Victims’ Right to Review: how have things changed?

Last week, the Law section of The Times published an article reviewing the first half of the year since the CPS introduced Victims’ Right to Review. The new review scheme was introduced in June 2013, prompted largely by the case of R v Christopher Killick [2011] EWCA Crim 1608. Killick was convicted of a number of sex offences, but only after the victims instructed lawyers to complain to the CPS after the case against him was dropped.

Prior to June 2013, the only options available to victims unhappy with a charging or discontinuance decision by the CPS were a) to make a complaint about the level of service received from the CPS, or b) to seek judicial review of the CPS’s decision. There was no right to a simple review of the decision regarding whether to prosecute. Killick highlighted the right under Article 10 of the EU Directive on establishing minimum standards on the rights, support and protection of victim of crime that ‘Member States shall ensure that victims have the right to have any decision not to prosecute reviewed.’ Of the 1600 annual complaints received by the CPS prior to June 2013, half of those related to a decision to not prosecute or to discontinue proceedings, yet fewer than 2% of decisions were overturned.

The Times’ recent article suggests that there has been a significant change in the conclusions reached since the introduction of the new scheme. It is anticipated that there will be 1500 challenges in the course of the first year and, of those already received, 70 decisions have been overturned. The new success rate for victims is therefore approximately 10%. Of those, 57 were charging decisions, and 15 were decisions to discontinue a prosecution. They include sexual offences, offences against the person, fraud and forgery offences, theft and criminal damage.

Victims’ Right to Review may strike fear into suspects and defendants recently on the receiving end of news that they will not be charged or prosecuted; the DPP commented that ‘it is now recognised by the criminal justice system that the rights of the victim can outweigh the suspect’s right to certainty.’

However it should be noted that there a number of decisions to which the victim continues to have no right to review. Charging decisions made by the police will not be eligible for review. In addition, those CPS decisions which may be reviewed are specific and limited:

i) Not to charge

ii) To discontinue (or withdraw) all charges

iii) To offer no evidence

The result of this will be that many victims may find that the scheme is not relevant to them. Cases which continue on altered or alternative charges will not fall within the scheme, even where a prosecution is only pursued in relation to a substantially lesser offence. Cases which are concluded by out of a court disposal, may not be reviewed at the victim’s request. This caveat would apply to cautions which, in theory, could be given in respect of any offence. Victims should also be aware that they have no right to review the decision to prosecute with a request that proceedings are discontinued.

Keir Starmer, previous Director of Public Prosecutions, said that he hoped the new scheme would mark an end to victims being treated like ‘bystanders’ in their own cases. However, it is unlikely that the strengthening of victims’ rights will be as dramatic as hoped by some. Even where a Reviewing Prosecutor considers a decision to be wrong, consideration will then be given to whether a charge should now be brought or whether proceedings ought to be re-instituted. Where the CPS has offered no evidence and the defendant has been acquitted, or where the statutory time limit for bringing proceedings has passed, redress will be limited to an apology.