CPS Victims’ Right to Review Scheme

In June 2013, the Crown Prosecution Service (CPS) launched the Victims’ Right to Review (VRR) Scheme. The VRR allows victims of crime to request a review of a police decision not to prosecute an individual under investigation.

The VRR allows a victim to seek a review against a decision to request a review of proceedings in circumstances where the police decide:

  1. Not to charge
  2. To discontinue (or withdraw in the Magistrates Court) all charges thereby ending all proceedings
  3. To offer no evidence in all proceedings, or
  4. To leave all charges in the proceedings to lie on file.

These are known as ‘qualifying decisions’.

Legal background

The VRR applies to decisions made by the police made on or after 5 June 2013 and was launched following a Court of Appeal case in 2011, namely R v Christopher Kallick [2011] EWCA Crim 1608. The Court of Appeal in that case considered the rights of a victim of crime to seek a review of a CPS decision not to prosecute and concluded that victims ought to have such a right and should not have to seek recourse to Judicial Review. Before the scheme was introduced, Judicial Review was the only means of reviewing a decision not to prosecute. In Killick it was commented that:

‘… it has for some time been established that there is a right by an interested person to seek judicial review of the decision not to prosecute… it would therefore be disproportionate for a public authority not to have a system of review without recourse to court proceedings.’

The VRR gives effect to the principles laid down in Killick and in Article 11 of the European Union Directive, which establishes minimum standards on the rights, support and protection of victims of crime. The scheme does not have statutory force but there is an expectation that the guidelines will be followed in each and every case, not least because such scheme limits exposure to Judicial Review. The VRR was initially subject to public consultation and the final guidelines were published in December 2013.

The VRR Scheme

Any victim, where a qualifying decision has been made, is entitled to seek a review of that decision under the scheme. An initial definition of what constituted a victim was amended following public consultation and a victim is now defined as:

‘A person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct.’

That definition includes close relatives of a person whose death was directly caused by criminal conduct, parents or guardians where the main victim is a child or youth under 18, police officers who are victims of crime, family spokespersons of victims with a disability or who are so badly injured they cannot communicate, and businesses, providing they give a named point of contact.

There are a number of factors that can mean that a case does not fall within the scope of the VRR. This includes, but is not limited to, cases where charges are brought in respect of some (but not all) allegations made and in cases where proceedings against one or more defendants are terminated but proceedings, relating to that victim, against other defendants continue.

The process

Victims will be notified of the prosecution decision not to bring proceedings or to bring proceedings to an end. They will be told the nature of the decision, whether the decision was evidential or on public interest grounds and how they can seek a review of that decision. A victim should normally submit their request for a review within five working days from the date of the communication of the qualifying decision. However, the VRR does allow for a request to be made up to three months after the communication of the qualifying decision. Any delay beyond that will only be allowed in exceptional circumstances.

On receipt of request for a review, the CPS will seek to resolve issues at the local CPS office by way of local resolution. A new prosecutor, who has not been previously involved in the case, will review matters. The prosecutor may decide that a different decision should have been taken and action will be taken to recommence proceedings where possible. If the original decision is upheld as being correct, then further explanation for the decision may be provided. The local resolution process is ordinarily completed within 10 working days of receipt of the request for a review.

If the victim remains dissatisfied with the decision, the matter will be subject to an independent review by the Appeals and Review Unit or the Chief Crown Prosecutor.

Comment

A number of healthcare practitioners now find that they face criminal proceedings for a wide range of allegations. What is clear for such practitioners is that in circumstances where the Crown makes a decision not to proceed with a matter, that decision must be very carefully communicated to the practitioner and any other organisations involved in the matter, such as a professional regulator. Communicating that decision before the five day window has expired for the victim to request a right to review, has a real danger of creating additional difficulties, as well as distress, for the practitioner involved.

Having said that, it is clear from the VRR that the five day window alone does not provide any guarantee to the practitioner that a review will not be sought at a later time. Whilst any review requested after three months will only be granted in exceptional circumstances, this is a matter that the practitioner concerned must bear in mind both in terms of their own understanding of where the matter rests and with regards to any other organisation involved.

The VRR might also be of particular concern for healthcare professionals involved in investigations where there is a clear injured party/victim as oppose to criminal cases that are deemed to be victim-less. Where healthcare professionals face sexual assault or where there has been death/serious injury to a patient, then one has to recognise the real risk that the victim or their relatives may seek to use this scheme. The scheme itself now gives greater scope to dissatisfied victims to seek a review of a decision with little consequences, including costs, compared to Judicial Review proceedings.

 


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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