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

A complainant requesting an independent review under the Victims’ Right to Review Scheme must be given a fair opportunity to make representations and have relevant matters taken into account. The Scheme does not impose a duty on the DPP to invite representations, nor does it confer a right to delay the review while detailed submissions are prepared. Any reasonable request for a short extension may be considered, having regard to the Scheme’s time limits and the rights of suspects. Where the CPS clearly conveys that representations will be awaited before a decision is made, taking the decision prematurely is a failure of due process. The appropriate remedy is to quash the decision and require a fresh review by an uninvolved prosecutor.

The claimant challenged the DPP’s decision, following a review under the Victims’ Right to Review Scheme, not to prosecute a suspect for alleged sexual offences. She argued that the Scheme, common law procedural fairness and a legitimate expectation arising from a CPS email entitled her to make representations before the review decision was taken.

The DPP maintained that the Scheme gave only a right to request review, not an entitlement to make representations or delay the process. During the hearing, however, the DPP accepted that the claimant could submit representations within 21 days and that the case would then be reviewed. The central issues were the scope of the right to make representations and the effect of the CPS email promising an opportunity to provide them.

1. The claim for judicial review was allowed. The DPP’s decision of 9 August 2019 was quashed.

2. The Victims’ Right to Review Scheme gives a complainant a fair opportunity to make representations and to have them taken into account. Paragraph 42 of the Guidance, which requires issues raised by a complainant to be addressed in the decision letter where appropriate, satisfied the requirements of procedural fairness identified in R v Killick [2012] 1 Cr Ap R 10 and the authorities on fair procedure, including R v SSHD ex p Doody [1994] 1 AC 531.

3. The Scheme does not require the DPP positively to invite representations. It also does not give a complainant an entitlement to hold up the review for a significant period to consult lawyers or formulate an appeal-style case. A short request for further time may be considered sympathetically, particularly if made well before the Scheme’s time limit, but suspects’ rights and the need to avoid further delay remain relevant.

4. The CPS email of 5 July 2019 conveyed to the claimant and her father that they would have until 27 September 2019 to make representations before the review decision was taken. The decision made on 9 August 2019 without awaiting those representations was therefore a simple failure of due process.

5. The court declined to determine the merits of the review afresh. The claimant was permitted to submit representations within 21 days, after which a fresh decision was to be taken by a member of the Appeals and Review Unit who had not previously been involved.