Dr Stephen Colman, University of Suffolk
Introduction
Increased recognition of victims in the criminal justice system has resulted in victims acquiring rights to challenge decisions not to prosecute. There are three primary ways in which aggrieved victims can do this: the CPS Victims’ Right to Review, Judicial Review or by bringing a private prosecution. The CPS Victims’ Right to Review and private prosecutions both have the potential to impact on the rights of defendants, with vulnerable defendants being particularly at risk. Defendants may be placed at a disadvantage especially if they are unaware that the decision not to prosecute might be reversed.
The Victims’ Right to Review (VRR)
The VRR was introduced in 2013 following the case of R v Killick [2011] EWCA Crim 1608 in which the Court of Appeal invited the DPP to review his procedures to ensure that victims had a way of challenging decisions not to prosecute (CPS, 2020). The VRR has a number of limitations even from the victim’s perspective as the scheme is premised on a particular construction of victimhood and a number of relatively common situations in which a case may be terminated are specifically excluded from the scheme. Despite this, the VRR does provide a free and simple way that victims can request a review of a decision not to prosecute. Although the numbers of successful requests are not high, the CPS statistics confirm that a number of reviews each year do result in a prosecution (CPS, 2022).
Although a finding by the CPS that the original decision was wrong does not automatically result in a prosecution, this does remain a possibility despite the fact that the suspect was previously informed that a prosecution would not be brought. In principle, allowing victims a right to request the review of decisions is not inherently prejudicial to the rights of defendants (they do not have a right not to prosecute and the prosecution would still have to prove the case through the trial process in the usual way). However, the VRR has a number of features which arguably place defendants at a significant disadvantage and have the potential to cause unfairness to them; vulnerable defendants may be particularly disadvantaged.
Firstly, there is a risk that some defendants are unaware of the VRR and the potential implications of it. As a result, they could assume that there is no likelihood of being prosecuted and believe the matter is at an end. This is particularly the case when the scheme is engaged during the pre-charge period when they may not have access to legal advice outside the police station. The time limits for the VRR are quite vague and can vary depending on the complexity of the case. Secondly, defendants are excluded from the VRR decision-making process as they are not informed when a request has been received and they do not have a right to make representations. Furthermore, the courts have not been amenable to attempts to judicially review VRR decisions and defendants are expected to contest the decision to prosecute through the trial and appeal processes (see R (S) v DPP [2015] EWHC 2868 (Admin)). Defendants must largely rely on the abuse of process doctrine which takes place at a late stage of the prosecution process and is unlikely to be successful in most cases.
Private Prosecutions
The decision of a victim to bring a private prosecution also has the potential to unfairly impact defendants. Private prosecutions expose defendants to the risk of arbitrary and unstructured decision-making. Private prosecutions are the exception to the general principle that prosecutions are brought by the state; instead, they are prosecuted by a party who potentially has a vested interest in the outcome. This may give rise to a conflict of interest between the responsibilities of the prosecutor and the victim’s connection to the case. There is no requirement on private prosecutors to comply with the Code for Crown Prosecutors (CPS, 2018) and other prosecution policies in the way that the public prosecutor is required to.
Although there are some safeguards for defendants from improperly brought private prosecutions, these are arguably inadequate as they rely on defendants appreciating the protections that are available to them and being able to use them. Although the CPS retains a power under section 6(2) of the Prosecution of Offences Act 1985 to take over and discontinue prosecutions which do not meet the two-stage test set out in the Code for Crown Prosecutors if there is insufficient evidence or a prosecution is not in the public interest, the CPS are not routinely informed of private prosecutions and do not automatically review them. Essentially, the defendant needs to be aware of their right to request that the prosecution is reviewed.
The recent post office case of Hamilton v Post Office Ltd [2021] EWCA Crim 577, and the other cases which followed, have highlighted the inadequacy of the safeguards for defendants in respect of privately brought prosecutions. In particular, they have highlighted the risk to defendants of improperly discharged disclosure obligations. The lack of an independent and objective review of the evidence has the potential to result in a prosecution which lacks a sound evidential basis. However, as the post office cases demonstrate, vulnerable defendants may still plead guilty despite potentially fundamental flaws in a case. Despite a number of recommendations being made by the House of Commons Justice Committee, there is no appetite on the part of the government or the CPS to strengthen the safeguards for defendants who are at risk of inappropriately brought private prosecutions (Parliament. House of Commons, 2020).
Proposals for Reform
Additional safeguards should be introduced into the VRR to protect defendants without compromising the rights of victims. As it is doubtful whether all defendants are fully aware of the VRR and the potential consequences for them of a successful request for review, clear requirements should be introduced to ensure that defendants are fully informed of the potential for the re-consideration of the decision not to prosecute. Secondly, further consideration should be given to whether it might be possible to inform suspects when a request has been received. Although the CPS states that they need to keep this confidential to protect the victim, this could be subject to a risk assessment in individual cases. If defendants were made aware of the existence of a request, they could also be permitted to make representations to the decision-maker as they are entitled to do in other circumstances in the adversarial system. Finally, greater certainty around the time limits for requesting a review and responding to it would reduce the period of uncertainty for defendants.
The power to bring a private prosecution should also be subject to further regulation to ensure that defendants are only prosecuted following an independent and objective review of both the evidence and public interest or they should be abolished. Continuing to allow individuals and organisations to bring private prosecutions without additional safeguards for defendants has the potential to lead to further miscarriages of justice. As there is a lack of willingness on the part of the government to implement such safeguards, the only course of action is to abolish the power to bring a private prosecution. Criminal prosecutions would continue to be brought by the CPS and other public bodies with a statutory prosecution function. These organisations may ultimately have to absorb the prosecution of those offences which are regularly prosecuted privately.
Reference List
CPS (2018) The Code for Crown Prosecutors. Available at https://www.cps.gov.uk/publication/code-crown-prosecutors (Accessed: 21 August 2023)
CPS (2020) Victims’ Right to Review – Policy and Guidance 2020. Available at https://www.cps.gov.uk/sites/default/files/documents/publications/Victims-Right-to-Review-Policy-and-Guidance-2020.pdf (Accessed: 21 August 2023)
CPS (2022) Victims’ Right to Review Data. Available at https://www.cps.gov.uk/publication/victims-right-review-data (Accessed: 21 August 2023)
Parliament. House of Commons (2020) Private Prosecutions: safeguards: Ninth Report from the Justice Committee. (HC 2019-21 (497)).
Prosecution of Offences Act 1985, c. 23. Available at: https://www.legislation.gov.uk/ukpga/1985/23/contents (Accessed: 21 August 2023)
Cases
Hamilton v Post Office Ltd [2021] EWCA Crim 577
R v Killick [2011] EWCA Crim 1608
R (S) v DPP [2015] EWHC 2868 (Admin)
Defending Vulnerability 