Victims' Right to Review: report, Complaints Handling and Feedback: follow-up

VRR Policy, Processes and Procedures

The Lord Advocate's Rules

1. The process and procedural rules for reviewing a decision of a prosecutor ^[7] not to prosecute a person for an alleged offence, on the request of a victim, are set out in the Lord Advocate's Rules: Review of a Decision not to prosecute. ^[8] (The rules)

2. The rules exclude some decisions including those made by the court to end proceedings; any offer of a direct measure, including a Fiscal Fine ^[9] or warning letter; ^[10] or to accept a plea. ^[11]

Role of Response and Information Unit ( RIU)

3. The RIU in COPFS handles all VRRs. RIU is part of the Policy and Engagement Division. The Head of Policy and Engagement is responsible for the strategic oversight and efficient running of the Unit. The Unit is run on a day to day basis by a senior legal manager who oversees a team of three members of legal staff and a six person administrative team. The team is based in various locations with a central unit in Edinburgh. In addition to VRR applications, RIU deals with all complaints, Ministerial correspondence, ^[12] and Freedom of Information and data subject access requests.

Applications

4. Victims can submit an application for a VRR in a variety of ways; by an online form accessible on the COPFS website, email or written correspondence.

5. An application for a review should be submitted as quickly as possible and normally within one month of the date a victim learns of the decision. While COPFS will accept applications submitted after a month, any delay may impact on the action that can be taken by COPFS.

What Happens in a Review?

6. On receipt of a VRR, it is recorded on the COPFS RIU management system. An acknowledgement is sent via an automated email or within three days by letter, depending on how the VRR was received. Each VRR is allocated by the senior legal manager to a member of the RIU team to investigate, review and prepare a draft response.

7. The reviews are undertaken by an independent prosecutor who was not involved in the original decision. If the original decision was taken by Crown Counsel, the review will be carried out by another member of Crown Counsel who will prepare a report for RIU detailing their decision and a member of RIU will advise the victim of the outcome. In all other cases the review is undertaken by a prosecutor in RIU. All responses are approved by the senior legal manager.

8. The reviewer will consider the information available to the person who made the original decision, the reasons for the decision, information provided in the application and whether any further information is required from the police or other agencies and decide whether the original decision should be upheld or overturned.

Remedies/Outcomes

9. Following a review the reviewer may decide to:

• Uphold the original decision.
• Overturn the original decision and, if prosecution is an option, RIU will advise the appropriate office to commence/re-commence court proceedings.
• If the decision is overturned and it is not possible to prosecute then an explanation will be provided and, if appropriate, an apology.

Test Applied to Reviews

10. The Lord Advocate's rules provide that the reviewer will consider if the decision not to prosecute the case was reasonable having regard to all the circumstances, the Prosecution Code, applicable law and prosecution policies.

Reasonableness Test

11. The reasonableness test ^[13] requires the reviewer to consider:

• Whether in making the decision, the prosecutor took into account factors that ought not to have been taken into account;
• Whether the prosecutor failed or refused to take into account factors that ought to have been taken into account; or
• The decision was so unreasonable that no reasonable prosecutor would have made it.

Other UK Jurisdictions

12. The Crown Prosecution Service ( CPS) in England and Wales and the Public Prosecution Service in Northern Ireland ( PPSNI) also operate VRR schemes. ^[14]

13. While it is useful to compare and contrast the various schemes, differences in the respective legal systems, such as the requirement for corroboration ^[15] in Scotland and the different time limits ^[16] that apply in the different jurisdictions, may influence the procedures and approach taken to dealing with reviews.

14. One difference is the legal approach applied to VRRs in England and Wales and Northern Ireland. The CPS approach is to consider the case afresh to determine whether the original decision was right or wrong having regard to the Full Code Test, as detailed in the Code for Crown Prosecutors. ^[17]

15. The PPSNI approach depends on whether new evidence or information is provided by the victim. In such cases, the review will be carried out by the prosecutor who made the original decision taking account of the new information. If the prosecutor decides the test is now met, then a prosecution or a diversionary disposal can be instructed. ^[18] If the prosecutor remains of the view that the test for prosecution is not met then the case is referred to another, generally more senior, prosecutor to consider the case afresh. In all other cases, the reviewing prosecutor will consider the case afresh, applying the test for prosecution, and make a new decision.

Case Review Sample

16. COPFS received 140 VRR applications between April and November 2017. ^[19] We examined a significant sample of 55 cases – in two there were two victims who submitted a VRR – resulting in 57 VRR applications in total. ^[20] In 82% (47) the decision was upheld; in 18% (10), the decision was overturned.

• Of the 57 applications, 25 related to solemn proceedings, 28 to summary proceedings, 2 concerned allegations of criminality by the police and 2 were associated with death investigations.
• 46 concerned no action decisions and 11 related to decisions to discontinue proceedings.
• The ten cases where the decision was overturned encompassed a wide range of offences including serious sexual crimes, assaults, frauds, theft, road traffic and dangerous dogs' contraventions. Five concerned offences that would be prosecuted by summary proceedings and five were more serious offences that would normally be prosecuted by solemn proceedings.

17. The chart below provides a breakdown of all VRRs in our sample by offence type.

Application of the Reasonableness Test

18. We heard mixed accounts from reviewers on how they approach reviews, with some indicating that they consider the case afresh and others advising that they apply the reasonableness test. There were also different approaches to recording the reasons for decisions with some completing a template form for VRRs and others setting out their reasoning in emails. The former provided a more comprehensive record.

19. Whatever the approach, all advised that they took account of the information available to the initial decision maker and any new information arising from any further inquiries or provided by the applicant.

Case Review

20. We examined each review to assess the approach taken. Without speaking to each reviewer, to definitely determine the thought process applied to each review, our assessment was based on the discussion recorded, the reasons noted for the decision and the language used in the reply to applicants.

Upheld cases

21. In the 47 applications where the original decision was upheld, we assessed that there were three broad categories of decision-making.

• The reviewer upheld the decision on the basis that the initial assessment of sufficiency was correct in 28 applications;
• The reviewer characterised the decision as reasonable on the basis that they agreed with the assessment of sufficiency in nine applications;
• The reviewer agreed with the assessment of sufficiency, then considered whether the decision was in the public interest ^[21] and concluded that the decision was reasonable in 10 applications.

Overturned cases

22. Of the 10 cases where the decision was overturned we assessed.

• The reviewer overturned the initial decision on the basis that the assessment of sufficiency was incorrect in five applications;
• In one, the reviewer concluded that the original decision was reasonable but taking account of new information, the reviewer determined that there was now sufficient evidence and overturned the decision.
• In one, the reviewer concluded that the original assessment of the evidence was flawed as it had misapplied the law and therefore the decision was unreasonable.
• The reviewer agreed with the assessment of sufficiency, then considered whether the decision was in the public interest and concluded the decision was unreasonable in three applications. In two, the decision to discontinue proceedings was based on erroneous information, and in the remaining case the decision was overturned due to new information regarding the seriousness of the injury sustained by the applicant.

23. The finding of different approaches being taken accords with what we were told by the reviewers.

Key Finding

Different approaches were applied by those undertaking the reviews.

24. Of note, there were no cases where the initial decision maker and reviewer disagreed on the assessment of sufficiency and the reviewer subsequently upheld the decision on the basis that it was reasonable.

25. We are aware that, as part of a wider review of VRR policies and procedures, COPFS is currently considering whether the reasonableness test should continue to be the approach taken by reviewers.

26. Whatever test is applied, to achieve a consistent approach, guidance on the review process, including the factors to be considered and the legal test, should be provided to all those involved in conducting reviews.

27. The factors considered and the reasoning for the initial decision and the outcome of the review should be recorded in a consistent and standardised manner.

28. To retain public confidence, all reviews must be thorough providing a fully reasoned decision, setting out the evidence/information and law taken into account and the conclusions drawn.

Recommendations 1 and 2

COPFS should provide guidance on the factors to be considered and the approach to be taken to conducting VRRs – it should be supplemented by workshop training for the core participants involved in such reviews.

COPFS should ensure that the factors taken into account and the reasons for the initial decision and the outcome of the review are recorded in a consistent and standardised manner.