When the Government said that it would put victims first in June 2013, one initiative was to introduce the Victims’ Right to Review (“VRR”) Scheme. This had two outcomes. Firstly, it raised victims’ expectations. Secondly, it put further strain on limited CPS resources. With that backdrop and as one might expect, the VRR has not been a shining success thus far. Indeed, victims seeking redress of the outcome or handling of the cases that the police or CPS have actually dealt with are likely to be the end of the priority list considering the significant cuts to policing and prosecutions.
The most highly publicised case where charges have been reconsidered and subsequently brought by the State following a Victims’ Right to Review (VRR) was the case of the late Lord Greville Janner: A case of historic sexual abuse allegations in which the peer was accused of 22 counts of sex offences against boys, over a 20-year period from the 1960’s. However, of note, sexual offending is an area of criminal behaviour the CPS is committed to tackling despite Government cuts.
Unusually, in the Lord Janner case and at the request of The Director of Public Prosecutions, (DPP) Alison Saunders, the decision not to prosecute was reviewed by an independent lawyer rather than a CPS lawyer.
A flaw in the ‘VRR’ Scheme
The decision to use an independent lawyer to review the case in respect of Lord Janner was interesting for the DPP and perhaps this was done due to the high profile nature of the case. However, for most normal victims who use the VRR scheme their case is first reviewed by a lawyer from the local area where the original decision was made, by way of ‘local resolution’. If the victim is still not satisfied, the CPS Appeal and Review Unit, based in London, or a senior prosecutor elsewhere will review the case again.
The VRR scheme has been criticised as the reviews under the scheme are typically done by a panel of colleagues reviewing the decision of a lawyer who is known personally to them.
Who is a Victim?
A victim for the purposes of the VRR scheme is a person who has suffered harm, including physical, mental or emotional harm or economic loss directly caused by criminal conduct.
Which Decisions can be reviewed?
Under the VRR scheme, victims can seek a review of the following CPS decisions:
- Not to charge.
- To discontinue (or withdraw in the Magistrates’ Court) all charges thereby ending all proceedings.
- To offer no evidence in all proceedings.
- To leave all charges in the proceedings to “lie on file” (this is a term used in circumstances where the CPS makes a decision not to proceed and request that the charges be allowed “to lie on the file” marked ‘not to be proceeded without the leave of this Court or the Court of Appeal’)
A victim can not seek a review of a CPS decision to charge a suspect with a lesser offence or challenge a decision by a police officer to use an out of court disposal.
The timescale for instigating a VRR is 5 working days from the date of the communication to the victim of the decision not prosecute. However, the CPS will usually consider a request for up to three months from the communication of the qualifying decision.
The local resolution review should be completed within 10 working days. If the decision not to prosecute is upheld, the victim then has 10 working days to inform the CPS Appeal and Review Unit in London that they wish them to review the case. The CPS will then aim to complete a full review of the case within 30 working days.
The timescales for VRR’s can cause a problem when it comes to victims being able to engage the CPS for an effective review of the decision, as it does not leave a victim with a great deal of time to reflect on the reasons why the decision has been made, nor what can be done to counter any perceived deficiencies in a case.
Making an effective VRR
There are options open to victims that can assist with the VRR process, but this requires action going over and above merely requesting the CPS to review the decision. Typically, a decision not to prosecute is made on an evidential basis, for example, the CPS is of the view that the evidence presented to them by the police does not provide a realistic prospect of conviction.
What victims may not be aware is that they can make written submissions to the CPS as part of the VRR scheme, and in some cases the CPS may be willing to consider further evidence. The best time to do this is during the local resolution stage. Once the case has been referred to the CPS Appeal and Review Unit in London they will consider written submissions in support of a prosecution, but they will only conduct a review of the evidence that was reviewed locally in making a decision.
The starting place for the victim is to try and seek as much time as possible in order to sufficiently prepare their written submissions. It is quite proper for a victim to inform the CPS that they wish them to review the decision, but that they intend to make written submissions for CPS consideration as part of the VRR process and ask the CPS for time in order to prepare these submissions. At the local resolution stage the CPS can allow you up to 3 months to do this. This extra time may be sufficient to allow the gathering of further evidence that might plug any perceived gaps in the case which led the CPS to the view there was insufficient evidence to charge.
The victim should in the first instance request a copy of the CPS rationale document outlining the reasons why a decision not to prosecute has been made, as the letter victims receive communicating the decision is quite often short and does not fully explain the reasons behind the decision. This rationale document is referred to as an MG3A, and there is no reason why a copy of this should not be provided to the victim. A request should also be made to the investigating police officer for copies of the evidence.
The officer may not be willing to provide the victim with copies of evidence without a Subject Access Request and/or other Data Protection Act 1998(DPA) requests being made. It can take the police up to 40 days to respond to these type of DPA requests, which is another good reason in support of a request for 3 months in order to formulise and submit written submissions to the CPS.
A victim is unlikely to be familiar with the terms used by the police and CPS or have the knowledge of how the Code for Crown Prosecutors Full Code Test was adopted and implemented by the CPS in making these decisions. A victim – be it an individual or a corporate – may be best advised to seek legal advice from a lawyer that is familiar with the Full Test Code for Crown Prosecutors. These lawyers will be able to advise the victim and give them an objective second opinion as to the sufficiency of the evidence and guide them as to what further evidence if any is required in order for there to be sufficient evidence to meet the Full Test Code. This way the victim will be able to submit meaningful submissions and where appropriate, additional evidence in support of a decision to prosecute the case.
Victims of crime can seek a Judicial Review of the decision not to prosecute, but this step can only be taken once a victim has exhausted their rights under the VRR scheme so it makes sense to submit written submissions in support of the VRR request.