Understanding the CPS charging test in rape cases – what it means for you

If you’ve been accused of rape or sexual assault, you’re likely feeling anxious and uncertain about what happens next. One of the most important questions is:

“How does the Crown Prosecution Service (CPS) decide whether to charge me?”

The answer lies in the Full Code Test, which applies to all criminal cases, including allegations of sexual offences. Understanding this test—and what you can do before a charging decision is made—can make a huge difference to your future.

What is the CPS charging test?

Before any prosecution can proceed, the CPS must be satisfied that two stages are met:

1. Evidential stage

The CPS asks:

Is there a realistic prospect of conviction?

This means an objective, impartial jury, properly directed and acting reasonably, would be more likely than not to convict based on the evidence available. It’s not about certainty, but it’s also not about mere possibility.

Prosecutors consider:

• Is the evidence admissible, reliable, and credible?
• Are there inconsistencies that might undermine the case?
• What defence arguments are likely to be raised?

2. Public interest stage

Only considered if the evidential stage is satisfied.

Does the test differ for rape cases?

Legally, the test is the same for all offences. However, rape cases often involve unique challenges:

• Evidence may rely heavily on one person’s word against another.
• Prosecutors must avoid myths and stereotypes about victim behaviour.
• Trauma can affect memory and disclosure patterns, which must be assessed fairly.

Recent case law confirms this approach:

• “The evidential stage requires the prosecutor to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction… more likely than not to convict.” – R (Rooks) v CPS [2024]
• “Inconsistencies do not automatically defeat credibility, but significant inconsistencies may undermine the realistic prospect of conviction.” – R (EAD) v DPP [2025]

What can Jim Meyer do post-interview, before a charging decision?

This stage—after your police interview but before the CPS decides whether to charge—is critical. Many people think they just have to wait. That’s not true. Here’s what Jim can do for you:

• Proactive defence representation
  Jim can engage with the police and CPS to ensure your position is clearly understood and that any evidence supporting your innocence is highlighted.
• Submit written representations
  Before the CPS makes its decision, Jim can prepare detailed submissions explaining why the evidential stage of the Full Code Test is not met, referencing case law and CPS guidance.
• Gather and present defence evidence
  This might include digital evidence, witness statements, or expert reports that challenge the complainant’s account or support your version of events.
• Challenge disclosure issues
  Jim ensures that all relevant material—such as phone records, social media messages, or CCTV—is properly considered by investigators.

Acting early can significantly influence whether a case proceeds to charge.

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Why expert representation matters

Facing an allegation of rape or sexual assault is daunting. The CPS decision-making process is complex, and every detail matters. Having an experienced solicitor who understands the law, the guidance, and the nuances of these cases can make a critical difference.