Hayes, R (On the Application Of) v Hayes

A victim has a common-law right to request review of a Crown Prosecution Service decision not to prosecute. That right is not unlimited and does not require every review to occur before proceedings end. A policy under which a review of a decision to offer no evidence takes place only after the proceedings have concluded may lawfully restrict the timing of review. The restriction is justified where an earlier review would cause serious delay, resource pressures and prejudice to the accused, and would impair prosecutorial independence and operational effectiveness. The review remains effective even though its remedy may be limited to an explanation and apology. Such a policy does not unlawfully fetter prosecutorial discretion.

The claimant brought a private prosecution against the interested party for attempting to pervert the course of justice and using a false instrument. The Crown Prosecution Service took over the prosecution and decided to offer no evidence. The claimant promptly requested a review under the Victims’ Right to Review Guidance, but the CPS stated that the review could be conducted only after the criminal proceedings had ended.

The claimant sought judicial review, arguing that the CPS had adopted an unlawful inflexible policy which deprived him of an effective review. The central issues were whether the Guidance, or its operation, restricted review in that way and, if so, whether the restriction was unlawful.

1. The claim was dismissed. The court held that a victim has a common-law right to seek review of a decision not to prosecute, corresponding in essence to the right guaranteed by Article 11 of Directive 2012/29/EU. The Directive leaves procedural matters to national law. Neither R v Killick nor Chaudhry required an all-embracing right to review in every circumstance.
2. The CPS operated paragraph 9(iii) of the Victims’ Right to Review Guidance as an inflexible policy in cases where it decided to offer no evidence. The review could not be requested until that step had occurred, so the victim’s representations could not affect whether the prosecution continued.
3. That restriction was nevertheless lawful. A post-termination review could still provide an effective remedy through an admission of error and apology. The CPS also remained under a duty to keep prosecutions under review, and a judge could require a further review.
4. The restriction was necessary and proportionate. Requiring review before proceedings ended would create serious delay, particularly in complex cases or where the decision was taken shortly before or during trial. It would impose materially greater demands on finite resources and would conflict with the accused’s interest in prompt termination and the importance of prosecutorial independence.
5. The policy did not unlawfully fetter discretion under the principle stated in British Oxygen Company Limited v Minister of Technology. The case was distinguished from R (Robson) v CPS, where guidance excluded a conditional caution in every domestic-violence case. The present policy limited timing, rather than excluding the right of review.
6. The court added that the Guidance and notification letters risked raising false expectations. The CPS was invited to consider explaining more clearly that proceedings might end before a review in paragraph 9(iii) cases.