Martin Partington: Spotlight on the Justice System

An interesting item on the BBC Today programme the other day concerned the decision by the Director of Public Prosecutions – as head of the Crown Prosecution Service – to give greater opportunity to the victims of crime to ask for a review of any decision by the CPS not to take a prosecution forward.

As readers of the book will know, a decision to prosecute is taken by the application of the two stage ‘full code’ test set out in the Crown Prosecutors Code: the evidential stage; and the public interest stage. Around 80,000 cases a year which have been referred to the CPS are not proceeded with.

Until relatively recently, it was thought that if the CPS decided not to prosecute and told the prospective defendant of their decision, that was the end of the matter. But case law developments have indicated that senior judges think that it should be possible for a person affected by such a decision should be able to seek a review of that decision. The DPP agrees.

I thought I would try to find out a little more about this. It was not as straightforward as I anticipated. The idea of allowing easier review was set out by the DPP, not in a CPS consultation paper, but in a lecture delivered earlier this year, which has just been published in the Criminal Law Review.

Under the title ‘Finality in criminal justice: when should the CPS reopen a case?’ Keir Starmer develops an interesting argument that not all decisions can or should be final – even where this may leave an alleged criminal defendant not quite knowing whether he/she is out of the wood. (See 2012, Crim. L.R. 526)

With this as the starting point, I turned to the CPS Code for Crown Prosecutors to see if the policy outlined by the DPP was reflected there. Despite the fact that the CPS has just published a draft revised code – due to come into effect later this year/early next year – there was no specific reference to the new policy.

An email to me from the CPS suggested that there would be a separate Guidance Note on the implementation of the new policy in due course.

It is not going to be the case that all 80,000 cases will automatically reviewed. But it seems that there will be a procedure for those who think an incorrect decision has been taken to ask for a review. It seems to me that this is potentially quite an important change in prosecutions practice and procedure.

To read the new draft code (the consultation runs till 12 October 2012) go to http://www.cps.gov.uk/consultations/code_2012_consultation_index.html