Challenging the decision not to prosecute – new rights for victims
16th August 2012
In the latest edition of Criminal Law Review, the Director of Public Prosecutions, Keir Starmer, wrote under the heading “Finality in Criminal Justice: when should the CPS reopen a case?” to announce that victims of crime will now have a right to a review of a CPS decision not to prosecute. The announcement follows last year’s Court of Appeal judgment in the case of Killick, where it was held that “as a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek a review of such a decision”.
Though no guidance is available as yet, it appears that victims will be entitled to a review in every instance where the CPS decide not to charge, without the requirement for any special circumstances to exist. Thus, victims need no longer meet the high standards required for a decision to be judicially reviewed; a review is theirs automatically. Victims’ groups will very much welcome this development, which gives victims an appeal process and puts them on a better footing within the criminal justice system than they have previously been afforded.
However, the changes pose a risk to accused persons, who will no longer be able to take such comfort in a CPS decision not to prosecute, and who may have to endure a review of that decision before they can be certain that they will not face charges. In order for the CPS to reverse one of its decisions, it must find that the decision was “wrong”. This is the same standard as is currently applied; the difference is that reviews will likely be much more common than they have been to date. However, reversals of decisions not to prosecute are likely to remain rare. Accused persons in this situation should consult legal advisers who will be able to advise them how to deal with the review process.
One important consideration is how victims and the accused will be affected by the way in which the review process is conducted. Victims will want speedy resolutions and the accused must not be kept in suspense. It is important that the CPS gives proper consideration to the resourcing of such reviews if the process is to be fair to all involved.
Comments
On February 20th 2013 Charlotte Wright replied:
Thank you for your comment. Before a person can be prosecuted for a crime, two “tests” must be met: there must be sufficient evidence to prosecute a person for the offence, and it must be in the public interest to prosecute them. I do not know exactly why the police did not consider they could use your witness, but it appears that in the circumstances they do not consider there is sufficient evidence to prosecute. Should you wish for any assistance in dealing with this it may be worth contacting a victim support group.
On February 17th 2013 nicola smith replied:
I was assaulted and kicked in the face, chest, arms and back. Only one person stepped up as a witness and gave a statement to say what had happened to me. The main offender of the two women that assaulted me had family members and friends (six of which made statements). No charges as apparently my witness is not classed as independent. Its disgusting I had five weeks off work, around five hours on a spine-board and nothing done about it. I feel physically sick at times when I am out of the house.
On January 8th 2013 Charlotte Wright replied:
At the time of writing the above blog, no indication had been given by the DPP as to when the guidance would be revised to incorporate the suggested amendments.
New CPS guidance on reconsidering a prosecution decision was in fact published on 31 October 2012 but does not make any broad brush amendments in line with the above. It does however increase the number of specific examples in which reconsideration may be appropriate. These are where proceedings are withdrawn because the police have failed to produce a file to the Magistrates’ Court in time for the first hearing, and where the CPS decide to prosecute after the police have initially decided to take no further action (but later referred the case back to the CPS).
It would appear, however, that outside these distinct circumstances, obtaining a review of a case would still be difficult.
On December 27th 2012 Grace woollett replied:
Very interesting- when will these reviews come into play as having just contacted the cps about rethinking a decision not to prosecute was told that there would have to new evidence produced on order to consider it.
Leave a comment
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the ‘Quick enquiry form’ at the bottom of this page.