Demands for rape victims' mobile phone data hampering investigations, police say as prosecutions plummet

Prosecutors closing a record number of cases before charging decisions amid row over disclosure of evidence

The CPS has denied changing its guidance to prosecutors (Santeri Viinamäki)

Rape prosecutions have plummeted by almost a quarter in a year as police admit vast quantities of mobile phone data are slowing down investigations and causing victims to drop out.

New figures released by the Crown Prosecution Service (CPS) show a 23 per cent year-on-year drop in the number of rape suspects prosecuted in 2017-18, despite the number of rapes recorded by police increasing by 31 per cent across England and Wales in the same period.

It comes after a scandal over failures to disclose crucial evidence, including messages and mobile phone pictures, which caused a series of rape trials to collapse.

Lawyers are concerned that the ensuing outrage caused prosecutors to “scurry too far in the opposite direction” and demand phone records and details of victims’ histories and personal lives before proceeding with cases.

Under half of the cases referred to prosecutors by police (47 per cent) were taken forward in the year, down from 55 per cent the year before, and a record number of referrals were dismissed ahead of a formal charging decision.

More than a fifth of rape referrals were “administratively finalised” by the CPS, up from 12 per cent the year before, meaning they were closed without action against the suspects.

The move is taken when police ask for advice but do not submit a full file for a charging decision, or when prosecutors request more information or evidence but officers do not supply it by their deadline.

Metropolitan Police assistant commissioner Martin Hewitt, the National Police Chiefs’ Council lead for rape, said the “increasing amount of digital material on a variety of devices that needs to be analysed” was having an impact.

“This includes obtaining material held by third parties [such as US-based social media companies] and the subsequent disclosure of what is considered relevant material,” he added. “This can take many months and in some cases impact on the participation of complainants.

“We continue to work closely with the CPS to identity and address the factors behind the drop in referrals.”

It now takes an average of 78 days to charge a suspected rapist after the victim reports, up from 63 in 2016-17, and then another 11 months for the case to conclude.

Dame Vera Baird QC, the Association of Police and Crime Commissioners’ leader for victims, said the statistics showed the CPS was “refusing to charge without more information” that could allow rape claims to be undermined in court.

“The CPS often requires access to tracts of intimate personal and confidential material about complainants and won’t charge unless it is supplied, even if the police are satisfied that it contains nothing relevant to defence or prosecution,” she added.

“There is no excuse for the CPS to arbitrarily decide not to pursue crimes which may have seriously injured people in order to get their conviction figures up … these figures are another wakeup call that we need to do more to protect the rights of victims of sexual offences through the judicial process.”

The CPS put the increase in “administratively finalised” cases down to an increase in investigative advice given to police before they submit a full file for a formal charging decision.

A spokesperson said: “Rape is one of the most complex crimes the CPS deals with and prosecutors are given ongoing training to support decision making in challenging cases.

“As cases become more complex, we are increasingly working with the police at an earlier stage providing them with early investigative advice, helping to build strong cases.

“Our priority is to continue to work with the police, to bring evidentially strong cases and respond to challenges such as the substantial increase in digital evidence that is now a common feature of these cases.”

Sarah Champion, the Labour MP for Rotherham and co-chair of the All-Party Parliamentary Group on Sexual Violence, said the figures suggested stretched police forces were facing “resourcing problems for collating evidence to meet charging criteria”.

“It is an absolute scandal that there’s been such a dramatic decrease in the number of prosecutions for rape cases,” she added. “The statistics clearly demonstrate the cuts have taken their toll and the government can no longer effectively prevent or prosecute violence against women and girls.”

The number of rape convictions fell by 12 per cent from 2,991 to 2,635, but the conviction rate rose slightly from 57.6 per cent to 58.3 per cent because of the smaller number of prosecutions.

The statistics were published days after the CPS denied allegations that it was taking “weak rape cases out of the system” to improve conviction rates.

A lawyer specialising in sexual offence cases told The Independent that the CPS had been pushing rape prosecutors to improve conviction rates.

Cris McCurley, a family law partner at Ben Hoare Bell, said: “Prosecutors were being told only to take on the nailed-on cases where you know there will be a conviction, because ‘we need to make the rate better’.”

She reported a shift in the amount of rape claimants’ phone data being requested by the CPS, and demands for “Stafford statements” giving permission for their personal records to be accessed.

MPs and campaigners have raised concerns that the practice causes irrelevant material to be heard in court – including a case where the defence cited the fact a woman forged her mother’s signature at school as evidence she could lie – and frightens claimants.

“All of this is combining to make a real toxic soup where women are scared to report because they’ve seen so many young men getting off,” Ms McCurley added.

“I think that rape cases are such a hot potato with the CPS now because of the collapsed trials and the reviews that have been undertaken.

“My worry is that everyone is scurrying so far in the wrong direction to disclose everything it’s made prosecutions virtually impossible because there’s not the manpower to get the evidence they want.

“We don’t know what makes the CPS decide to close a case administratively because it’s never been made public.”

Sarah Green, co-director of the End Violence Against Women Coalition, said the reasons behind the “collapse in rape justice” must be investigated.

“We need to remember that behind these figures lie real lives, and decisions to seek justice for one of the most serious crimes on the book, one which does enormous harm to individuals and those around them,” she added.

“We now need the justice secretary and the attorney general to commission an independent review of exactly what changed in CPS policy and practice over the last 18 months, and how we can improve outcomes for victims of rape.”

The CPS said there had been no change in policy on how prosecutors make charging decisions, but that they are being trained to deal with the complexities of rape and serious sexual offences.

The authority applies the same test of “sufficient evidence to provide a realistic prospect of conviction” to all cases, but the benchmark has provoked controversy in rape cases, which may hinge on conflicting accounts given by victims and attackers.

Alison Saunders, the outgoing director of public prosecutions, said the CPS and the police have undertaken extensive work to address challenges.

“Our priority is to continue to work with the police, to bring strong cases and respond to challenges such as the substantial increase in digital evidence that is now a common feature of these cases. As ever, prosecutors must make their decisions after testing whether the evidence provides a realistic prospect of conviction, and that it is in the public interest.”