The English Divisional Court has held that the decision of the Director for Public Prosecutions (DPP) not to prosecute an allegation of rape may be materially flawed where the complainant has not been afforded the opportunity to make representations under the Victims’ Right to Review Scheme (VRR Scheme).
On 9 August 2019, the Crown Prosecution Service Appeals and Review Unit (CPS) failed to pursue the prosecution of an alleged sexual offender, T. The complainant submitted that she was raped and sexually assaulted by T at a house party. She claimed that T knew she was underage and was heavily intoxicated, and could not have reasonably believed she had consented to sexual intercourse. T denied rape.
The complainant made a VRR Scheme review request after several CPS decisions not to prosecute on 12 June 2019. A pause was requested while she sought legal advice. A manager from the CPS wrote that they would deliver a decision on the 27 September 2019 pending her representations to prosecute or not. However, a decision not to prosecute was reached on 9 August 2019, before the complainant made her representations.
The complainant submitted that this decision denied her a fair opportunity to make representations to the decision maker and to have her views considered as provided for in the VRR Scheme. The complainant also submitted that the email sent by the manager from the CPS Appeals and Review Unit created a legitimate expectation that a decision to prosecute would not be given until 27 September 2019.
The DPP contended that the VRR Scheme confered a right to request a review, but the accompanying Guidance did not point to a right to influence the outcome of that review. It put forward that it was a means of reconsidering the facts, not for presenting a new narrative. The DPP denied a legitimate expectation had been formed as the email relied upon was ambiguous and only suggested that the complainant had the ability to make representations if she chose to do so.
The Court agreed with the complainant that a right to fair opportunity to make representations and to have them taken into account was contained in the Guidance, however it did not place an obligation on the DPP to invite submissions. Nevertheless, the Court ruled that the email written by the manager of CPS Appeals and Review Unit created a legitimate expectation that the complainant would have until 27 September to make representations. Thus, the decision not to prosecute reached on the 9 August 2019 was a failure of due process as the CPS had not given ample time to the complainant to make representations.
The decision not to prosecute T was quashed and the court awarded the complainant 21 days to submit to the CPS her reasons in support of the review sought. The CPS is to consider her submission afresh and by a party who was not already involved in the previous decision-making process.
Click here for the decision in R(FNM) v DPP.