Shortcomings in the Victims Right to Review Scheme
The ruling in R v Killick prompted the introduction of the Victims Right to Review Scheme (‘VRRS’) which applies to all qualifying cases from 5 June 2013. This scheme gives the victims of crime the ability to request a review of certain decisions by the CPS. It gives effect not only to the principles established by the Court of Appeal in Killick but also the EU Directive on the Rights of Victims of Crime which establishes ‘the minimum standards on the rights, support and protection of victims of crime’.
Under the VRRS a victim can request a review of the following qualifying decisions by the CPS;
- A decision not to bring proceedings (pre-charge);
- Discontinue all charges involving the victim thereby ending all proceedings relating to them;
- Offers no evidence in all proceedings relating to a victim; or
- A request to the Court to leave all the charges in the proceedings to ‘lie on file’.
There are a number of decisions which do not amount to ‘qualifying decisions’. These are largely decisions to drop some but not all of the charges that concern a particular victim (see CPS guidelines).
Victims are defined as ‘a person who has made an allegation that they have suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct.’
Once a qualifying decision has been made and communicated to the victim, all the victim is required to do is notify the CPS of their decision to request a review. Ideally this should be done within 5 days of receipt of the decision but can be made up to three months after the decision. The longer the delay in requesting a review the more difficult it may be for the CPS to re-commence proceedings.
In most circumstances the request for a review will first be considered at local level i.e. the local CPS office or CPSD. This is referred to as ‘Local Resolution’.
Where on review it is considered a different decision should have been taken, the CPS can either re-commence proceedings or where it is not possible to do so, will provide an explanation and an apology.
Where on review it is considered that the original decision was correct, the CPS will either provide additional information / explanation to the victim (if it is felt this was not previously done) and notify the victim that if they are still unhappy they should contact the Appeals Unit; or where an appropriate explanation has already been given, the victims request will be sent directly to the Appeals and Review Unit for an independent review.
The independent review is carried out by the Appeals and Review Audit Unit if there is a decision ‘not to charge’, ‘discontinue’ or ‘withdraw’. In circumstances where there is a decision to ‘offer no evidence’ and where re-commencing proceedings is not possible, the review will be carried out by the Chief Crown Prosecutor/Head of Division or Deputy Chief Crown Prosecutor, Deputy Head of Division in the Area or Division where the decision was made.
The independent review will entail a reconsideration of the material that was provided to the original prosecutor. In order to overturn the decision the reviewer must be satisfied that;
- The decision was wrong applying the evidential or public interest stages of the Code for Crown Prosecutors; and
- That for the maintenance of public confidence, the decision must be reversed.
One of the shortcomings of the VRRS concerns decisions by the CPS to ‘offer no evidence’. Once the CPS offers no evidence at court following a plea by the defendant, they cannot re-commence proceedings even if it subsequently transpires that the decision was wrong.
This issue was examined by the Administrative Court in the case of R (on the application of Hayes) v Crown Prosecution Service [2018 All ER (d) 130 (feb). In that case, the CPS made a decision to offer no evidence having taken over conduct of a private prosecution from the victim. The victim notified them he wished to exercise his rights under the Victims Right to Review Guidance (‘VRRG’) but was told by the CPS that they would only conduct a review after they had offered no evidence and the prosecution had come to an end. The victim sought Judicial Review of that decision on a number of grounds all of which were rejected by the Court. The Administrative Court confirmed that the CPS could not review the decision once they had offered no evidence at which point they could not then re-commence proceedings (paras 46 and 61 of the judgement) and that this did not amount to an unlawful operation of the VRRG. Furthermore the Court considered that an apology would not leave the victim ‘entirely without satisfaction’ and that this restriction was necessary to balance the competing interests (paras 52, 53 and 61). It is not known whether this decision will be appealed but clearly this significantly limits the operation of the VRRG concerning decisions to offer no evidence. It also begs the question of whether there is any point in requesting a review of such decisions.
Lisa is a criminal litigation lawyer with experience of dealing with white collar crime and corporate fraud matters. She has acted for clients in relation to charges brought by Serious Fraud Office (SFO), the Financial Services Authority (now the Financial Conduct Authority), Her Majesty’s Revenue and Customs (HMRC) and also has experience dealing with foreign prosecuting bodies such as the Department of Justice in the US as well as having been admitted to the Athens Bar to deal with Investigating Authorities in Greece. She has particular experience in defending clients charged with bribery and corruption, serious fraud, money laundering, tax evasion and confiscation. She also has experience in dealing with civil tax fraud, insolvency and regulatory proceedings.