R (FNM) v DPP  EWHC 870 (Admin) – High Court grants judicial review under Victims’ Right to Review Scheme
In this important recent judicial review, the High Court ordered the Director of Public Prosecutions (DPP) to reconsider his decision not to prosecute a suspect (T) over the alleged rape of a 15-year-old girl. The Claimant challenged the lawfulness of the refusal of the Crown Prosecution Service (CPS) to accept representations from her, in the context of her request for a review under the Victims’ Right to Review Scheme (VRRS), prior to making its decision not to charge T.
The Claimant reported to the police her belief that she had been raped and sexually assaulted at a party by T. T admitted sexual intercourse with the Claimant but denied rape.
The police referred the matter to the CPS, which declined to prosecute T. The Claimant exercised her right to a review under the VRR Scheme and the initial decision was upheld by the CPS.
The Claimant requested a further review and time to take legal advice and was told by the CPS’s Appeals and Review Unit (ARU) that an update would be provided to her on 27th September 2019, pending her representations. On 9th August, however, the ARU upheld the decision not to prosecute.
Issues in the case
The Claimant’s case was that the VRR scheme confers a right to fair opportunity to make representations upon its own wording, and when properly construed in light of common law requirements for procedural fairness. She argued that she had a legitimate expectation that her representations would be considered before the ARU made a final decision on whether to prosecute T.
The DPP responded by arguing that the rights conferred by the scheme were limited to requesting a review, so there was no procedural unfairness. As there is no “right” for a fair opportunity to make representations, there could be no legitimate expectation arising from the ARU’s correspondence providing the date of 27th September.
The Divisional Court affirmed that victims must be given a fair opportunity to make representations and, where they did, to have these taken into account by the decision-maker.
The Court clarified the limits of the right and emphasised that the DPP need not invite representations, nor can a Claimant hold up the review process for any significant period so that he or she may formulate them. A Claimant also has no right to make representations during the police charging decision, unlike the defendant. The Claimant succeeded in her judicial review because the ARU had reneged on its agreement to allow the Claimant to take legal advice and thereafter to make representations before concluding its review.
The Court in granting the application for judicial review, quashed the DPP’s decision of 9th August upholding the original decision not to prosecute T. The decision of the Court meant the Claimant had 21 days from the date of the judgment to submit her representations to the CPS, after which a fresh decision was to be taken by a member of the ARU not previously involved with the case.
The independence of prosecutors is central to the criminal justice system of a democratic society. This is highlighted in the Guidance on the VRR Scheme, which states that “it is an important principle that people should be able to rely on decisions taken by the CPS as being final and that such decisions should not normally be revoked.”
Nevertheless, the Court’s confirmation is significant that where a victim has made been assured by prosecutors that they will be listened to, they must be heard.