What is the victims' 'Right to Review Scheme'?

Posted by Malcolm Johnson on

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The Crown Prosecution Service have reviewed the evidence in the investigation of allegations against Sir Cliff Richard, and they have decided not to proceed with any criminal charges.

Back in July 2016 claims that the singer had assaulted four men were dropped on the basis of insufficient evidence. Following this, two applications were made under the Victims' Right to Review Scheme. Under that scheme, the CPS can be requested to review their original decision not to proceed with a prosecution.

So what is this Scheme, and how does it work?

Victims of crime have long had the right to seek a judicial review of a decision of the CPS not to prosecute a person. However, judicial review is an expensive and cumbersome process. It is now established that the right to review can arise from a simple complaint.

In the Court of Appeal decision of Regina v Christopher Killick [2011] EWCA Crim 1608 the court had to deal with a case that involved the sexual abuse of three men, who complained of sexual assaults. All three suffered from cerebral palsy but they were unimpaired mentally. Their assailant also suffered from the same condition, although not to the same extent. He was convicted of abusing two of the men, but not the third.

The assailant then appealed against his conviction. Part of his argument was that he had been told by the police that the prosecution against him would be discontinued, and also that he could not have a fair trial given the passage of time. He was ultimately unsuccessful before the Court of Appeal.

During the course of the judgment, the Court of Appeal said that the victims had complained to the Crown Prosecution Service about their original decision not to prosecute their assailant. In effect they wanted a review of that decision.

The Court of Appeal considered the right of a victim to seek a review of a decision not to prosecute.

Lord Justice Thomas said at para. 48 of his judgment:-

"Although in form the request was made as "a complaint", what was sought was a reconsideration by an interested person of the decision. Far from the CPS being able to refuse to do this, it was bound to do it. In the first place, the CPS has made clear that it will review decisions........if a "complaint" is made. Second, it has for some time been established that there is a right by an interested person to seek judicial review of the decision not to prosecute (see R v DPP ex p C [1995] 1 Cr App 136); it would therefore be disproportionate for a public authority not to have a system of review without recourse to court proceedings. Third, it is clear that in considering whether to prosecute the prosecutor has to take into account the interests of the State, the defendant and the victim – the three interests in a criminal proceeding as identified for example by Lord Woolf CJ in R v B [2003] 2 Cr App R 197 at paragraph 27. 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, particularly as the police have such a right under the charging guidance."

There is now a formal Victims' Right to Review Scheme, which applies to all qualifying cases from 5th June 2013. The Scheme draws on the Court of Appeal judgment in R v Killick as well as Article 11 of European Union Directive 2012/29/EU, which establishes specific minimum standards on the rights, support and protection of victims of crime. 

"Rights in the event of a decision not to prosecute

1.   Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.

2.   Where, in accordance with national law, the role of the victim in the relevant criminal justice system will be established only after a decision to prosecute the offender has been taken, Member States shall ensure that at least the victims of serious crimes have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.

3.   Member States shall ensure that victims are notified without unnecessary delay of their right to receive, and that they receive sufficient information to decide whether to request a review of any decision not to prosecute upon request.

4.   Where the decision not to prosecute is taken by the highest prosecuting authority against whose decision no review may be carried out under national law, the review may be carried out by the same authority.

5.   Paragraphs 1, 3 and 4 shall not apply to a decision of the prosecutor not to prosecute, if such a decision results in an out-of-court settlement, in so far as national law makes such provision."

 Details on the scheme can be found on the CPS website.

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About the Author

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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