Too Many Rape Cases Being Prosecuted by Inexperienced Barristers, Says UK Watchdog

An undated image of a junior barrister holding a wig on entering a court in England. (Clara Molden/PA)

Too many inexperienced and junior prosecutors are being thrown in at the deep end and asked to take on rape and sexual assault cases, according to the man responsible for inspecting the Crown Prosecution Service (CPS) in England and Wales.

In an interview with The Times of London, Andrew Cayley, KC, chief inspector of the CPS, said there was a shortage of senior barristers and he said poor pay was the root cause.

Last year criminal barristers went on strike over pay and the government eventually agreed to increase legal aid fees for defence counsel by 15 percent. But the same offer did not apply to prosecutors.

Cayley said: “Once there is a solution to the pay, I think that problem will disappear. But the current situation is not satisfactory. The best position is for somebody of the appropriate experience to be prosecuting.”

Handling so-called Rape and Serious Sexual Offences (Rasso) is a specialist form of criminal law but Cayley said there was a shortage of Rasso prosecutors, “because individuals who might normally prosecute for the CPS are preferring to defend.”

Cayley said, “There should be equality of fees paid to prosecuting and defence counsel.”

He said the Director of Public Prosecutions, Max Hill, KC, agreed with him and was “pursuing arguments with the Treasury to achieve that.”

In its most recent Rasso strategy, the CPS said, “There are many factors which can make this a uniquely challenging offence to prosecute, and it is rightly managed by highly trained, specialist prosecutors.”

Kirsty Brimelow, KC, chair of the Criminal Bar Association, raised the issues of a shortage of prosecutors when she appeared before Parliament’s Home Affairs Committee on Wednesday.

She said one prosecutor had told her the complainant in three “stranger” rape cases had dropped out in the first month of 2023 after the trials were adjourned until the end of the year.

Rape Complainants Waiting Up to 5 Years for Trials

Brimelow told the committee: “Normally you would not have a complainant drop out in that type of case. The feedback we’re getting is this is just across the board, it’s across the system that witnesses, complainants will not wait for years. Some are waiting five years between allegation to trial.”

She said: “You have a complainant who’s saying ‘I can’t remember two, three years ago.' And the jury has to decide on that evidence. So the delays are actually undermining the whole prosecution case all the way through.”

The Criminal Bar Association said data from the Ministry of Justice from between July and September 2022 showed 44 crown court trials were adjourned on the day that they were scheduled to start because of a lack of prosecution counsel.

The government is committed to increasing the number of rape prosecutions and convictions, which have reached a historically low level.

The number of rape prosecutions in England and Wales has dropped by 70 percent since 2017.

Between Oct. 1, 2020 and Sept. 30, 2021 only 1.3 percent of rape allegations resulted in a suspect being charged.

Among the factors which sometimes lead to a prosecution being dropped or an alleged perpetrator not being charged is if the victim is inebriated.

But a new study, published this week by a team at Birmingham University, has found evidence women were able to accurately recall details of sexual assault if they were mildly intoxicated.

Professor Heather Flowe, from the university’s school of psychology, said: “We know that sexual assault frequently coincides with alcohol intoxication. This means that during trials, victims’ and witnesses’ accounts will often be contested, which is one of the reasons why so few cases lead to conviction for defendants and this needs to change.”

The research—published in the journal Frontiers in Psychology—was based on hypothetical scenarios, which women were later asked to recall after drinking up to the legal limit for driving.

The study found no evidence that women who participated in consensual sex while intoxicated might later forget they had consented or be unable to recall if they consented.

Researchers worked with 90 women who each took part in a hypothetical rape scenario under one of four conditions.

Half the group were given an alcoholic liquid and the other half were given a non-alcoholic liquid.

Then they were taken through hypothetical scenarios, which includes rapes.

Seven days after the experiment the women were asked to fill in a questionnaire about their recollections of the scenarios and the result revealed the women who drank alcohol were as accurate in their recollections as the sober group.

Laura Stevens, a Ph.D. student and coauthor of the paper, added: “This research challenges a key myth about victim’s memories regarding rape and sexual assault, which is often used to dismiss the victim’s account. We hope this work will lead to changes in the way courts and expert witnesses manage testimony from alleged victims of rape and sexual assault.”

PA Media contributed to this report.