AC, R (On the Application Of) v The Director of Public Prosecutions

Article 11 of the Victims’ Directive does not require an unfettered review of every decision not to prosecute. The right operates according to the victim’s role in the relevant criminal justice system, with procedural rules determined by national law. The Directive is a flexible minimum-standards scheme. Its use of terms such as right, shall and may does not create an absolute class of rights. A review scheme may exclude cases where proceedings against another suspect continue and may retain an exceptional discretion. Complexity, joint-trial considerations, resource pressures and risks to the administration of justice can justify that structure.

The appellant challenged the Crown Prosecution Service’s Victim Right to Review scheme after it declined to include a decision not to charge one suspect while proceedings against another suspect continued. She argued that Article 11 of the Directive 2012/29/EU, the common law and the scheme’s underlying purpose required a review. Alternatively, she argued that the exclusions were unlawful as disproportionate and irrational. The Divisional Court dismissed the judicial review claim in [2016] EWHC 2447 (Admin). The central issue on appeal was whether the Directive or common law required a review in those circumstances.

Appeal dismissed. The Court of Appeal upheld the Divisional Court’s conclusion that the Victim Right to Review scheme was lawful and that no specific entitlement to review arose in the circumstances.

1. Article 11. Article 11 of the Victims’ Directive was to be read as part of a single, flexible minimum-standards scheme. Its reference to the victim’s role in the relevant criminal justice system, and its provision for procedural rules under national law, did not confer a right to review every decision not to prosecute. Member States could define the scope of the review right and provide discretion not to review particular cases or categories of case.
2. Language and structure. The use of right in headings and text, and the use of shall and may, did not establish a hierarchy between absolute and weaker rights. Article 10 illustrated that rights under the Directive remained subject to national procedural rules. The Directive’s minimum character was reinforced by Recital 11. Reasons or an apology were functions of the domestic review scheme, not requirements derived from Article 6.
3. Common law authorities. R v Killick [2011] EWCA Civ 1608 and R(L) v DPP [2013] EWHC 1752 did not determine the issue whether review was required when one suspect was charged and another was not. They therefore added nothing to the appellant’s argument.
4. Lawfulness of the exclusions. Charging decisions may arise in complex, time-sensitive cases involving multiple suspects, joint trials, extensive evidence and continuing prosecutions. Requiring the process to pause while another prosecutor reviewed the position could create serious risks to the administration of justice. Those considerations provided a rational and proportionate foundation for excluding cases in which related proceedings continued.

Lady Justice Rafferty gave the judgment, with Lord Justice Kitchin and Mr Justice Birss agreeing.

• Court of Appeal (Civil Division): The appeal was dismissed, upholding the Divisional Court’s order.
• High Court, Divisional Court: The judicial review claim was dismissed on 11 October 2016. The court held that the Victim Right to Review scheme was lawful and that the Directive and common law did not require review in every case: [2016] EWHC 2447 (Admin).