Reviewing prosecutorial decisions: who benefits?

If, at the end of a criminal investigation, no prosecution results, is that really the end?

In most cases, the end of a criminal investigation is signalled by the police advising that they intend to take no further action, or that a referral to the Crown Prosecution Service (CPS) has concluded that there is insufficient evidence or public interest (or both) to pass the tests laid out in the Code for Crown Prosecutors.

Until June 2013, the vast majority of these decisions would only be revisited if new evidence came to light. However, following the introduction of the Victims’ Right to Review Scheme (‘the Scheme’) in June 2013, such cases (as well as those to withdraw a prosecution, offer no evidence, or allow charges to lie on file) can be reconsidered, even though the evidence and circumstances remain exactly the same.

The Scheme came to public attention in September last year, when it was announced that the decision not to prosecute Sir Cliff Richard with historic sexual abuse allegations would be reviewed. Although that decision was upheld within a few weeks, it added a further layer of delay and uncertainty to an investigation which by then had been going on for two years, since the highly-publicised raid on his home.

The Scheme’s limitations were also tested in May 2015, when complainants requested a review of the DPP’s decision that the late Lord Janner should not be prosecuted. Given there was no one else left in the CPS to whom the review could be referred, it was necessary for the DPP to appoint an independent QC, who concluded that it was in fact in the public interest to prosecute, notwithstanding Lord Janner’s ill-health. The trial proceeded in August 2015, but by December 2015 was abandoned as the Old Bailey concluded that Lord Janner was unfit to stand trial.

Exceptional examples aside, is the Scheme fair to suspects, beneficial to complainants or a proportionate use of CPS resources?

The practical problems

The most significant practical problem for the majority of suspects (whose cases are unlikely to be reviewed by the DPP) is that the Scheme fails to set time limits by which reviews must be concluded, thus failing to provide complainants (designated as “victims” in the Scheme) and suspects with the certainty to which they are both entitled.

The CPS policy on the Scheme starts nobly enough, requiring that the initial stage (‘local resolution’) is completed within 10 days. Local resolution involves a prosecutor unconnected to the case considering whether the decision was correct and, if so, whether the victim has been given a sufficient explanation. If it is concluded that the decision was correct, but that further explanation is possible, then this should be provided.  If the victim is dissatisfied with the further explanation, or if no further explanation can be provided, or if the reviewing prosecutor concludes the decision was wrong, the matter proceeds to ‘independent review’. At this point, deadlines disintegrate into good intentions.

‘Where possible’, an independent review will be completed within six weeks. However, such optimism is immediately qualified as, ‘if the case is particularly complex or sensitive, it is likely that it will not be possible to provide the outcome within the usual time limits’. The best that a victim is offered is the promise of regular updates. Unsurprisingly, the CPS does not record data on how long such independent reviews take.

At this point, the Scheme crosses the line from a kind gesture to disappointed victims into an injustice against suspects. Without the impetus of a live criminal investigation, there is little motivation to reach a conclusion and the suspect has little power to escape the limbo. In this firm’s experience, cases can limp on for months. With no real deadlines and no appeal process, only the nuclear option of judicial review remains. Ironically, one of the key findings in R v Killick [2011] EWCA Crim 1608, which paved the way for the current Scheme, was that victims should not have to resort to judicial review of the CPS.

As an aside, although it may have been intended as a means of discouraging judicial review, the Scheme itself is not immune from being challenged in the courts. Most recently, it required the prospect of judicial review to persuade the CPS to reconsider the non-prosecution of an allegation of incitement to religious or racial hatred. Members of the group targeted had previously requested a review but were apparently turned down on the basis that they were not ‘victims’ within the meaning of the Scheme.

This test of the Scheme’s boundaries also raises interesting questions about whether the Scheme could ever be extended beyond the CPS to other agencies. The Serious Fraud Office and the National Crime Agency are tasked with investigating offences the size and scale of which often mean that where individual victims could be identified, this would only be by their membership of a broader class. Would any shareholder of a defrauded company, or an investor in a fraudulent scheme, be entitled to review the SFO’s decision not to prosecute? Thinking even more broadly, should being a taxpayer give the right to a review of CPS decisions not to prosecute cases referred by HMRC? Should any member of society be entitled to challenge where the offences concern drugs, firearms or terrorism?

A real chance or a false hope?

In practice, the local resolution stage of the Scheme should be redundant. If the outcome not to prosecute can be reversed so easily, this is a damning indictment of prosecutorial decision making. If it is not reversed, but the further explanation is sufficient to dissuade the complainant from pursuing independent review, then why was this explanation not provided in the first place? The published data does not reveal how many cases fall into the latter category, but one suspects few.

In its published data, the CPS rather over-eggs the statistical pudding by noting that of the 126,589 decisions in 2014/15 which could have been reviewed, a mere 0.17% were altered on review (the figures for 2015/16 have yet to be published). The alternative presentation of the data is that of the 1,674 decisions which were reviewed, 210 (approximately 12.5%) were changed. But this data can never look good. If a significant number of reviews are upheld, CPS lawyers are damned and demoralised. If few are upheld, the Scheme is denigrated as a waste of time.

No data is available on how many additional convictions actually resulted following a reversal of the original decision. It may be none, although this should not necessarily be held against the Scheme; the fact that a defendant was found not guilty does not mean the decision to charge was improper.

But whichever way it is spun, if the Scheme is presented to an aggrieved victim as having anything but a small chance (0.17% if the CPS interpretation is applied) of changing the outcome, it is being mis-sold. Realistically, what the vast majority of victims are most likely being offered is confirmation of the original conclusion and, in the end, this is probably just salt in the wound.

The false hope and delay therefore offer little to victims as well as suspects. The hard truth is that some cases fail either the evidential test or public interest test, or both. The best we can do for victims in such situations is offer reassurance that the investigators and prosecutors were diligent and careful and, understanding the strict requirements of the Code for Crown Prosecutors, that a decision not to prosecute was the right one.

Whilst an investigation is ongoing, it is arguably only right that the balance of rights between suspects and victims should fall in favour of the latter. Once the investigation has been discontinued, there needs to be a rebalancing of these rights. The Scheme pays no heed to this principle.

What the Scheme tells victims is not that there is a small chance that the determination was wrong (the risk of which cannot ever be eliminated), but rather that it is entirely possible that the CPS was wrong. The end result is disappointment when no change results, and a loss of faith in the CPS. The further cost for the victims and their families is shared with suspects; a deferral of the closure which is vital in moving on from such experiences.

The fundamental problem is that the Scheme is only part-built. It purports to be a check against poor decision-making without considering whether it is realistic to allow every “no further action” decision to be revisited. Lord Janner is a particularly extreme illustration. If we cannot accept that the buck for prosecutorial decisions stops with the DPP, then something is amiss. But the principle applies to the everyday cases as well.  Ultimately it is neither proportionate nor fair on the police and CPS that every judgment they make is open to routine challenge.

It may be that, if nothing else, the Scheme makes victims feel better, as if someone has really listened. However, given the limitations of public funding, this is a luxury we cannot afford.  Anyone who has encountered the CPS in professional life cannot fail to have sympathy with the huge pressure it is clearly under, whilst also being immensely frustrated by the consequences. If there are too few people with too many cases to manage, then inevitably mistakes will result. An ill-formed and uncertain review scheme, built at the cost of first-instance decision making, only exacerbates the problem.

Please also see Ben Henriques’ article on the CPS judicial review here.