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.