High Court overturns decision not to prosecute rape allegation
14 April 2020
The Divisional Court has recently handed down a novel decision in R (FNM) v DPP, considering the right of complainants to a fair opportunity to make representations to the Director for Public Prosecutions (“DPP”), and for those representations to be considered, when conducting a review under the Victims’ Right to Review Scheme (“the VRR Scheme”).
The Court held that in circumstances where the DPP had not waited to give the complaint an opportunity to make representations as to whether there should be a criminal prosecution, the decision not to prosecute was materially flawed.
The judicial review concerns the decision of 9 August 2019 by the CPS Appeals and Review Unit (“ARU”) to uphold a decision not to prosecute the potential defendant, T. This concerned allegations of rape and sexual assault arising out of a party at which the Claimant alleged that T knew her to be underage, and that he cannot have reasonably believed her to be consenting by virtue of being heavily intoxicated from Ecstasy, cannabis, and Xanax. T accepted that there was sexual intercourse but denied rape.
Following several CPS decisions not to prosecute, the Claimant made a VRR Scheme review request on 12 June 2019. On 1 July 2019, she requested that it be paused whilst she seeks legal advice, and that she “would be grateful if you would confirm a new decision in accordance with that”. A manager from the CPS Appeals and Review Unit (ARU) responded on 5 July 2019, stating that:
[…] Whilst you, or your legal representative are at liberty to make representations, and whilst the reviewing lawyer will have regard to them as soon as possible, it is essential that the independence of the CPS decision is maintained […] Therefore, please note 27 September 2019 for the ARU to provide you with an update pending your representations […]
However, before the Claimant submitted any representations, the ARU reached a decision on 9 August 2019 to uphold the decision not to prosecute T. It is this decision that the Claimant judicially reviewed.
Issues in the case
The first issue concerned whether there is, broadly speaking, a right for complainants to make representations before a decision is reached during the independent review stage of the VRR Scheme.
The second concerned the status of the email of 5 July 2019 and whether the decision which followed involved a failure of due process in circumstances where the Claimant requested time to seek legal advice prior to making representations and had understood the email to indicate that a decision would not be taken until 27 September 2019.
The VRR Scheme and Guidance
In 2011, the Court of Appeal in Killick noted that victims have a right to seek a review of CPS decisions not to prosecute, but that
it must be for the Director to consider whether the way in which the right of a victim to seek a review cannot be made the subject of a clearer procedure and guidance with time limits .
The CPS, headed at that time by new Labour leader Sir Keir Starmer (DPP between 2008 and 2013), launched the VRR Scheme to provide such clearer procedure and guidance on requesting reviews of qualifying decisions, one of which being not to bring proceedings.
The Guidance issued in 2016 expresses at  that
Where a victim has given reasons for requesting a review, the issues raised will be addressed in the decision letter to the victim, where appropriate.
The Claimant submitted that the communication of the Decision before 27 September 2019 was a clear breach of her right to make representations. She had such a right (encompassing both the fair opportunity to make submissions to the decision maker before a decision is reached, as well as an obligation for the decision maker to consider those submissions).
These contentions were based on the propositions that (i) the VRR Scheme gave rise to an implicit right to an opportunity to make representations which would be potentially relevant to the decision; (ii) common law procedural fairness required such a right to exist as a decision not to prosecute would be adverse to the Claimant and that she had something of relevance to say; and (iii) a legitimate expectation was created by the email of 5 July 2019 that her representations would be considered and that a decision would not be reached until 27 September 2019.
The DPP submitted that the VRR Scheme confers a right to request a review, but the Guidance does not point to a right to influence the outcome of that review, as that would undermine the independence of Prosecutors. Relying on R(S) v The CPS, it was contended that the VRR Scheme is merely a mechanism for reconsidering facts, not for accepting new accounts.
Whilst the DPP accepted that complainants can make new representations, and if made, they would be considered, it was argued that there is no entitlement to this under the Guidance or at common law – particularly as the complainant would already have had an opportunity to give their account to the police. Moreover, no legitimate expectation was formed, as the email relied upon was ambiguous and no more than a statement that the Claimant was at liberty to make representations.
The Court found that the Guidance does provide for a right of a fair opportunity to make representations and for them to be taken into account by the decision maker – . However, this right falls short of any obligation on the DPP to invite such submissions .
The Court however indicated that where urgency is not an issue, a complainant’s request for time, a week or two, to submit representations would be “sympathetically considered” – .
As to the decision specifically relating to the Claimant, the Court found that the email of 5 July 2019 indicated that she would have until 27 September 2019 to make representations – . As such, they went on to find that there was a failure of due process when the decision was taken without having waited for the Claimant’s representations – .
Thus, the Court granted the application for judicial review, quashed the decision of 9 August 2019 not to prosecute T, and gave the Claimant 21 days from date of the hand down of the judgment to submit to the CPS her reasons in support of the review sought – . After this, a fresh decision is to be taken by a member of the ARU that was not previously involved with the case.
This case may come as a comfort to those disappointed by the recent High Court decision that dismissed a challenge by the End Violence Against Women’s Coalition in regard to the falling numbers of rape cases being prosecuted.
It is clear that where an individual gives reasons with their request for an appeal, those reasons should be considered as part of the review. Yet, it is possible for due process principles to require a fair opportunity to make representations, even outside the scope of the provision by the Guidance. As such, several questions have arisen that remain unanswered.
The judgment raises the question of what conduct or actions can give rise to due process applying, and whether and in what circumstances such conduct would form a legitimate expectation. It is also not entirely clear how much time a complainant ought to have in order to have a fair opportunity to make their representations.
In this case, the ARU acquiesced to an extension and for representations to come in later. However, what of those complainants who request time but are refused – will their fair opportunity to make submissions have been breached?
The last issue is one effectively raised by the DPP. What of the rights of suspects? In the aforementioned R(S), suspects were prevented from being able to make any representations to a reviewing prosecutor, as they had the opportunity to do so earlier, as does a complainant. However, is there now an imbalance between complainants and suspects in their input level into a case before it reaches a reviewing prosecutor?
Given the response to Killick in 2013, there can be some optimism over an updated Guidance to resolve some of these issues.
Alice Kuzmenko is a pupil barrister at 1 Crown Office Row.