A step too far – a warning for Private Prosecutors
In June 2013, the CPS launched a scheme which allows victims of crimes to seek a review of CPS decisions not to charge, to discontinue or otherwise to terminate proceedings, where the decision was made after 5 June 2013.
On the face of it, this would seem to be a good thing as it provides victims with an alternative to launching expensive and time-consuming judicial review proceedings in order to challenge a CPS decision. However, does it go far enough to support victims and is it suitably independent?
It goes without saying that a victim who considers that the CPS has made the wrong decision in terminating proceedings may not have full confidence in the CPS as an organisation or in its decision making processes. One might therefore assume that, in order for victims to be satisfied that there has been an effective review of a CPS decision, the review would need to be conducted by an independent third party who would be unaffected by any internal pressures or prejudices within the CPS. Unfortunately, this is not the case.
When the CPS receives a request for a review, the decision will be checked by a prosecutor who has not been involved with the case previously. This is known as local resolution. While the fact that this individual was not involved with the case previously does provide a level of independence, the prosecutor is still employed by the CPS and therefore part of the organisation which made the original decision.
If the local resolution results in the original decision being upheld and the victim is provided with additional information about this decision, the victim can seek a further review by the Appeals and Review Unit (ARU) or Chief Crown Prosecutor. In cases where the original decision is confirmed and there is no additional information to provide to the victim to explain the decision, the request for review will be sent directly to the ARU or Chief Crown Prosecutor.
This second stage is referred to as the independent review. However, the ARU is still a part of the CPS as, of course, is the Chief Crown Prosecutor. While the ARU or Chief Crown Prosecutor may well consider the case fairly and neutrally, victims are likely to be concerned that this “independent” review is still essentially a review by the CPS.
It is of course a fundamental aspect of a fair judicial system that justice must not only be done, it must be seen to be done. This is particularly important for those who consider themselves to be a victim of a crime – for them the right to be heard and the need for a fair process is paramount.
The so-called independent review will comprise a reconsideration of the evidence and the public interest: the new reviewing prosecutor will approach the case afresh to determine whether the original decision was right or wrong.
Interestingly, there is no explicit right for victims to make representations at either the local resolution or the independent review stage: victims need only notify the CPS of their request for a review. The theory behind this may be that the review should only consider material available to the CPS at the time in order to decide whether, on the basis of that material, the decision was right. However, this may again give victims the impression that their views are not being properly considered.
Limits of the VRR scheme
There are various exceptions to the VRR scheme. These exceptions are fairly wide-ranging, including where some charges are brought and some are dropped, where proceedings against certain defendants are dropped but they continue in relation to other defendants or where cases are concluded by an out of court disposal (such as a caution or penalty notice).
Accordingly, the most serious charges against a Defendant could be dropped and the victim would have no right to review as long as the CPS pursues some charges. This seems a rather arbitrary distinction and one which it may be hard for victims to understand. Similarly, the fact that there is no right of review for out of court disposals means that crimes viewed by the CPS as being less serious (regardless of the view of the victim as to the seriousness) will not be scrutinised under the scheme.
While the VRR scheme is undoubtedly a step in the right direction, the lack of real independence and apparently arbitrary exceptions means that it may not go far enough to support those who consider themselves to be victims of crime. While the scheme promises much, the question remains as to whether it really delivers, or whether it leaves many victims with the choice of initiating judicial review proceedings or launching a private prosecution in order to obtain justice.
If you are a victim of crime and the CPS has decided not to proceed with the case, we can assist you with seeking a review of that decision or, where appropriate, bringing a private prosecution.
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