A victim has a right to request review of a decision not to prosecute or to discontinue a prosecution, but do they have a right to make representations?
The Crown Prosecution Service’s (CPS) Victims’ Right to Review scheme (the Scheme) was introduced in 2015, and in practice means that a complainant in a criminal matter has the right to request a review of a decision by the CPS to either not prosecute or to discontinue charges, without needing to resort to judicial review through the courts.
In a recent case before the High Court (R (FNM) v DPP  EWHC 870 (Admin)), the Court considered whether the Scheme also includes a right to make representations on the request for review.
The original complaint to police
FNM at the time of the alleged offence was 15 years old and vulnerable. She stayed the night at an older girl’s house. A number of other people were there including a young man, D, who was also invited to stay. FNM had met D before and FNM said that he had previously made unwanted sexual advances towards her and that he was aware she was only 15 years old. FNM was told she would be sleeping in the same room as D that night.
FNM took ecstasy and smoked cannabis with the others in the house that evening. She was also persuaded to take a number of Xanax pills and she remembers little of the rest of the weekend. FNM believes that she was sexually assaulted a number of times over the course of the weekend and remembered that she had been in bed with D, clothed, on a number of occasions.
The police were called and attended the house, arriving late Sunday afternoon. A police officer heard D shout “f*** off, I’m shagging my bird”, shortly before he then found FNM in bed with only her underwear on. FNM was severely intoxicated, needed assistance to walk and was hardly able to speak.
Forensic examination found D’s semen inside FNM’s underwear, but not in her body or on the bedsheets, both of which had been washed before examination.
FNM made a complaint to the police who told her D had been interviewed. D admitted they had had sex but claimed he thought she was 16 or 17.
The CPS wrote to FNM on 2 October 2018 stating they would not be prosecuting as FNM was unable to remember what had happened.
The Review under the scheme
FNM sought a review under the Scheme without making representations.
A local review was conducted with a decision that while D had admitted to having sex with FNM in his police interview, and the forensic evidence suggested sexual activity, it did not confirm that sexual intercourse had taken place. Further, it was noted that without FNM being able to recall what had happened, the jury would not be able to understand.
FNM’s father was not happy with this decision and wrote to the CPS saying they had failed to consider the clear evidence of FNM’s intoxication. FNM independently wrote to the CPS requesting a further review. The CPS responded to her in July 2019 with the following key extracts reported in the High Court decision:
….I have spoken to the reviewing lawyer and can see we are due to provide an update regarding the review on 11/07/2019.
The reviewing lawyer had made suggestion (sic) the review will not be complete by the above date and an extension will be required, therefore can I ask for you to send in your representation as soon as possible.
Whilst you, or your legal representative are at liberty to make representations, and whilst the reviewing lawyer will have regard to them as far as possible, it is essential that the independence of the CPS decision is maintained and that the decision can be seen to have been made in accordance with the Code for Crown Prosecutors, based upon the evidence and upon an impartial application of the law to the facts, without fear or favour.
Therefore please note 27 September 2019 for the ARU to provide you with an update pending your representations, may I make you aware we will not be holding the review and nor will we be seeking your representations should they not be forthcoming.”
A decision was made by the CPS on the further request for review on 9 August 2019, without waiting for FNM’s representations.
The decision provided that there was sufficient evidence that D had had sex with FNM as per his admission, but that the central issue was consent. While there was evidence that FNM was under the influence of something at the time, the difficulty was that it could not be said what condition she was in at the time of the sex. It was also commented that it was “one word against the other” and there was no other evidence that D was aware of FNM’s age.
The High Court decision
FNM argued that:
- She had a right to make representations under the Scheme;
- The CPS had an obligation to consider them once they had been made; and
- She had a legitimate expectation that the CPS would not make a final decision until 27 September 2019 and therefore she had time to make her submissions before that date.
The Director of Public Prosecution’s (DPP) view was that while the Scheme gives a complainant a right of review, it does not give a right to make representations to seek to influence the outcome on review. Key in this view is the overall purpose of the Scheme which is to allow for a fresh consideration of the facts. The DPP noted that it is very important that such decisions remain impartial and independent prosecutors are not swayed by representations; rather that they make their decision based on the investigation conducted by the police and the evidence gathered. It was also submitted that if a right to make representations existed within the Scheme, that the Scheme would need clearly defined limits on such representations and their use.
At the hearing, a concession was made by the DPP that the language used in the letter (extracted above) could have been more clearly expressed.
The Court was sympathetic to FNM who assumed that no final decision would be taken until 27 September 2019. At this time, FNM had already engaged legal assistance and began to formulate submissions to the CPS, which she had understood were invited. The Court found that the only right established under the Scheme is the right to seek a review. It further found that while a complainant has an opportunity to make representations and have them taken into account, it does not go any further than that.
However, in FNM’s case, as she and her father were led to believe that they had until 27 September 2019 to make representations before a decision was made, the Court found that “there was a simple failure of due process when the decision…was taken without waiting for the Claimant’s representations”.
Ultimately, the Court found that the decision was taken unlawfully and FNM was given 21 days to provide her submissions to the CPS in support of her request for review. The Court returned FNM’s application for review to the CPS for a fresh decision to be made by a different prosecutor.
- While the Victims’ Right to Review scheme establishes an opportunity to make representations in support of a request for review, it does not give a complainant the right to make representations and a decision can be taken in the absence of representations if they are not made.
- If representations are made, the decision maker is under a duty to consider them, but only so far as is appropriate.
- The CPS is under no obligation to invite observations or representations from the complainant.
Whether you are a victim, a witness, or both we have a team of specialists who can help you navigate the complexities of the criminal justice system and make sure your rights and reputation are protected and advanced.
Support that we offer to victims of crime includes:
- Helping you to understand your rights and entitlements under the Victim’s Code;
- Assistance with reporting a crime to the police;
- Supporting you during the course of a police investigation;
- Providing you with guidance and information on court procedures and process and case progression;
- Advice and assistance in applying for special measures for when you give evidence (e.g. video evidence; screens and reporting restrictions);
- Challenging a decision by the Police or CPS not to prosecute through the Victims’ Right to Review scheme;
- Drafting victim personal statements;
- Commencing a private prosecution in circumstances when the Police or CPS is unwilling to act.
About the Authors
Sophie Bolzonello is an Associate, Australian Qualified, in Kingsley Napley’s Regulatory department. Sophie specialises in advising regulated professionals on compliance, in investigations and in respect of enforcement action. She also advises regulators on policy, governance, prosecutions and litigation.
Shannett Thompson is a Senior Associate in the Regulatory team. She is a highly experienced lawyer taking the lead in defending health professionals before their regulatory bodies including the GMC. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context.
Associate (Foreign Qualified Lawyer)