Lawyers must fix the problems with gagging orders before it is too late
Clients increasingly approach us for advice and assistance regarding decisions by the Crown Prosecution Service (CPS) not to prosecute. This includes matters where there is potentially more than one suspect. The decision in this case suggests that it may be more difficult for victims of crime going forward to use Victim’s Right to Review Scheme (VRR) where the CPS has taken a decision to prosecute some, but not all, potential suspects, as there is no unequivocal right to review.
The appellant’s estranged husband abducted her two children in 1998, leading to the appellant not seeing her children for 14 years. Her estranged husband was subsequently charged with child abduction and sentenced to 7 years imprisonment. The appellant believed that her sister-in-law encouraged and financed the abduction. However, she was not charged. In 2014 the appellant invoked the review process in respect of the CPS decision not charge.
The VRR scheme states that in circumstances where charges are brought against some, but not all, potential suspects, a right to review is not available to victims. However, the CPS agreed to review the decision on an exceptional basis outside of the scope of the VRR and in August 2015 an independent prosecutor confirmed that there was no reasonable prospect of conviction thereby upholding the initial prosecutor’s decision.
Following the review by the CPS Appeals and Review Unit, the CPS agreed to add a footnote to the VRR stating:
“There may be very exceptional circumstances in which cases that fall within the exception to paragraph 11 may nevertheless be considered for inclusion in the VRR scheme on the advice of the Appeals and Review Unit (“ARU”) manager or other senior manager”.
In 2016 the appellant applied for judicial review of the decision not to prosecute, which was dismissed.
The appellant’s grounds can be broadly stated as follows:
The appellant submitted that the decision of the Divisional Court had been flawed for the following three reasons:
Article 1 of the Directive states that its aim is:
“to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings”
The preamble of the Directive acknowledges in its Recitals a victim’s right to review any decision to not prosecute and any such review should be taken independently of the person/authority making the initial decision.
The specific rights of the victim sit within Article 11 of the Directive, which the appellant submitted conferred an unlimited right to victims to have a review of any decision not to prosecute. To clarify, the rights of victims under Article 11 are incorporated into law by virtue of paragraph 6 of the VRR, which outlines a two stage process: (1) local resolution whereby a prosecutor will review the initial prosecutor’s decision. If the victim is dissatisfied following the stage 1 review (2) at stage 2 the CPS Appeals and Review Unit conducts a further review. Outcomes of the second stage review are similar to the first, in that an explanation will be given to the victim if the initial decision is upheld. Alternatively, should the initial decision be overturned, an apology and explanation will be given in the absence of prosecution the individual, if this is not possible.
In her dissenting judgment, Lady Justice Rafferty concluded that the appellant’s submission that Article 11 of the Directive confers a unilateral right to review to victims of crime to have all decisions not to prosecute reviewed was incorrect and that the Divisional Court’s reasoning withstood scrutiny leading to a dismissal of the appellant’s appeal on the first ground.
Rafferty LJ noted that a useful starting point was the European Commission’s guidance document, DG Justice Guidance Document related to the transposition and implementation of Directive 2012/29/EU and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, which provides Member States with significant flexibility in their interpretation of Article 11 of the Directive. Notwithstanding, the flexibility afforded to Member States did not permit the appellant’s conclusion that all victims are assumed to have a right to review due to Article 11’s language, and in particular the appellant’s submission that Article 11’s title (Rights in the event of a decision not to prosecute) indicated an unequivocal right to review. Rafferty LJ continued to assess this submission in reviewing Article 10 of the Directive, which does not contain the word “right” but enshrines a right to be heard and confirms that the Directive should be read as a single scheme where various rights are employed in a variety of ways. The Directive’s scheme is to be adopted within the context of the particular criminal justice system within each Member State.
Rafferty LJ further concluded that the language of the Directive did not indicate an unfettered right of victims; to that end, Rafferty LJ held (with Lord Justice Kitchin and Mr Justice Birss in agreement) that Article 11 establishes the procedural rules for review within Member States and that the VRR provides a degree of specificity which adequately gives effect to the Directive.
Rafferty LJ went on to consider the appellant’s submission that the Directive should be read in line with the CoA’s decisions in R v Killick  EWCA Civ 1608 and R(L) v DPP  EWHC 1752, arguing that the decision in Killick did not differentiate between decisions which would or would not attract a right to review. Rafferty LJ confirmed the Court’s decision that Killick did not demonstrate recognition of a right to review in a literal sense but that the Divisional Court’s decision (in dismissing the appellant’s claim for judicial review) was correct and prevented extending the scope of VRR to cases where at least one suspect was not charged. Extension of the scope of Killick would raise proportionality concerns and would fundamentally undermine the CPS’s operational and prosecutorial discretion.
Secondly, Rafferty LJ turned to the Divisional Court’s consideration of “carve-outs” within the Directive concluding that in permitting a Member State to define the scope of any right, it followed that the Directive also allowed for Member States to exercise discretion in defining the scope for decisions which are not entitled to review. In reading Article 11(1), Rafferty LJ held that Article 11(1) defined that the procedural rules for a review be set by national law which goes to support the conclusion that Member States can define the parameters for that right, as outlined in the VRR.
In dismissing the second ground, Rafferty LJ highlighted the adversarial system in England and Wales and the CPS’s position as being overburdened with complex prosecutions, often involving historic allegations, thereby requiring intensive evidence collection and review prior to indictment. Moreover, the Serious Fraud Office (SFO) is often contemplating cases years in advance of being in a position to make a charging decision. The appellant’s assertion that the consideration processes of the CPS and SFO could be halted to permit independent review would undoubtedly have significant risks to the administration of justice which outweighs a victim’s right to review.
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