Well, after a lengthy consideration, the CPS have published the summary of responses as well as the final guidance. They have largely
ignored decided not to go with the various suggestions that people have made and the final guidance is pretty similar to the original.
The final guidance is worth reading and taking on board. It is very surprising how few lawyers (defence and prosecution) and Judges are aware of it. It’s important whichever side you are on as it makes another big step along the fundamental changes in favour of victims that has been pretty much continuous over the last ten years or so.
How will this work in practice?
The basic idea is that a victim has a right to seek a review of the following decisions:
- Not to charge a suspect
- Discontinuance of a prosecution
- Offering no evidence (post plea)
- Leaving charges on file
Only if this applies to all decisions relating to a victim. So, if the CPS charge a Common Assault but not an ABH, or drops one or two of several charges against someone, then this won’t bite.
Who can apply?
Anyone who is a ‘victim’, namely “a person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct“. As was pointed out by many in the consultation response, this raises more questions than it answers. It’s straightforward in many cases of course, but it’s easy to think of problems.
When a qualifying decision is made, the victim will be notified. This notice should contain ‘sufficient information to enable a victim‘ to effectively decide whether or not to seek a review. No reasons or submissions have to be given, a request to review is enough to trigger it.
One area that was raised in the consultation response is what, if any, role a lawyer could play in this. Clearly it would be best for someone to get legal advice, and have a request drafted in legal terms. Often a case will not be charged or, less often perhaps, dropped, due to an erroneous interpretation of the law. This is something that a lawyer can bring to the attention of the CPS.
What is the time frame?
A request should be made within 5 working days, so time is of the essence generally. This makes sense when you think that a defendant may well be in limbo at this stage.
The CPS should turn around the request for a review within 10 working days of receipt. This will then be resolved there or passed to the Appeals and Review Unit or Chief Crown Prosecutor for the area who will then have 20 working days to consider this and report back.
The above isn’t fixed in stone and can be extended or shortened in suitable cases.
One huge question is what happens if someone is at Court and a decision is made to offer no evidence. What right has a victim have to challenge that decision there and then? The answer would appear to be that they don’t have that right (the paper talks of informing a victim of the decision). Given that this is when most such decisions are made, this is a huge omission. It is not surprising, as most Judges would not be happy with a situation where such a case is adjourned off to allow this to happen, with the possibility of coming back in for trial, but it is a weakness in the scheme.
Another large one is that there will be plenty of cases where a decision to take partial pleas are made where the victim is unhappy. It will be slightly strange for a prosecutor to go to a victim in Court and say “we’re offering no evidence – here’s how to review it if you don’t like it, but by that point if I have got it wrong, then it will be too late“.
What’s the remedy?
Depends on what happens. Where proceedings can be started or re-started, then they will be. If not, then the victim will get an explanation and an apology.
Will this always happens?
No. Of course not. A critical point is in what percentage of cases this process work. Hopefully it will be over 95% (so that there is just the odd aberration), but knowing the CJS, this is pretty unlikely. This may well give rise to plenty of satellite litigation (and cases for damages) on this issue. There is no provision for payment of damages (that would need a JR).
How big a change is this?
As noted in the guidance, this isn’t that different to the position that previously existed. You could JR a decision not to prosecute. Obviously, this is costly unless you can find someone to do it for free (I did such a case pro bono and there was a hell of a lot of work) given the government has taken an axe to legal aid. Even then, you’re running the risk of a large costs order if unsuccessful. This is a much more cost effective way of doing it.
A JR is more wide-ranging however, and a final decision of the CPS can still be reviewed . Whilst someone who applies for a JR will have had to go through the CPS review procedure, there will be cases that slip through the net. Additionally, a claim for damages could be included on a JR, which has greater scope for a remedy.
So far there have been ‘1,186 appeals’ lodged, with 162 being successful (I’m not quite sure about those figures, but never mind, they will be roughly. So that’s a rate of about 13.5%. I’m not sure if that’s high (one in seven or eight decision being wrong is a lot) or low (as only the most blatant ones would probably be reviewed). The take-up rate is again high or low, depending on how you look at it.
Where do the lawyers fit in?
I’m going to have a little plug for myself (and, more widely, my profession) here. I often get told that I don’t do this enough, so here goes. I would imagine that there is much more likelihood of a successful review if a lawyer gets involved (or proper advice can be given). This is not just because it will be able to focus on the important issues, things being what they are, a lawyer is likely to give more ‘anxious scrutiny’ to a case where a lawyer has prepared reasons.
This is something that would be perfect for public access (here is my website that I’ve been setting up that covers what this is and the sort of public access work I do), as it is often a discrete and easily manageable type of case that can be easily done by email if needed. One day I might get round to advertising my services properly in this area, but if you know anyone that is looking for a lawyer for this sort of thing, drop me a line.