Many victims are unclear on what happens during a criminal case against their trafficker. Here we outline the process and set out guidance for challenging decisions made by the police or CPS.
The Victims Right to review (VRR) scheme enables victims of crime to seek a review of certain decisions made by the police or Crown Prosecution Service (CPS) not to start or to stop a prosecution.
The CPS scheme is not available for decisions made before 5 June 2013. The police scheme will not apply to decisions before 1 April 2015.
There is separate guidance on the operation of VRR for the police and for the CPS. Importantly, each police force has its own guidance/policy. The force may have a link to their policy on their website. If not, it will need to be specifically requested from them.
Where you are supporting a victim who wishes to challenge a police / CPS decision (particularly in complex trafficking and modern slavery matters), free legal advice and assistance under the Legal Aid Agency’s Legal Help Scheme (subject to financial eligibility) is available. There are many specialist advisors and, depending on the nature and complexity of the matter, you may wish to make a referral via our portal.
There is specific terminology used by the CPS and police within the context of the VRR. In summary:
- Victim’ is used to describe a person against whom an offence has been committed, or the complainant in a case being considered or prosecuted by the CPS
- ‘Suspect’ is used to describe a person who is under consideration as the subject of formal criminal proceedings
- ‘Defendant’ is used to describe a person who has been charged or summonsed
- ‘Offender’ is used to describe a person who has admitted guilt as to the commission of an offence, or who has been found guilty in a court of law.
The above terminology has been adopted in this document.
Reporting, recording and investigation of a crime
Victims of crime have a right to have the details of the crime(s) they have reported to the police to be recorded by them. If it is not automatically provided, the victim (or you on their behalf and with consent) should ask the police for a crime reference number and details of how the crime has been recorded.
The police will decide whether to start an investigation. Depending on the crime, investigations may be short or may take a long time.
You should ask for contact details of the officer investigating the case. It is reasonable to expect to receive information about the police investigation as it passes through key stages. Although victims will not be given details of evidence that is collected, they should still be kept ‘in the loop’ with key information, such as when the suspect is arrested.
It is important to remember that victims in the English criminal legal system do not have their own lawyer, or the right to be represented during proceedings. They are a ‘witness for the crown’. Victims may be asked to provide a statement and attend court to give evidence, but their involvement does not go beyond this. The decisions to investigate and charge lie with the police and the CPS.
When the investigation has been completed, the police may:
- Make a charging decision
- Refer the case to the CPS for advice
- Refer the case to the CPS, for the CPS to make a charging decision.
Police make a charging decision:
Usually the police will make the charging decision for ‘summary’ only offences. Such offences can only be tried in the Magistrates court; so they tend to be ‘less serious’ offences. They will decide whether the suspect should be:
- Released without charge
- Released under investigation
- Released on bail
- Given a caution, reprimand, final warning or penalty notice.
Police refer the case to the CPS for advice:
The CPS may advise:
- On whether there is sufficient evidence for a charge and if so, what offence can be charged
- That the case can’t be progressed further
- That further investigations are needed
Police refer the case to the CPS, for the CPS to make a charging decision:
‘Either-way’1 and ‘indictable only’2 offences can only be charged by the CPS so the police must refer the case where the Full Code Test3 is met. Following referral the CPS will make the decision.
Irrespective of whether the charging decision is made by the police or the CPS, the victim should be notified of the decision within five days; or with more serious crimes, within one day. The victim should be given sufficient information to understand the decision and they should be told whether they have a right to review the decision and how to request a review.
There is no requirement for the decision to be communicated to the victim in writing but, if the victim does not understand the decision when it is communicated, they can ask for a clearer explanation. It is reasonable for victims to ask for the decision to be set out in writing (if it has not already been done so) where they would find that helpful.
Where the victim is not happy with the decision, they may have a right to request a review under the VRR.
Before embarking on a review, be sure to be clear on what decision was made and the reasons for the decision. If you are unsure, you should ask for the information in writing. You can also seek an explanation or clarification if you do not understand the decision. You will not be able to see documents or evidence from the police investigation as this could taint the prosecution, but victims should still be given enough information to be able to understand the decision.
Where you are supporting a victim through the above process, you may need to advocate on their behalf by contacting the officer in the case for them and requesting the information.
Not all decisions will qualify for consideration under the VRR. In particular:
- VRR relates specifically to decisions not to prosecute; so decisions not to record a crime or not to continue with enquiries will fall outside VRR. In this kind of situation the victim may wish to consider making a police complaint.
- VRR will only apply to cases where a suspect has been identified and interviewed (arrest or voluntary interview). If the suspect could not be identified so the case was filed at ‘source’ the victim will not be able to use VRR.
- VRR is not available where the victim is unhappy that the number of people charged or the nature of the charge is different from the crime reported.
- VRR is not available if the case was concluded by an out of court disposal; for example a police caution was given.
- VRR is not available where a victim retracts a complaint or otherwise no longer co-operates with a police investigation and these actions lead to a decision not to charge.
Time-limits to request a VRR
The ACPO Guidance (to which Forces should have referred to when setting up their local scheme), stipulates:
‘8.2 Victims should be allowed to request a review within 3 months of being notified of the case being filed, as this is the period during which they can request a judicial review. Requests made after this period should be dealt with at the force’s discretion …’
The CPS Guidance says:
‘30. A request for a review should ordinarily be made within 10 working days of the date of the decision letter. Requests may be submitted after 10 working days, although a delay may impact negatively on the outcome of the decision making process. Furthermore, requests made more than three months after the qualifying decision was communicated are unlikely to be accepted unless there are exceptional circumstances. While not an exhaustive list, exceptional circumstances may include when a victim has not been notified of their right to review, or has been given incorrect information about the timeframes’
Accordingly, in receiving notification that there will be ‘no further action’ (NFA) you may be advised that you only have 10 working days to submit a VRR request.
There may be practical reasons why you are not in a position to submit a request within that time-frame. You should aim to only submit the review when you have all your representations ready.
It often takes more than 10 working days to have properly considered the reasons for the decision and to have spoken with the victim to obtain their views before drafting a request. As long as you can explain the reason for the delay, good arguments can be made for the VRR to be considered outside of 10 working days, especially if it is submitted within a three month time-frame.
If more than three months have passed, it will be necessary to demonstrate exceptional reasons for the VRR to be considered. These may include where a victim was never notified of their rights under the VRR until after the three month period had already expired. Exceptional reasons for delay should focus on the victim; for example their health, and if possible, should be supported with evidence.
There is no separate or specific guidance with regards to the application of the 10 day time limit and the CPS use of discretion when requesting a second ‘independent review’ (see below). Where you will not be in a position to submit a second stage review within 10 working days, before the 10 days expire, you should try and seek the agreement of the CPS for more time.
What do I include in my VRR?
There is no set format for a VRR and what you include will depend on the particular facts and the decision you wish to review.
It is important to focus your submission on the reasons given for the NFA decision and to address those directly. Representations given in the VRR are potentially disclosable in criminal proceedings so it is best to avoid re-stating the victim’s account. If setting out the facts is necessary, refer to the victim’s interview or earlier statement. Submissions that refer to what the victim might say in evidence can also lead to allegations of coaching so should be avoided.
You can include submissions that refer to lines of enquiry that you think have been missed; such a failure to secure or view relevant CCTV footage, or a failure to speak to witnesses.
How will the VRR be dealt with?
This will depend on whether you are reviewing a police or CPS decision.
A VRR submitted to the police will be considered by another officer (of equivalent or higher rank) within the same force but who has had no involvement in the original investigation.
Depending on the nature of the case and local force policy, how the review decision is communicated will vary. It is reasonable for you to ask for the decision to be confirmed in writing.
There are no national guidelines that set a timeframe for a police response, though some local forces may have included these details within their own policy.
Where the decision not to charge is maintained, there is no secondary review or appeal stage.
The CPS VRR scheme has two stages of review:
- A local resolution stage where reviews are conducted by a new prosecutor at the same local office, who was not involved with the original decision
- Where the decision not to prosecute is upheld, it may be possible to request an independent review which will be carried out either by the Independent Review Unit or specified senior prosecutors.
It is not necessary to go through both stages of the review process. For example, if the decision not to prosecute is upheld after the first stage but you consider that the reasons given are satisfactory, you can choose not to request an independent review.
The decision should be notified in writing including details (after the first stage) of how to request an independent review.
The initial decision in response to the local resolution should be communicated within 10 working days of receiving the VRR. The response to a second stage independent review, should be completed within 20 working days of the request for the review and communicated within 30 working days. In complex cases the CPS may respond to a request for the review setting out that more time is needed. In this situation, you should be notified and given updates every 20 days.
Challenging a VRR outcome
The only potential avenue to challenge a decision, once VRR is exhausted, is by judicial review. We suggest seeking specialist legal advice.
The failure to investigate criminal offences of trafficking and modern slavery may give rise to a breach of Article 4 of the European Convention on Human Right. Time limits for bringing a claim will not be extended simply because the victim was asserting a right to review. It is wise to seek legal advice early.
Links to guidance on the scheme, the applicable framework and other useful documents:
Information about how to make a complaint about the CPS (this is may be appropriate if you have concerns about the CPS unrelated to the decision not to prosecute / drop a prosecution)
- An either-way offence may be tried in the Magistrates court or the Crown Court
- An indictable offence can only be tried in the Crown Court