Hayes, R (On the Application Of) v Hayes

The claimant Mr Tim Hayes commenced a private prosecution against his former wife, the interested party Mrs Carole Hayes, on charges of (1) doing an act tending and intended to pervert the course of justice and (2) using a false instrument, contrary to section 3 of the Forgery and Counterfeiting Act 1981. Pursuant to the powers of the Director of Public Prosecutions (“DPP”) under section 6(2) of the Prosecution of Offences Act 1985, the Crown Prosecution Service (“CPS”) took over the conduct of that prosecution and decided to offer no evidence against Mrs Hayes. Mr Hayes wished to exercise his right, under the CPS’s Victims’ Right to Review Guidance (“VRRG”) to request a review of that decision. He was told by the CPS that a review would only be carried out after no evidence had been offered against Mrs Hayes, and the prosecution had therefore come to an end. Mr Hayes contends that the stance adopted by the CPS shows an unlawful policy. He accordingly seeks judicial review of the decision by the CPS that it would not review its decision to offer no evidence until after the conclusion of the prosecution of Mrs Hayes.

I am grateful to Mr Hodivala on behalf of Mr Hayes, and to Mr Mably QC on behalf of the CPS, for their helpful written and oral submissions. Mrs Hayes has taken no active part in the proceedings.

The facts giving rise to the private prosecution can be stated very briefly. For many years, Mr and Mrs Hayes have been engaged in civil litigation. In the course of those protracted proceedings, Mr Hayes obtained a judgment in his favour against Mrs Hayes, and sought to enforce that judgment. On 24^th March 2016 the County Court at St Albans made an order (“the order”) requiring Mrs Hayes to attend the court on 11^th July 2016 for questioning about her means and any other information needed to enforce the judgment against her. The order, as issued by the court, was three pages in length. The first page included a penal notice: that is, a formal warning to Mrs Hayes that if she did not obey the order she might be sent to prison for contempt of court. The second page gave details of the categories of information which she would be required to provide to the court. The third page comprised a schedule of additional documents which she was required to disclose. Mr Hayes’ case, supported by the evidence of a process server, was to the effect that a true copy of the order – slightly cropped at the margins by the process of scanning and photocopying, but clearly legible – was duly served upon Mrs Hayes. However, when Mrs Hayes appeared before the County Court on 11^th July 2016, she produced an incomplete copy of the order, comprising only the top part of the first page and omitting both the penal notice and the directions as to what information she must provide. Mrs Hayes informed the court that the document had been served upon her in that form, and submitted that Mr Hayes must have altered the order or in some other way interfered with it so that she had not received a true copy. She repeated those allegations in a witness statement dated 14^th July 2016, which she verified with a statement of truth, and she invited the court to find that Mr Hayes had acted in contempt of court.

Thus there was, and indeed remains, an issue between Mr and Mrs Hayes as to whether it was he or she who was responsible for the creation of the spurious document which Mrs Hayes produced to the court on 11^th July 2016. As I understand it, that issue caused some delay in the County Court, but was not investigated as a possible contempt of court in those proceedings.

On 14^th October 2016 Mr Hayes issued summonses against Mrs Hayes, charging her with the offences referred to above. He acted upon the advice of experienced counsel Mr Hunt, who had been instructed to advise and to conduct the proceedings on Mr Hayes’ behalf. On 16^th October 2016 Mrs Hayes made representations to the CPS, which as I understand it invited the CPS to take over the conduct of the prosecution and to consider whether it should be pursued. The criminal proceedings meanwhile continued to take their course, and on 10^th January 2017 Mrs Hayes made her first appearance before the Crown Court at Southwark. On that date she entered not guilty pleas to both the charges in the indictment, and the case was adjourned for trial on the 7^th August 2017.

On 13^th March 2017 Mr Streeter, a CPS manager, wrote to Mr Hunt. Mr Streeter indicated that he had decided to intervene in the prosecution as he had concluded that there was no realistic prospect of a conviction on either of the two charges against Mrs Hayes. He said that his decision had been taken following a review of the case in accordance with the Code for the Crown Prosecutors. Under that Code, a prosecutor considering whether to prosecute in a particular case must apply the “Full Code Test”, which involves two stages: the prosecutor must first consider whether there is sufficient evidence to provide a realistic prospect of conviction; and if so, must then consider whether a prosecution is required in the public interest.

Mr Streeter explained his reasons for coming to his conclusion that the evidence was not sufficient to pass the first stage of that test, and continued:

“We have written to the court and the Defendant informing them of our decision and we have asked the court to list the case for mention so that we can offer no evidence on the indictment before the court.

Any decision by the CPS does not imply any finding concerning guilt or criminal conduct; the CPS makes decisions only according to the test set out in the Code for Crown Prosecutors and it is applied in all decisions on whether or not to prosecute.

I appreciate that you and your client will be disappointed with the decision that has been reached but I hope this letter assists you in understanding what has happened in this case and how I came to my decision.

If you disagree with my decision you are entitled to seek a review of the decision. However, please note that once this matter is listed and no evidence offered, proceedings will be at an end and the outcome will not be altered once this occurs. If you wish to seek a review, please contact the CPS, within the next 7 days if possible, or within the next 3 months at the latest. Please contact us at [address details given].”

Mr Hunt responded immediately, informing Mr Streeter that he wished the decision to be reviewed, and setting out the grounds for that request. He was informed by Mr Streeter that the CPS would nonetheless proceed to offer no evidence against Mrs Hayes, and would not postpone that step until after the review process had been concluded. Later on 13^th March 2017, Mr Hunt sent a formal Pre-Action Protocol letter to the CPS indicating Mr Hayes’ intention to commence judicial review proceedings.

On the following day, 14^th March 2017, Mr Streeter wrote to Mr Hunt reiterating that the CPS would not be asking the Crown Court to adjourn the listing of the case until after the outcome of the review. It should be noted that a hearing for that purpose was at that time listed for the following day. Mr Streeter said:

“Our position is that the CPS Legal Guidance on Termination of Proceedings is clear and states as follows:

If the prosecutor considers the proceedings should not continue, the case should be terminated at the earliest possible opportunity.

It is our view that there is no legal basis for allowing proceedings to continue against a defendant pending outcome of an appeal under the VRR Scheme.”

It appears that the Crown Court then removed the case from the list administratively, so that the planned hearing did not proceed on 15^th March 2017. On 17^th March Mr Hunt sent a further document to the CPS setting out representations in respect of a review of the CPS’s decision, and enclosing supporting documents. He asked for this material – which included representations in respect of both stages of the Full Code Test - to be put before the independent prosecutor conducting the review. The CPS responded on 29^th March 2017 saying –

“At this stage, we are unable to progress your request as the Crown Court has not listed the case against Mrs Hayes and as a result we have not, as yet, brought proceedings to an end.

The Victims’ Right of Review can only be progressed once proceedings are at an end and as a result we are not able to progress this at this stage.

Once the matter has been dealt with at court, the matter will be progressed under the VRR Scheme. We have contacted the Crown Court at Southwark again today to ask why this matter has not been listed.”

The hearing at which the CPS intended to offer no evidence against Mrs Hayes was subsequently listed for 5^th April 2017, before His Honour Judge McCreath. On 4^th April 2017, Mr Hayes issued his claim for judicial review. He also made an urgent application for an interim injunction prohibiting the CPS from offering no evidence in the criminal prosecution against Mrs Hayes. That urgent application was refused by the out of hours judge.

Also on 4^th April 2017, Mr Wicks, a CPS Specialist Prosecutor, sent an email to the Administrative Court Office in which he submitted that the claim for judicial review was misconceived. He said that the VRR Scheme does not extend to cases where the CPS has decided to offer no evidence in circumstances such as these, and explained the rationale for that restriction on three grounds. I summarise those grounds as follows:

It is convenient to pause at this point in the chronology of events, in order to consider the background to the VRRG and its relevant terms.

Section 32 of the Domestic Violence and Victims Act 2004 required the Secretary of State for Justice to issue a Code of Practice for victims. Section 32(5) of the 2004 Act made clear that such a Code “may not require anything to be done by…(b) a person acting in the discharge of a function of a member of the Crown Prosecution Service which involves the exercise of a discretion”. The CPS duly issued such a Code in October 2005. It provided, amongst other things, that victims should be given reasons when the CPS considered that there was insufficient evidence to prosecute, and should be offered a meeting where a decision not to proceed was made in a sexual case. It did not, however, include any formal system for review.

In R v Killick [2012] 1 Cr App R 10 the appellant had been convicted at trial of a number of sexual offences. He appealed against his conviction on the ground that the trial judge had been wrong to refuse an application to stay the proceedings as an abuse of process. The circumstances were that, after a lengthy investigation into the allegations made by the complainants against the appellant, he had been informed by the police that the CPS had decided that the matter would be discontinued. The complainants had sought a review of the CPS’s decision by making a complaint under the then Code, and a decision was subsequently taken by the CPS that the prosecution should proceed. In those circumstances, the Court of Appeal, Criminal Division was primarily concerned with issues relating to the abuse of process jurisdiction, and in particular with whether the appellant had been given an unequivocal representation that he would not be prosecuted. However, in giving the judgment of the court, Thomas LJ (as he then was) referred to the Code of Practice for Victims of Crime. He noted that the policy set out in the Code is that the public should be entitled to rely on decisions of the CPS, but there may be good reasons to look again at a decision as to whether there should be a prosecution and to conclude that the original decision was wrong. At paras 47 to 49, he said this:

“47.

The CPS, as the independent prosecutor, in our view had to respond to the request made by the complainants for a review of the decision not to prosecute, just as the CPS had done in R v Burke. As we have set out, the request was made as "a complaint", as that is what the procedure of the CPS requires as we have described at paragraphs 23 to 26 above. This procedure applied until April 2010. The new procedure appears still to treat requests for review of a decision not to prosecute as "a complaint" about a "level of service", though as appears from the document to which we referred at paragraph 26, a threat of judicial review brings about a re-review more in the nature of a re-review of the prosecutorial discretion.

48.

Although in form the request was made as "a complaint", what was sought was a reconsideration by an interested person of the decision. Far from the CPS being able to refuse to do this, it was bound to do it. In the first place, the CPS has made clear that it will review decisions (as set out in paragraph 25 above) if a "complaint" is made. Second, it has for some time been established that there is a right by an interested person to seek judicial review of the decision not to prosecute (see R v DPP ex p C [1995] 1 Cr App R 136); it would therefore be disproportionate for a public authority not to have a system of review without recourse to court proceedings. Third, it is clear that in considering whether to prosecute the prosecutor has to take into account the interests of the State, the defendant and the victim – the three interests in a criminal proceeding as identified for example by Lord Woolf CJ in R v B [2003] 2 Cr App R 197 at paragraph 27. As a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek a review of such a decision, particularly as the police have such a right under the charging guidance.

49.

Thus, although it was contended by the Crown that complainants had no right to request a review of a decision not to prosecute in contradistinction to the ability to make "a complaint", we can discern no reason why what these complainants were doing was other than exercising their right to seek a review about the prosecutor's decision. That right under the law and procedure of England and Wales is in essence the same as the right expressed in Article 10 of the draft EU Directive on establishing minimum standards on the rights, support and protection of victims of crime dated 18 May 2011 which provides:

"Member States shall ensure that victims have the right to have any decision not to prosecute reviewed."

See also the Explanatory Memorandum of the Ministry of Justice dated 2 June 2011.”

Thomas LJ added at paragraph 57:

“57.

We would simply observe, given the circumstances of this case, that it must be for the Director to consider whether the way in which the right of a victim to seek a review cannot be made the subject of a clearer procedure and guidance with time limits. As we have explained, the right of a complainant to a review is nothing to do with complaints about the conduct of a level of service provided by the CPS; it is an integral part of the exercise of a prosecutorial discretion and the use of the term complaint has the danger to which we have referred at paragraph 50.”

What was at the time of the decision in Killick a draft directive subsequently became Directive 2012/29/EU of the European Parliament and of the Council (“the Directive”), which was adopted by the United Kingdom in 2012. The Directive requires member states to provide minimum standards of support for victims of crime. It contains a definition of “victim”, but I need not go into the details of that definition: it is common ground that in the circumstances of this case Mr Hayes is a victim.

The Recitals to the Directive include the following:

Article 1 states that the purpose of the Directive is “to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings”. Article 11 (based upon what had been Article 10 in the draft directive referred to in Killick) is in the following terms:

“Rights in the event of a decision not to prosecute

1.

Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.

2.

Where, in accordance with national law, the role of the victim in the relevant criminal justice system will be established only after a decision to prosecute the offender has been taken, Member States shall ensure that at least the victims of serious crimes have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.

3.

Member States shall ensure that victims are notified without unnecessary delay of their right to receive, and that they receive sufficient information to decide whether to request a review of any decision not to prosecute upon request.

4.

Where the decision not to prosecute is taken by the highest prosecuting authority against whose decision no review may be carried out under national law, the review may be carried out by the same authority.

5.

Paragraphs 1, 3 and 4 shall not apply to a decision of the prosecutor not to prosecute, if such a decision results in an out-of-court settlement, in so far as national law makes such provision.”

In order to meet the relevant requirements of the Directive, the CPS has issued a revised Code of Practice for Victims of Crime, which includes an entitlement for a victim to seek a review of a decision by the CPS not to prosecute, in accordance to the CPS’s Victims’ Right to Review Scheme. There is a corresponding provision, under a different Scheme, in relation to a right to review a decision by the police not to prosecute.

The relevant Scheme is contained in the VRRG, which was first issued by the DPP in June 2013 and was subsequently revised in July 2016. Although the title of the document refers to “Guidance”, which perhaps implies that it gives guidance as to the operation of a scheme set out in a different document, it appears that “guidance” and “scheme” are used interchangeably and are intended to have the same meaning. Paragraph 6 of the VRRG indicates that the Scheme gives effect to the principles laid down in Killick and in Article 11 of the Directive. Paragraph 8 states:

“It is important to note that the “right” referred to in the context of the Scheme is the right to request a review of the Code Test decision. It is not a guarantee that proceedings will be (re) commenced.”

Paragraph 9 indicates that the right to request a review arises in four situations in which the CPS makes a “qualifying decision”: namely, where the CPS -

“i.

makes the decision not to bring proceedings (i.e. at the pre-charge stage);

ii.

discontinues (or withdraws in the Magistrates’ Court) or charges the victim, thereby entirely ending all proceedings relating to them;

iii.

offers no evidence in all proceedings relating to the victim; or

iv.

asks the court to leave all charges in the proceedings to “lie on file”.”

Paragraph 11 sets out cases which do not fall within the scope of the VRR, for example where one charge is terminated but another charge relating to the relevant victim continues, or where proceedings are terminated against one defendant but continue against another. A footnote indicates that there may be “very exceptional circumstances in which cases that fall within the exceptions of paragraph 11 may nevertheless be considered for inclusion in the VRR scheme”.

Paragraphs 17 to 21 set out how a victim can exercise the right to review. These paragraphs require that a victim will be notified of a decision not to bring proceedings or to terminate proceedings, and will be notified of his or her eligibility to seek a review under the Scheme if the relevant decision is a qualifying decision. Paragraph 18 further requires that the victim will be given sufficient information to enable him or her to decide whether or not (s)he wishes a review to take place. Paragraphs 19 and 20 state as follows about the action which should be taken by a victim who does wish a review to take place:

“19.

The only action a victim needs to take is to notify the CPS of their request for review. Victims will be provided with contact details of the relevant CPS office in order that can make contact by their preferred means.

20.

A request for a review should ordinarily be made within 5 working days of receipt of the notification of the decision. However, a request can be made up to 3 months after the communication of the decision to the victim (further details regarding time limits are to be found at paragraph 53 to 62).”

Subsequent paragraphs set out a procedure, upon a request for a review being made, for it to be resolved either locally or by an independent review. As to the latter, the VRRG states:

“31.

[An independent] review will comprise a reconsideration of the evidence and the public interest i.e. the new reviewing prosecutor will approach the case afresh to determine whether the original decision was right or wrong.

32.

Where the CPS deems that VRR is available in respect of a qualifying decision made in accordance with our Private Prosecutions policy, because the private prosecutor is a victim who has made an allegation to the police in England and Wales that he/she has directly experienced criminal conduct and has subsequently started a private prosecution in respect of the matter, the independent review will be based upon the material that was provided to the original prosecutor.

Reconsidering a prosecution decision

33.

It is an important principle that people should be able to rely on decision taken by the CPS as being final and that such decisions should not ordinarily be revoked. However, we also recognise that a careful balance must be struck between providing certainty to the public in our decision making and not allowing wrong decisions to stand. It is right therefore, in order to maintain public confidence in the criminal justice system, that the CPS will sometimes have to look again at a prosecution decision, and change it if it is found to be wrong. If a decision is found to be wrong, it may be necessary to commence or re-institute criminal proceedings.

34.

The Victims’ Right to Review Scheme provides a victim with a specifically designed process to exercise the right to review. The reviewer must conduct a re-review of the case afresh, and in order to overturn a decision not to prosecute they must be satisfied:

•

That the earlier decision was wrong in applying the evidential or public interest stages of the Full Code Test (as set out in the Code for Crown Prosecutors); and

•

That for the maintenance of public confidence, the decision must be reversed.

35.

Guidance has been provided for prosecutors to assist in their decision making. The guidance is headed “Reconsidering a Prosecution Decision” and is available via the … CPS website.”

The time scale for an independent review is stated later in the VRRG, at paragraph 60. The CPS will, wherever possible, complete the review and communicate the decision to the victim within an overall timeframe of 6 weeks from receipt of the victim’s request. Provision is made in paragraph 61 for cases where that usual time limit can not be met.

Paragraphs 40 to 52 of the VRRG, headed “Outcome of the review”, indicate that the available remedy will depend on the nature of the qualifying decision:

“44.

In cases where the qualifying decision was “not to charge” then it may be possible to bring proceedings if the original decision is found, on review, to be wrong.

45.

The same applies in cases where the qualifying decision was “to discontinue” and, in some circumstances, “to withdraw” all proceedings.

46.

However, there is usually no such remedy available in cases where the qualifying decision was “to offer no evidence”. This is because such decisions are final, proceedings can not be reinstituted and redress in these circumstances is limited to an explanation and apology. It is important to note that, although the case can not be recommenced, the quality and thoroughness of the review undertaken will be no less than a review undertaken for any other category of case. The important issue being addressed in these cases is whether the original case decision was wrong.

47.

The situation is the same in cases which become statute barred after a qualifying decision has been made but before a review is requested or completed as it is not possible to bring/recommence proceedings in these circumstances. If this occurs the CPS will provide an explanation to the victim and, where it is right to do so, will offer an apology.

48.

Where the CPS has asked the Crown Court to allow all charges in a case to “lie on file” and the court has so ordered, these cases can not be reinstituted without the leave of the Crown Court or the Court of Appeal. In the context of a VRR request, unless a significant change in circumstances has taken place since the order was made, it is highly unlikely that the court will grant leave. Redress is therefore likely to be limited to an explanation and apology where the original decision is found to have been wrong.

49.

Following the conclusion of the VRR process there is no scope for any further review by the CPS and accordingly, if the victim remains dissatisfied with the decision, and/or wishes to challenge it further, then the victim should apply to the High Court for a judicial review.”

It is relevant to note that the differing consequences of the different types of qualifying decisions are also referred to in the CPS’s separate Guidance on Termination of Proceedings, which states that the different methods of termination affect the possible outcomes under the VRR Scheme and adds:

“Accordingly, it is vitally important that prosecutors consider and choose the method of termination with care.”

In L v DPP [2013] EWHC 1752 (Admin) a Divisional Court considered two applications for judicial review of decisions by the CPS not to prosecute. At paragraph 4 of his judgment, Sir John Thomas PQBD (as he then was) emphasised that the grounds upon which such a challenge can be made are very narrow and are limited to the following:

“1.

because there has been some unlawful policy;

2.

because the Director has failed to act in accordance with his own set policy; or

3.

because the decision was perverse, that is to say it is a decision that no reasonable prosecutor could have reached.”

At paragraph 10, Sir John emphasised the importance of the fact that the CPS now has the VRRG in place:

“… It has this consequence. It is highly likely that where a review has taken place, and the review can be seen to be careful and thorough, proceedings for judicial review to challenge the decision will be the more difficult to advance. That is because the CPS will have independently reconsidered the position and, unless it can be shown that the decision is within one of the three categories I have mentioned, it will therefore be the more difficult to show that the decision is one that can be successfully challenged.”

Late in his judgment, Sir John repeated that the likelihood of success of judicial review proceedings, where the right of review has been taken up, will be “very very small, given the constitutional position of the CPS.”

The VRRG, and the decision in L v DPP, were considered by a Divisional Court in R (on the application of Chaudhry) v DPP [2016] EWHC 2447 (Admin). Gross LJ, with whom Nicol J agreed, said at paragraph 21 –

“21.

A number of themes appear from Killick:

i)

Building on the draft version of the Directive, Killick foreshadowed the VRR and prompted its coming into existence.

ii)

The VRR was preferable to leaving a dissatisfied victim with judicial review as the only means of challenging a decision not to prosecute. A necessary corollary is that the VRR must ensure that the right to review is an effective right. That said, Killick says nothing as to the scope of the right to review; on any view, it is not prescriptive in that regard.

iii)

The independence of the prosecutor is emphasised throughout.”

The circumstances in Chaudhry were that the CPS had successfully prosecuted a man for grave offences of child abduction, but had declined to prosecute his sister “FC” (who had also been implicated in the abduction) because it had concluded that there was no realistic prospect of conviction in her case. The victim of the offence (the mother of the abducted children) contended that the FC should have been prosecuted. The CPS took the view that the victim had no right to request a review under the VRRG, because the circumstances came within one of the categories of case which by paragraph 11 do not fall within the scope of the Scheme. The victim then commenced proceedings for judicial review, contending that the CPS had erred in law in its application of the VRRG and/or that the VRRG itself was unlawful and contrary to the Directive and to common law. Thus the focus of the court in that case was on the lawfulness of a provision in the VRRG excluding a particular category of case from the Scheme. That was a different situation from the circumstances of the present case, but the judgment of Gross LJ is nonetheless relevant. At paragraph 44, Gross LJ observed that the submissions on behalf of the claimant victim required a literal approach to both Killick and the Directive, such as to give victims an unqualified right to review a decision of the CPS not to prosecute, notwithstanding the provision in article 11.1 of the Directive that procedural rules are to be determined by national law. At paragraph 45, Gross LJ said:

“45.

For my part, I am unable to accept that a literal approach is warranted, either to Killick or the Directive. As already observed, Killick says nothing as to the scope of the right to review and is not at all prescriptive in that regard; no argument as to the scope of the right to review was before the Court. So too, the Directive is expressed at a high level of generality and needs to be read as such. It cannot conceivably be read as furnishing an unlimited across the board entitlement – and (as already observed) makes provision for variants in national law (for example, the final sentence of Recital (43) and national procedural variants (Art. 11.1)), together with substantive "carve-outs" (Art. 11.5). In passing, procedural variants may well themselves generate substantive consequences. Provided the VRR furnishes an effective right to review, which it plainly does (see para. 9 thereof), different views can be taken on the optimum scope of the scheme – without coming close to establishing that the limitation on scope contained in para. 11(iii) involves an unlawful policy, inconsistent with either Killick or the Directive.”

Gross LJ went on, in paragraph 46, to state a further reason for rejecting the claimant’s submissions in that case:

“46.

Thirdly and most fundamentally, a general right to review all cases where charges were brought against some but not all suspects would both significantly undermine operational prosecutorial discretion and have potentially serious resource implications for the CPS. It is right to increase the involvement of victims in the CJS; it would be unhealthy and wrong to alter in this way the appropriate balance struck between the various interests involved in a prosecution. Further, the consequences of extending the right of review in this fashion on a generalised basis would have grave practical consequences for the efficient operation of the CJS. These consequences are of such a nature as to invite a destructive critique of the starting premise. It is, moreover, unnecessary to take this step provided there is a discretion for the CPS to review cases falling outside the scope of the VRR scheme where an initial decision has been taken not to prosecute.”

Gross LJ went on to elaborate upon that reason, in a number of sub-paragraphs. It is sufficient for me to quote two of them:

“iv)

The limitations on scope contained in para. 11(iii) fall appropriately within the scheme which can be discerned of the VRR as a whole. The essence of the "qualifying decisions" contained in para. 9 is that they result in no prosecution at all. Paras. 11 (i), (ii), (viii) and (ix) contain exclusions for matters which pre-date the VRR, do not reach the CPS, reflect a carve-out in the Directive or are victim-related; these paragraphs do not advance the present argument one way or another. However, paras. 11 (iv) – (vii) and, for that matter para. 11(x) (introduced by the VRR 2016), all involve deferring to and safeguarding the operational judgment and discretion of prosecutors. The broad dividing line in the scheme is thus between cases where there is a decision not to prosecute at all (para. 9) and those where there is a prosecution but operational prosecutorial decisions are taken, limiting the scope of the prosecution (paras. 11(iii) and 11(iv) to (vii)) or, as in para. 11(x), not to pursue litigation further. In this fashion, the VRR, while highlighting the interest and participation of victims, respects the balance that needs to be struck between the three interests in the prosecution, those of the state, the defendant and the victim (Killick, at [48]). Removal of the limitations found in para. 11(iii) would risk disturbing that balance.

…

vii)

If the interests of justice required a generalised expansion of the VRR scheme, then, doubtless, they would enjoy priority over the practical concerns highlighted above. Provided, however, the VRR does not preclude the CPS exercising a discretion in an exceptional case to review a decision not to prosecute even in a case otherwise falling outside the scheme, then "hard cases" can be catered for – and injustice towards a victim, actual or perceived, can be addressed – without the need for generalised expansion of the scheme. As already indicated, such a discretion did exist under the VRR current at the time with which this claim is concerned.”

I now return to the chronology of relevant events. As I have indicated, the criminal proceedings were listed for mention before HHJ McCreath in the Crown Court at Southwark on 5^th April 2017. The learned judge heard submissions about the VRRG. He gave a judgment in which he was critical of the approach taken by the CPS. He acknowledged that there may be circumstances in which it may be necessary for the prosecution to move swiftly to verdict in a case of this kind, for example where a defendant was in custody or was suffering particular harm or distress as a result of delay. He took the view, however, that it would not be rational to adopt a general policy which rendered the review process pointless because it would provide a private prosecutor with no effective remedy if the prosecution, upon review, were to conclude that the original decision not to prosecute was wrong. He therefore expressed his disquiet at the decision of the prosecution. He then turned to the long-established Farquharson guidelines which state, at section 7, that when the prosecution intend to discontinue a case, without inviting the Judge’s view, it is nonetheless open to the Judge to express his dissent and to invite counsel to reconsider the matter with the CPS. The Farquharson guidelines make clear that the final decision will rest with counsel, but say:

“Where a judge expresses a view based on the evidence or public interest the CPS will be obliged to carry out a further review of the case. If the judge is of the view that a serious injustice will result from the course of action he may decline to proceed with the case until counsel has consulted with either the Director of Public Prosecutions or the Attorney General as may be appropriate.”

The learned Judge accepted that the decision whether to pursue the prosecution was for the CPS, and not for him, to make; but he had no doubt that the decision ought to be reviewed. He expressed his understandable and justified disappointment that the CPS had not initially complied with his requirement, pursuant to the Farquharson guidelines, that the decision be reviewed.

The CPS did then review the decision. The evidence of Ms Boland, a CPS Legal manager who was present at the hearing before HHJ McCreath, shows that later that day she advised Mr Wicks and Mr Streeter of the need for a review, but said –

“The review under the case should be a ‘review’ under the Farquharson guidelines only. The reason is that to undertake a VRR review is in breach of our clear policy under the VRR Scheme and in breach of the Code and our Guidance on bringing cases to an end promptly when we decide that the Code test is not met. The judge seemed to want us to make an exception in this case but we have no good reason to do so. There is no merit in this prosecution and in my view, to delay bringing this matter to an end at the behest of an interested party is to disregard the rights of Mrs Hayes. I cannot possibly agree that there is a right to review in this case merely because the suspect is not in custody but deny victims of more serious offences the right to VRR before we offer no evidence.”

Mr Meikle, who holds a senior position within the CPS, carried out the Farquharson guidelines review. He considered both the evidence which had previously been considered, and additional materials and submissions which had subsequently been put forward. Applying the Full Code test, he reached the same decision as before, namely that no evidence should be offered against Mrs Hayes, but did so for a different reason. In contrast to his colleague who had taken the first decision, Mr Meikle concluded that the evidence was sufficient to meet the evidential test for both offences and that there was a realistic prospect of conviction. He therefore went on to consider the public interest test and concluded that it had not been met in the circumstances of this case. In a letter dated 3^rd May 2017 he explained his reasons as follows:

“These offences occurred against a backdrop of many years of litigation between CH and yourself. The actions of the defendant were clearly planned and deliberate (which weighs in favour of prosecution), but I also have to have regard to CPS guidance which advises that a prosecution may not be in the public interest if the principal proceedings are at a very early stage and the action taken by the defendant had only a minor impact. When looking at this case, the impact was trivial; it delayed proceedings. When considering whether a criminal prosecution would be in the public interest, and having regard to the guidelines to which I have referred and the issue of whether criminal proceedings are necessary and proportionate, I take note of the fact that it does not appear that the judge was minded to consider dealing with the matter as a contempt, as he might have done. The mischief done in this case could be properly addressed by the judge in the civil proceedings, if the judge felt so inclined. I have specifically considered the submissions made by the private prosecutor in relation to the public interest in prosecuting offences of this type, and continue to take the view that the balancing exercise to which I have referred under the guidelines comes down against a conclusion that the public interest has been made out.

I have also had regard to the inevitable public expense which a continued prosecution would incur, both to the CPS and the wider criminal justice system and the reality that, if convicted, the defendant would in my view be unlikely to receive a custodial sentence this is a factor which also leads me to the firm conclusion that a prosecution would not be a proportionate response to the likely outcome.”

Mr Meikle concluded his letter, by confirming that “a review of this decision under the CPS VRR scheme may be requested following the conclusion of the criminal proceedings”.

In the light of that decision, Mr Hayes has pursued this claim for judicial review. Permission was initially refused on the papers, but was granted after an oral hearing on the basis that there was an arguable ground that the CPS is unlawfully operating an inflexible policy of declining to take into consideration VRR representations prior to terminating a case.

Mr Hodivala’s submissions on behalf of Mr Hayes may be summarised as follows:

Mr Mably’s submissions on behalf of the CPS may be summarised as follows:

Killick, especially at paragraphs 48-49, identifies a common law right for a victim to seek review of a decision not to prosecute. The CPS is bound to conduct a review because judicial review would in principle be available of the decision not to prosecute (albeit that judicial review is to be “sparingly exercised” in such circumstances: see L v DPP, cited above,andsee also R v DPP ex parte C [1995] 1 Cr App R 136 at p140A), and it would be disproportionate for the CPS not to provide a system of review which obviated the need for an aggrieved victim to resort to proceedings.

The right to request a review is in essence the same as the right now guaranteed by Article 11 of the Directive. As indicated above, the Directive specifically leaves matters of procedure to the national law.

Neither Killick nor the Directive says anything about the scope of the right to request a review, or about the time when it may be exercised. However, the reference in paragraph 57 of Killick to the right being “an integral part of the exercise of a prosecutorial discretion” is to my mind an indication that the victim’s reasons for requesting a review should in principle be considered by the prosecutor at a time when they can effectively influence the decision on review. Such an indication is consistent with the statement in Killick at paragraph 48 that in deciding whether to prosecute, a prosecutor must take into account the interests of the victim as well as the interests of the state and the defendant.

Mr Hodivala’s submission, that the VRRG as operated by the CPS provides a victim in Mr Hayes’ position with no effective right to a review, is therefore an attractive one. If a decision by the CPS not to prosecute in a particular case is irrational, but the system of review does not enable that irrationality to be identified and corrected until after the accused has been acquitted, it is readily understandable that the victim should feel that (s)he is left without an effective right of review. Where a second prosecutor on review concludes that the earlier decision of the first prosecutor was wrong, and that both the evidential test and the public interest test justify and require a prosecution, but the accused has already been conclusively acquitted, an admission by the CPS of error, and an apology for the error, may well be seen as inadequate. Mr Hodivala’s submissions therefore have an instinctive appeal.

However, it must be remembered the Divisional Court in Chaudhry, at paragraph 21(ii) and (iii), made the important points about Killick which I have cited in paragraph 28 above. At paragraphs 44 to 45 of Chaudhry, the Court rejected any all-embracing right to a review; and in relation to the issues in that case, the court concluded (at paragraph 46) that the exception in paragraph 11(iii) of the VRRG was justified as a fair balance of competing interests. It is in my judgment clearly established by Chaudhry that the right to request a review does not necessarily apply across the board.

In the circumstances of this case, it is in my judgment necessary to consider two questions.

The first is whether- as Mr Hodivala submits - the VRRG is either in itself an inflexible policy or is a policy which the CPS operate in an inflexible manner. Mr Mably sought to argue that both the policy and its operation preserve an element of flexibility, but I am unable to accept his submissions in that regard. The footnote to paragraph 11 of the VRRG contemplates that in exceptional circumstances a right to a review may be afforded in respect of a CPS decision which is not a qualifying decision; but I cannot see that that footnote provides any support for the submission that there is also flexibility about the timing of a review of a qualifying decision falling within paragraph 9(iii). I think it significant that Mr Mably (in fairness, reacting on his feet to a question posed by the court) could not immediately suggest any circumstances, other than the extreme, in which his formula “never say never” could have any meaningful effect in relation to a qualifying decision falling within paragraph 9(iii).

The CPS has interpreted paragraph 9(iii) as meaning that the qualifying decision is only taken when the prosecution actually offers no evidence, with the result that no request for a review can be made until after that point. It is in my judgment clear that the effect of that interpretation is that in every such case, any review will only take place after the proceedings have been concluded. The victim’s representations as to why the initial decision not to prosecute was wrong will therefore only be considered after the accused has been acquitted, and when it is accordingly too late for the representations to result in the prosecution being continued. In that important respect, the scope of the VRRG is restricted or limited.

I therefore accept the submission on behalf of Mr Hayes that the VRRG is, or is operated as, an inflexible policy in a case falling within paragraph 9(iii).

However, that does not conclude all the issues in Mr Hayes’ favour, because it is necessary next to consider the second question: namely, whether it is unlawful for the CPS to operate an inflexible policy in this regard. Again, I see some merit in Mr Hodivala’s submission that the policy is operated in a way which unlawfully fetters the CPS’s discretion, and which goes against both Killick and the Directive by denying a victim’s representations of any value in the decision-making process.

There is however greater merit in Mr Mably’s submissions justifying the operation of such a policy. The following considerations combine to persuade me that the policy is not unlawful and is not operated in an unlawful manner.

First, nothing in either Killick or the Directive explicitly prohibits the CPS from operating such a policy; and Chaudhry makes clear that there is no all-embracing right to a review in all circumstances.

Secondly, I accept that the VRRG cannot be said to fail to provide any effective right to a review in a case falling within paragraph 9(iii). The prospect of an admission of error, coupled with an apology, is less than a victim in Mr Hayes’ position would want or hope for; but it is not nothing, and it does not leave the victim entirely without satisfaction. Moreover, it is in my view important to remember that the CPS is in any event under a duty to keep cases under review, can be required by a judge to review a case, and has a discretion to review its own decision as to the continuing or ending of a prosecution.

Thirdly, I am persuaded that the restriction on the operation of the VRRG, which I have identified in paragraph 46 above, is both necessary and proportionate as a balance of competing interests. Mr Hodivala is able to say that it gives insufficient weight to the interests of the victim; but Mr Mably is able to say that the alternative approach put forward by Mr Hodivala gives insufficient weight either to the interests of the accused (who is entitled to have the proceedings terminated as soon as possible after the decision not to prosecute has been taken) or to the importance of prosecutorial independence. In my view, Mr Mably’s argument has greater weight.

Fourthly, and most importantly, I accept Mr Mably’s submission that the operation of the policy is justified because the operational effectiveness of the VRRG would be seriously harmed if there were a right for a victim to make representations before the prosecution acted upon a decision to offer no evidence. In the present case, the facts and issues to be considered on a review fell within a very small compass, and there was sufficient time available to conduct a review before the trial date; but in many cases the evidence will be much more substantial and the issues much more complicated; and in many cases the decision to offer no evidence will be taken (perfectly properly) much closer to the trial date, or indeed at or during the trial. It must be remembered that a review of the evidential strength of a case would require the second prosecutor to consider all the material which had been considered by the first prosecutor, however long that process had taken. It must also be remembered that decisions to offer no evidence are properly taken in many cases. There is an obvious, and in my view insuperable, problem that the requirement of a review before the proceedings were concluded would cause serious and unjustifiable delay. In this regard, it is relevant to note that the importance of the victim’s views being considered has to be balanced against the importance of informing an accused as soon as possible if a decision has been taken to offer no evidence against him or her.

There would be a further adverse effect on operational effectiveness, because of the impact on resources if there was a right to have a review conducted before the proceedings were ended. True it is that a review will have to be carried out, regardless of whether it is done before or after the proceedings have been concluded; but it does not follow that the difference of timing of the review has no impact on resources. There is a significant difference, in terms of the use of finite resources, between an obligation to carry out a review in a timely manner and within the stated time limits, and an obligation to carry out a review as a matter of urgency because the accused must be told as soon as possible if the case against him is to be ended.

Mr Hodivala sought to meet that concern by suggesting that a right to a review before the proceedings are concluded could be limited to cases which were exceptional or which fell into comparatively narrow categories. I cannot accept that line of argument. First, there are in my view powerful objections of principle. If (to take examples mentioned in argument) a right to request a review before the proceedings are concluded is to be granted or refused according to whether the accused is in custody, or whether the accused will be particularly badly affected by any delay in concluding the proceedings, I can see no principled basis on which the victim’s rights should be dependent on such factors. In my view, it is clear that, if a right to a review before the proceedings are concluded is to be afforded to any victim, it must be afforded to all victims. Secondly, there are powerful objections on grounds of practicability. Unless rigid lines were drawn between categories of case (which would give rise to the objections of principle), it would be necessary for the CPS to consider all the circumstances before deciding whether a case was “exceptional”. That would mean, in effect, that the CPS would have to review the case in order to decide whether it should conduct a review before the proceedings were concluded.

For those reasons I conclude that paragraph 9(iii) of the VRRG, as operated by the CPS, is not unlawful. It imposes a restriction upon the scope of the scheme, but that restriction is justified and proportionate in its balancing of competing interests: cf R (Nicholds) v Security Industry Authority [2007] 1 WLR 2067. In my judgment, this is not a case in which the CPS has unlawfully fettered its exercise of a statutory discretion, contrary to the principle stated by Lord Reid (see paragraph 37(v) above). The restriction on the operation of the VRRG can in my judgment be distinguished from the application, in R (Robson) v CPS [2016] EWHC 2191 (Admin), of CPS guidance which excluded the use of a conditional caution, as an alternative to prosecution, in a case of domestic violence. In that case (on which Mr Hodivala relies), the accused would have met the criteria for a conditional caution had it not been for the guidance excluding such a course in a domestic violence case. A Divisional Court held that if the guidance were interpreted

“… as precluding a conditional caution in each and every case which falls into the largely self-determined category of domestic violence cases, it would constitute an unlawful fetter on the prosecutorial judgment of the DPP and the CPS”: per Simon LJ at paragraph 40.

In the present case, however, the CPS has not limited the availability of a right to a review, or excluded certain victims from that right: it has only limited the timing of a review, in a manner which is unsatisfactory from the point of view of one of the three interests involved. It has done so for the legitimate purpose of giving priority, in cases falling within paragraph 9(iii), to the combined interests of the accused (who has, by definition, been assessed by the CPS as being a person who should no longer be prosecuted) and of preserving the prosecutorial independence and operational effectiveness of the CPS.

The challenge to the lawfulness of the CPS’s operation of the VRRG in paragraph 9(iii) cases therefore fails.

I can well understand why Mr Hayes may feel that in the review of the decision whether to prosecute Mrs Hayes, greater weight should have been given to the public interest arguments in favour of a prosecution. However, no separate challenge is or could be made to the CPS’s decision on the merits: it was one which was open to the independent prosecutor Mr Meikle, who had all the information available to him and considered it with care.

It follows that in my judgment this claim must be dismissed.

Although I have concluded that the operation of paragraph 9(iii) is not unlawful, the facts of this case show that there is a danger of raising false expectations in the minds of victims. The references to time limits in paragraph 20, and in paragraphs 53-62, of the VRRG are capable of being understood by a victim as meaning that a timely request for a review will be processed within the stated timescale and that the proceedings will not be concluded in the meantime. Other paragraphs of the VRRG make clear that that is not so in a paragraph 9(iii) case; but, with respect to its author, the final paragraph of Mr Streeter’s letter of 13^th March 2017 (quoted in paragraph 6 above) illustrates the risk that a victim may not appreciate that point. I think it very likely that a non-lawyer reading that paragraph would understand it to mean that the proceedings would not be brought to an end if the victim sought a review within the stated time limit. The CPS may therefore wish to consider whether there is a clearer way in which a victim could be informed of this aspect of his or her rights.

I agree.