Written 7th August 2012 by Olliers Solicitors

Many people in the European Union (EU) fall victim to crime every year with around 30 million crimes being reported to the police each year (excluding minor offences). The EU therefore acts to protect victims from further victimisation, ensuring victims are recognised and treated with respect and dignity whilst receiving the right support and access to justice.

Article 10 of the EU Directive provides “member states shall ensure that victims have the right to have any decision not to prosecute reviewed”.

Crown Prosecution Service

The Crown Prosecution Service (CPS) is the independent public authority responsible for prosecuting people in England and Wales who have been charged by the police with a criminal offence. The CPS will advise the police on cases for possible prosecution, review cases submitted by the police, consider alternatives to possible prosecution in certain cases and determine the charge where there is a decision to prosecute, they also prepare and present cases at court. The CPS acts in the interests of the public and Keri Starmer QC Director of Public Prosecutions (DPP) stated “decisions made by the public prosecutors must be fair”.

In deciding whether to prosecute two tests must be applied:

  • The evidential test – The prosecutor must decide whether there is enough evidence against the defendant for a realistic prospect of conviction.
  • The public interest test – If it is decided by the prosecutor that there is a realistic chance of conviction they must consider whether it is in the public interest to prosecute the defendant.

The original position of the CPS was that people should be able to rely on decisions taken by themselves and suspects should not have to live in constant fear of being re-arrested. If a suspect is told that a charge will not go ahead, then they should be able to rely on the fact that the case has been discontinued.

However, there are special reasons why the prosecution service will overturn an original decision not to prosecute:

  • where a new look at the original decision shows that it was wrong and in order to maintain confidence in the criminal justice system, a prosecution should be brought
  • where cases are stopped due to lack of evidence but then later evidence is discovered
  • cases which are stopped so that more evidence can be collected in the future; in the meantime the defendant is told that the case may proceed against him in the future
  • cases involving death in which a review following the findings of an inquest concludes that a prosecution should be brought against the defendant despite an earlier decision not to prosecute


For many years prosecutors were reluctant to reopen decisions not to prosecute and so victims would find it difficult to get prosecutors to reconsider their decision. However, in light of a Court of Appeal ruling, an announcement has been made by the Director of Public Prosecutions (DPP) Keir Starmer that the Crown Prosecution Service is going to change its approach in allowing crime victims to make an appeal if it is decided no one will be charged.

It concerned the case of R v Killick (Christopher) [2010] EWCA Crim 1608 in which a man was convicted and jailed for three-and-a-half-years for non-consensual buggery and sexual assault after the CPS reversed its decision in 2007 not to prosecute after numerous complaints and threats of judicial review. Mr Killicks appeal against conviction was dismissed by the Court of Appeal.

The significance of the Killick case is that the Court of Appeal identified and gave effect to a victim’s right to seek a review of a decision not to prosecute. It was decided that although the original decision not to prosecute was not unreasonable it was wrong and there was a realistic prospect of a conviction which was in the public interest.

The court of appeal stated “as a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek review of such a decision”, Keir Starmer QC states that reviews should be available to all victims which is in line with article 10 of the European Directive.

Last year the CPS made almost 88,000 decisions not to prosecute, what effect will the new approach have on this figure in the future? It appears if cases can be revisited and overturned, the courts will be faced with a huge influx of cases. It could be asked, how are victims to apply to have their cases reconsidered or will there be a system or application process? All this remains to be seen.

So, to charge or not to charge: that is the question. On the one hand, the right to appeal against a ‘no charge’ gives the victim the opportunity to seek judicial outcome. On the other hand, the defendant loses the certainty and reliability of process and can be subject to proceedings twice.

Saskia Abbot

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