential that the Government and other commissioning bodies have an understanding of the level of need and the current availability of specialist sexual violence and abuse services, including counselling and therapy and the support offered by Independent Sexual Violence Advisors (ISVAs). As HMICFRS and HMCPSI have done, we recommend that the Government undertake a comprehensive mapping and monitoring exercise, covering the provision of specialist sexual violence and abuse services in England and Wales, similar to that which the Domestic Abuse Commissioner is focusing on for specialist domestic abuse services. This would need to be truly cross-Government, including the Department for Health and Social Care, and take account of integrated care systems, Police and Crime Commissioners and other sources of funding for these vital support services.

We agree with HMICFRS and HMCPSI that the Government should consider the merits of either establishing a dedicated commissioner for sexual violence and abuse or expanding the existing responsibilities and powers of one of our existing commissioners. The relevant commissioner could then oversee the provision of specialist support services for victims and survivors of sexual violence and abuse, as well as any mapping exercise. Importantly, they could also act to hold the Government and its operational partners to account in improving the response to rape and serious sexual assault. Any change must be backed by adequate resourcing and any future commissioner must have appropriate powers as well. The Domestic Abuse Commissioner’s powers, as laid out in the Domestic Abuse Act 2021, could be a good model, with the Act requiring public sector authorities to cooperate with her and to respond to relevant recommendations she puts forward.

It is clear that the way the police respond to reports of rape is vital when it comes to increasing the volumes of rape charges and prosecutions. We welcome the focus on improving these volumes, for example through the Police-CPS Joint National RASSO (Rape and Serious Sexual Offences) Action Plan and Operation Soteria. We agree that the project has enormous potential. However, the Government cannot expect some police force areas to participate in Operation Soteria and to implement learning with dedicated funding, and others to roll out the approach without any extra funding or input from academics into their own force-specific challenges in investigating rape.

In the next Rape Review Progress Update, the Government must provide an update on Operation Soteria, outlining the 14 police forces and corresponding CPS areas that will be taking part next, as well as the funding available for that expansion, and why that is sufficient. The Government must also provide assurances that subsequent stages of the roll-out will receive dedicated funding.

In light of the challenges deaf survivors of domestic abuse and sexual violence told us they had experienced when engaging with the police, we would also urge the Home Office to undertake work with police forces across England and Wales to understand what provisions are currently in place to enable police officers to support deaf victims of crime as effectively as possible, and to ensure adequate provisions are made available where they are not yet on offer. It is important that forces operate emergency and non- emergency SMS text or Video Relay Services (VRS), so deaf people can communicate with the police when needed, especially in emergencies, and that the police always engage British Sign Language or BSL interpreters when BSL is the first or preferred language of a deaf person being supported by the police, or Lipspeakers for those who lipread as their primary means of communication. The police should also have regard to the particular requirements of those who do not have English or BSL as their first language, but who may use other spoken or signed languages. The Home Office must update us on this piece of work within the next 12 months.

We are disappointed that, despite the difference that specialist police rape teams make, the Government has not done more to ensure such teams are in place.

The Government must strongly encourage police forces without specialist police rape teams to put such teams in place. Since the policing of violence against women and girls is to be added to the Strategic Policing Requirement, putting specialist police rape teams in place would be a powerful way to demonstrate the priority that should be given to tackling violence against women and girls. The Government should, for example, make clear in the next Rape Review Progress Update that it is the Government’s view that forces should have specialist rape teams set up where possible. The Government should work with the College of Policing and National Police Chiefs’ Council (NPCC) to understand better the obstacles forces face in putting these teams in place and to provide support to forces committed to forming specialist teams.

It is very concerning that the Home Office does not have the numbers of police officers who are RASSO-trained. The emphasis on the uplift programme in the Rape Investigation and prosecution of rape 79 Review Progress Update is also potentially misleading, when the Government does not know how many of those officers will actually receive the necessary training in order to work on such complex cases competently.

The Government must start collecting and publishing data on the number of police forces with specialist police rape teams in place, and the number of police officers with specialist rape and serious sexual offences (RASSO) training in each force (for example, the number trained on the Rape and Specialist Sexual Assault Investigation Development Programme (SSAIDP) and the number of Sexual Offences Liaison Officers (SOLOs)). This should be published in the next Progress Update, and in each subsequent update. Further, the police officer uplift programme should not be referred to in Rape Review Progress Updates unless the Government has data on the number of recruited police officers who will be or are developing a RASSO specialism. We would strongly encourage the Home Office to collect that data, working closely with the College of Policing and the NPCC, currently conducting a skills gap analysis of the number of specialist trained staff, relative to current demand, covering the number of SOLOs and those on the SSAIDP.

We welcome the Government’s ambition to ensure no victim of rape will be without a mobile phone for more than 24 hours by 2024, and the extra funding to support certain police forces to analyse digital evidence effectively. However, this commitment should be comprehensively backed by a costed plan to ensure that all police forces have the necessary equipment and skills to implement the policy by 2024.

Although we support the Government’s upcoming consultation with victims’ groups on enhancing support and legal advice for victims on disclosure decisions, we have concerns that the Government is not placing a high priority on the question of legal advice for victims, despite what appear to be clear benefits.

The Government should further pilot the Sexual Violence Complainants’ Advocate Scheme, first offered in Northumbria. This pilot should be extended to areas with differing demographic and geographic profiles. This would empower and support complainants to understand better and deal with requests to access third-party material or data from digital devices. We agree with the Criminal Bar Association that the role of any legal advisor would need to be defined in detail in a Code of Practice.

The Government should also consider widening any such pilot so that people would also be able to benefit from legal advice on sexual history applications.

If engagement with victims’ groups as promised by the Rape Review Progress Update demonstrate support and the need for independent legal advice, the Government must commit to offering legal advice to all victims of rape, subject to the success of the pilot.

The role of the CPS is instrumental when it comes to increasing the volume of rape prosecutions and bringing more perpetrators to justice if guilty, as well as improving victims’ experiences of the criminal justice system.

We have heard from victims and survivors that the CPS’s level and quality of communication could be more effective and sensitive. We welcome the fact that the CPS has designed new letters to engage better with victims at key moments. However, as part of the CPS’s work designing a new approach to victim engagement that should be more two-way, we would also recommend that the CPS consider speaking with complainants via a video link as more general practice, to give people the opportunity to ask questions about their individual case. This would be less impersonal. Any concerns prosecutors might have should be taken into account.

Given some victims and survivors’ negative experiences of the Victims’ Right to Review Scheme, we agree with Rape Crisis England and Wales that the Government require the police and the CPS to publish data covering how many cases are submitted for review, how many decisions are upheld and how many reconsidered, and the reasons for these review decisions. This data should be analysed by gender, case type, ethnicity and other factors, enabling the system to become more open. The Government should take this step as part of its work on the upcoming Victims’ Bill.

We were particularly concerned to hear that victims and survivors of rape may feel they need to—or are advised to—put off accessing mental health support as they fear that their counselling or therapy notes and records could be disclosed to the defence or undermine their case in some way. This is unacceptable given the traumatic impact of rape.

We recommend that the Government work with the Crown Prosecution Service so that it is possible for the organisation to publish its guidance on pre-trial therapy as soon as possible. We understand the Crown Prosecution Service has been waiting on the Attorney General’s annual review of disclosure, but it has now been more than 18 months since the consultation on the guidance was launched and it is an urgent issue.

We welcome the fact that the Law Commission’s project will be covering access to counselling and therapy notes and records. However, we are concerned that, as the Law Commission will not be reporting until summer 2023, victims and survivors could be left without the mental health support they need for longer than is acceptable. We recommend that the Government ask the Law Commission to publish separate recommendations on pre-trial therapy and the disclosure of counselling and therapy notes at an earlier stage in their project, preferably by the end of this year.

The pilot of the provision of legal advice to complainants—which we recommended at paragraph 125 above—should take account of support in relation to applications for counselling or therapy records.

The Government must ensure that counselling and therapy, including pre-trial therapy, can be accessed by all victims and survivors who need it. We welcome the Government’s funding for Independent Sexual Violence Advisors (ISVAs) but are mindful of Rape Crisis England and Wales’ warning that the demand is for long-term counselling and therapies, which is not receiving as much attention. The Government’s next Rape Review Progress Update must take account of the demand for counselling and therapy, including pre-trial therapy.

Any comprehensive mapping and monitoring exercise, covering the provision of specialist sexual violence and abuse services in England and Wales, that the Government undertakes (as we recommend) must take account of the need for and availability of counselling and therapy for victims and survivors of sexual violence.

The actions the CPS is taking to drive up the number of rape prosecutions are positive and to be welcomed. However, given the continued low volume of rape prosecutions, and the concerns we heard around the gap between policy and practice, we would suggest that the CPS publish the outcomes of its assessment of the organisation’s progress against the success measures set out in RASSO 2025 on a regular basis. The recent publication of the Rape Strategy update is a welcome step toward this end. We would further suggest that the CPS and the police publish progress against delivery of the Police-CPS Joint National RASSO Action Plan (JNAP) on an annual basis on both the CPS and NPCC websites as initially promised. We would also like to see a reviewed and updated version of the JNAP as soon as possible, following the publication of the End-to-End Rape Review and the findings of Phases One and Two of the joint thematic inspection of the police and the CPS’s response to rape. This should not be published any later than the Summer of 2022 as has now been promised. We believe acting on these suggestions will be important in building public confidence, if it can be demonstrated that actions taken have positively affected the volumes of rape prosecutions.

It is evident that even when people’s cases do make it to court, their experience of the trial can be very difficult. We welcome the national roll-out of section 28 of the Youth Justice and Criminal Evidence Act 1999 to intimidated witnesses (victims of adult sexual offences and modern slavery). This will make a significant difference to complainants’ experiences of the criminal justice system. However, we would urge the Government to consider the obstacles to a successful roll-out—for example, the availability of counsel—in consultation with the legal sector, including the judiciary, the Bar Council and the Criminal Bar Association, and the means of overcoming these obstacles. The outcome of this piece of work should be published with the next Rape Review Progress Update.

We recommend that the Government consult with the judiciary and wider legal sector on evidence given in private as a special measure. Any such consultation should examine its use, given HMICFRS and HMCPSI have found that it can be underused, and explore whether its use could be further widened, with a focus on the experience of rape complainants. The approach in Scotland and Northern Ireland—as well as the Republic of Ireland—should be considered as part of this work.

We welcome the £1 billion in the recent Spending Review to increase capacity across the court estate and support recovery from the impact of the pandemic. However, we remain concerned by the size of the backlog, particularly as rape and serious sexual offences are disproportionately affected.

We urge the Government to work with the judiciary to explore what more could be done to ensure fixtures for all rape and serious sexual offence trials are guaranteed. This would help address the severe delays many complainants and defendants are affected by.