The cost of prosecuting weak sexual offence allegations for policy reasons

In DPP v The Crown Court at Inner London [2026] EWHC 1633 (Admin) an application for judicial review was brought by the Director of Public Prosecutions (DPP) seeking to quash a wasted costs order made in favour of a defendant following his acquittal in a prosecution for rape.

At the trial (after the close of the prosecution’s case) an application was made by the Defendant’s barrister that there was ‘no case to answer’ on the basis that the prosecution’s case was so weak that a jury could not be properly sure of any guilt. The trial Judge accepted that argument and stopped the case proceeding to the jury and the defendant was acquitted.

Subsequent to the acquittal an application for ‘wasted costs’ was made and was successful on the ground that the decision to prosecute the defendant was an improper act as the case was so weak that it should have been apparent prior to charge to any competent prosecutor that there was no realistic prospect of conviction.

The trial judge agreed and made a costs order (to be paid by the Crown Prosecution Service) in the sum of £97,000 to cover the costs of some of the legal fees incurred by the defendant.

An application for a wasted costs order is made under section 19(1) of the Prosecution of Offences Act 1985 which allows a Court (Magistrates, Crown or Court of Appeal) to make an order ‘… in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs’.

Where a privately-paying defendant has been acquitted, an application under this section is the only meaningful recourse for reimbursement of legal fees. A defendant who has been acquitted may be entitled to seek an order for the recovery of some of their costs from ‘central funds’, but only if they were refused legal aid and then any recovery will be capped at legal aid rates (and thus will normally be a fraction of their actual costs). The mere fact of an acquittal will only very rarely mean an order for wasted costs will be made. Successful applications for wasted costs are rare in criminal cases as the test sets a high benchmark of an unnecessary or improper act or omission.

In this case the alleged improper act was the decision to charge the defendant in the first place given that the account provided by the complainant in her video-recorded evidence did not state clearly whether sexual intercourse took place without consent. It was the complainant’s case that she had begun to have consensual sexual intercourse with her partner and then begun to fall asleep. However, she could not determinedly state when she fell asleep and therefore whether sexual intercourse took place whilst she was asleep and thus without her consent.

The trial Judge’s ruling when granting the wasted costs order was scathing of the prosecution’s decision to charge characterising it as having ‘all the hallmarks of wishful thinking being substituted for rigorous objective analysis. Bluntly, the inherent weakness of this case was there to be seen for anyone who cared to look’.

The DPP sought to judicially review the wasted costs order on the basis that the decision was wrong in law and irrational. The High Court determined that it was not and the judicial review application was dismissed.

Operation Soteria

The judgment needs to be considered against the backdrop of Operation Soteria.

Operation Soteria was conceived following, in the main, criticisms of the Police handling of the investigations of the crimes committed by John Worbouys – the ‘black cab rapist’. Its aim was to seek to redress failings in the way that rape and sexual offences were investigated with the intention of increasing the number of charges and convictions. Guidance was published which required a shift in focus from the complainant’s credibility on to the suspect’s behaviour, history and patterns of offending. It was piloted in 2021 and then rolled out across all forces in 2023.

Recent statistics concerning the impact of Operation Soteria upon charging decisions show a huge increase in the number of cases being both referred to the Crown Prosecution Service (CPS) for a charging decision and actual charges.

Figures published in April 2026 by the National Police Chief’s Council show the following increases post-Operation Soteria:

A 214.9% increase of referrals made by the Police to the CPS for a charging decision
A 303.9% increase in charges for adult rape offences

No figures were provided in that update for the impact upon conviction rates post-Operation Soteria which are not readily available without a lot of interpretation. However, it is clear that the increase in the number of suspects being charged has not had an impact on conviction rates.

Since January 2020 the CPS have published data tables containing summaries of statistics covering all aspects of a criminal investigation. They are published each quarter (starting in April) and detail the number of allegations made through to the conviction rate. An analysis of the CPS’s quarterly data summaries details that the conviction rates have dropped since the roll-out nationwide of Operation Soteria.

In Q4 2021-2022 (January to March 2022) the conviction rate for completed prosecutions for rape was 68.3%. However, by Q4 2025-2026 (January to March 2026) the figure had fallen to 51.7%. These are not isolated examples, a comparison of all the quarterly figures from 2021-2022 exhibit the same trend. The quarterly figures for the period 2020-2021 do not publish conviction rates for rape offences.

These figures clearly demonstrate that Operation Soteria’s policy goal of increasing the charging rate of sexual offences is being achieved. This does not however seem to be having an impact upon conviction rates. DPP v The Crown Court at Inner London demonstrates that there may be an undesirable impact on the way in which prosecutors are applying the evidential test to charging decisions.

The guidance in Operation Soteria requires the police to concentrate on the suspect and not on the victim. This discourages a holistic and dispassionate analysis of the evidence as in the norm with other criminal offences. For instance, it is not uncommon for rape cases to be prosecuted where text messages between the defendant and the complainant have not been considered prior to a charging decision. It cannot be right that the subject matter of a criminal allegation should affect the proper application of prosecutorial decision-making.

The Courts and Tribunals Bill (currently at committee stage) proposes that the application of Operation Soteria’s principles be extended to the court/trial process itself. The Bill, advanced under the former Starmer/Lammy administration, is presently at the support stage and also contains the controversial proposals in relation to jury trials. It is not yet clear whether the new administration fully support all the proposals behind this Bill.

The criminal justice system is already overcapacity; simply increasing the number of sexual offence prosecutions is only going to exacerbate the problem. Moreover, weak prosecutions cause unnecessary distress, cost and inconvenience to complainants, defendants and witnesses. It is to be hoped that the decision in DPP v The Crown Court at Inner London may serve to focus the minds on likely outcomes regardless of subject matter.