Concerns over a victim’s right to challenge

Last week a second alleged victim of Sir Cliff Richard lodged a challenge over the decision by prosecutors not to charge the singer with sex offences, on the ground of insufficient evidence. A final decision may be “within weeks”.

The challenges mean that the singer, 75, who has already been the subject of a year-long investigation into accusations dating between 1958 and 1983, is still awaiting a final decision on whether he will stand trial. There has been no arrest since the highly publicised raid on his home two years ago. Sir Cliff robustly denies the charges.

The challenges have been made under the victims’ right of review scheme. People who believe they are victims of crime can challenge a Crown Prosecution Service decision not to charge a suspect or drop proceedings. Last year one such challenge resulted in an overturning of the decision not to prosecute Lord Janner over child sex abuse allegations: the decision was made by a QC outside the Crown Prosecution Service (CPS), David Perry.

Yet criminal lawyers have concerns over the right. Nick Barnard, a criminal lawyer with Corker Binning, says: “Suspects in criminal investigations have a right to certainty in prosecutorial decisions but the reality of the right to review is that cases can limp on for months . . . with no real deadlines and no appeal process, all that remains is the nuclear option of judicial review.”

Ironically, it was because judicial review was the only way victims could challenge a prosecution decision that the right was introduced in the first place. In 2011 the Court of Appeal ruled that victims should have a right to review and should not have to exercise it through the (expensive) route of judicial review. So the CPS consulted on a scheme to give effect to that ruling.

Announcing the reform in 2013, Keir (now Sir Keir) Starmer, then director of public prosecutions (DPP), said: “The criminal justice system historically treated victims as bystanders and accordingly gave them little say in their cases. The decisions of prosecutors were rarely reversed because it was considered vital that decisions, even when later shown to be questionable, were final and could be relied upon. This approach was intended to inspire confidence, but in reality it had the opposite effect. Refusing to admit mistakes can seriously undermine public trust in the criminal justice system.”

Groups such as Victim Support said that the reform would help “to reposition victims back at the heart of our justice system” — a comment made at a time when the system was seen as weighted towards defendants.

Of 126,589 prosecution decisions in 2014-15 that could have been reviewed, 1,674 challenges were made. Of those, 210, or 12.5 per cent, were altered. So the chance of changing a decision is small. “Realistically, what victims are most likely being offered is confirmation of the original decision and, in the end, this is probably just salt in the wound for many,” Barnard says. Most are being offered “false hope and prolonged delay”, although this is presented as “entirely possible that the decision was incorrect”. The result, he says, is invariably disappointment, and a loss of faith in the CPS — and a deferral of “closure” of the whole experience.

Then there is the question of who conducts the review. Unusually, with Janner, the decision went to an outside QC. Sir Cliff’s decision is being reviewed by a senior CPS lawyer with no previous involvement in the case.

Stephen Parkinson, a partner and the head of criminal law at Kingsley Napley, says that the Janner case highlights the problems. “The DPP took the decision in that case that a prosecution would not be in the public interest. Her decision was perfectly sensible and was articulated well in the decision notice issued. But because there is no one more senior than her in the CPS, the review had to be conducted by a QC from outside the CPS. He took a different view on the public interest, but it was a highly marginal decision, and many people thought his view was wrong. This conclusion damaged and undermined the office of DPP.”

One option would be for decisions in big cases to be taken by more junior CPS lawyers, leaving the DPP free to conduct any review sought. That, though, would be “irrational” and “exclude the DPP from decision-making in all significant cases, unless a complaint is made”. There is a strong case, he says, for overhauling the scheme to ensure that the DPP is free to make decisions without the possibility of being over-ruled by those outside the CPS.

In the meantime, the scheme may make disappointed “victims” feel better but is a luxury “we cannot afford” when resources are scarce, Barnard says. The CPS faces “immense pressures” and anyone dealing with it must have sympathy with that, despite frustration at the consequences. Yet, he says: “If too few people deal with too many cases, mistakes will result. An ill-formed and uncertain review scheme, built at the cost of first-instance decision-making, only exacerbates the problem.”

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