There’s no ‘right’ number for rape charges
There is a great danger in allowing unreliable and misunderstood statistics to drive justice policies
It is far too late to expect calm and reflection on the subject of rape prosecution policy. Conviction rates are too low in comparison to reported rapes, we hear; prosecutors are being given secret instructions to drop weak cases in order to improve the situation; the CPS is to blame; the police are at fault. Statistics are routinely cited in support of demands for the system to be “rebalanced” in favour of “rape victims”; suggestions are then made for ways to “increase the conviction rate”, up to and including the abolition of trial by jury.
Certainly, at first glance, the figures are striking. Between 2015 and 2018 the number of rapes reported to the police rose by 40 per cent from 29,385 to 41,186. In roughly the same period the numbers of referrals from the police to the CPS fell from 4,595 in 2016 to 2,889, while those actually convicted fell from 2,689 to 1,925.
Unfortunately, police figures are notoriously misleading. Different forces apply the reporting rules in subtly different ways, while the rules change over time. Apparent increases in offences may be the result of previous failures to report accurately. The Office for National Statistics warns (specifically in relation to sexual offences) that: “Given the different factors affecting the reporting and recording of these offences, the police figures do not provide a reliable measure of current trends.”
The latest, and more reliable, Crime Survey England and Wales recorded “no change in the proportion of adults who experienced sexual assaults in the year ending March 2019 compared with the previous year”. (Although it did record some increase since 2014.)
Moreover, yesterday’s report of the CPS Inspectorate into how the service is doing provides some welcome cool analysis.
The inspectors – who in the past have not held back from criticism of the CPS – found that despite being overstretched and under huge pressure, CPS lawyers generally made reasonable prosecution decisions. In only five of the 250 cases examined was the decision of the prosecutor considered unreasonable. These were divided between two decisions to charge on insufficient evidence, and three where incorrect decisions were made to drop cases; on further investigation one of those prematurely dropped was reinvestigated, reviewed and then dropped again.
There was a significant increase in cases being “administratively finalised” by the CPS. However, what that meant was asking police to carry out further investigations, generally something to be feared by the guilty and welcomed by the innocent. The main reason for reported rapes not being prosecuted was that the police often did not refer cases to the CPS at all.
There are very understandable reasons for that: the most important being that complainants withdraw from the process. There is seldom any point in referring a case without either a statement or an evidential interview. We should not bemoan the lack of a rape prosecution when there is no evidence with which to prosecute.
Of course, the reasons for complainants withdrawing are immensely varied. Some may simply change their minds. Others may be put off by insensitive policing, although most officers try very hard to behave sensitively towards rape complainants. Thanks in part to recent alarmist remarks by the Victims’ Commissioner, Dame Vera Baird, some complainants now fear a “digital strip search”, believing that the entire contents of their mobile phones will be made known to the man they have accused (something which is extremely unlikely to happen). Others may prefer quietly to drop complaints that were false in the first place.
There is great danger in allowing unreliable and misunderstood statistics to drive justice policies. Assertions that “men are getting away with rape” are literally correct because sometimes people do get away with crimes. That is a price we pay for a fair justice system. But there is no objectively “right” number of prosecutions or convictions, or for that matter acquittals. What matters is not the numbers of referrals or convictions, but that complaints of rape are dealt with fairly from the first report to the conclusion of the legal process.