QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE NICOLA DAVIES
| The Queen (on the application of TIM HAYES)
|CROWN PROSECUTION SERVICE
Louis Mably QC (instructed by Crown Prosecution Service) for the Defendant
Hearing dates: 16th January 2017
Crown Copyright ©
Lord Justice Holroyde:
The private prosecution and the CPS's decision to offer no evidence:
"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]."
"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."
"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."
i) practical considerations of case management, including the substantial number of cases in which no evidence is offered and the lengthy adjournment of all such proceedings which would be necessary if a full independent review of the entirety of a case was carried out before no evidence was offered;
ii) the CPS's legal guidance to the effect that where a decision has been reached to end proceedings, the prosecution must be terminated at the earliest opportunity; and
iii) the difficulty of making fair and consistent decisions across a wide range of circumstances if the VRR Scheme was extended to cases where the CPS has decided to offer no evidence.
The Victims' Right to Review Guidance:
"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  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  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."
i) Recital (9) states that victims "should be provided with sufficient access to justice".
ii) Recital (11) makes clear that the Directive lays down minimum rules and that member states may provide a higher level of protection.
iii) Recital (12) makes clear that the rights set out in the Directive are without prejudice to the rights of the offender (that term including both persons convicted of crime and those suspected or accused of crime).
iv) Recital (26) requires that any information provided to a victim should be given in sufficient detail to enable the victim to make informed decisions about his or her participation in proceedings. It makes clear that this requirement "is equally relevant for information to enable a victim to decide whether to request a review of a decision not to prosecute".
v) Recital (43) requires that any review of a decision not to prosecute should be carried out by a person or authority other than that which made the original decision.
"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."
"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."
"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"."
"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)."
"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.
"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."
"Accordingly, it is vitally important that prosecutors consider and choose the method of termination with care."
"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."
"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."
"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."
"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."
"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 ). 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."
The Crown Court hearing on 5th April 2017:
"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 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."
"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."
The present proceedings:
The submissions of the parties:
i) Either the VRRG itself, or the manner in which the CPS applies it, leads to the result that there are no circumstances in which the CPS, having decided that no evidence should be offered in a criminal case such as the prosecution of Mrs Hayes, will consider a request for a review of that decision before the defendant has been acquitted.
ii) The court in Killick recognised that, before the Directive was adopted, a victim already had a right under English law to request a review of a decision not to prosecute. That right is, in principle, coextensive with the right to seek judicial review of such a decision.
iii) The decision of the CPS in this case is a qualifying decision, and therefore Mr Hayes should have a right to request a review. It is acknowledged that the right does not mean that the victim is entitled to expect that the prosecution will be commenced or recommenced.
iv) In contrast to the present case, Chaudhry did not involve a qualifying decision. It can therefore be distinguished. In any event, there is nothing in that case to suggest that the VRRG is not subject to the general principle that a public body should not fetter its discretion.
v) That principle is stated as follows by Lord Reid in his speech in British Oxygen Company Limited v Minister of Technology  AC 610 at page 625c:
"The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' …"
vi) Paragraph 33 of the VRRG recognises the balance which must be struck between certainty in decision-making, and not allowing a wrong decision to stand. There is a clear public interest in reviewing wrong decisions, and the right to request a review provided by the VRRG must therefore be effective.
vii) Paragraph 46 of the VRRG indicates that there is "usually" no possibility of continuing proceedings where the qualifying decision is to offer no evidence. The CPS are wrong to rely on this paragraph as supporting their inflexible approach: the inclusion of the word "usually" recognises that there is a degree of flexibility, and that there may be cases - of which this is an example- in which a review could be carried out comparatively quickly, well in advance of a trial date and with little prejudice to the accused.
viii) Further, paragraph 57 of Killick makes clear that the right to request a review is an integral part of the exercise of a prosecutorial discretion. The approach adopted by the CPS contradicts that principle: it relegates a victim's views from their rightful place as part of the decision-making process to a mere complaint about a decision which has been made.
ix) Recital 43 and Article 1 of the Directive require that the participation of a victim must include an effective right of review. In this regard, the decision in Chaudhry is relied upon.
x) The final paragraph of the CPS's decision letter dated 13 March 2017 (quoted at paragraph 7 above) did not state in terms that no review could be considered until after the prosecution had been concluded. Rather, it implied flexibility in that regard. It was not until the letter of 29th March 2017 that the CPS first stated that the right of review could only be progressed after the matter had been concluded before the Crown Court. Mr Wicks in his email to the Administrative Court of 4th April 2017 then wrongly stated that the VRRG did not extend at all to cases such as this in which the CPS has decided to offer no evidence.
xi) No statutory objective requires the CPS to adopt an inflexible policy of excluding effective review in circumstances such as these, and the adoption of a more flexible policy would not undermine any statutory purpose or objective. The present case can therefore be distinguished from cases such as R (Hopkins) v Sodexo Limited 2016 EWHC 606 (Admin) in which Sir Stephen Silber held that an inflexible policy (refusing to allow prisoners in an intimate relationship to share a cell) was justified because any departure from it would undermine the statutory policy of maintaining order and discipline in prisons.
xii) Although the VRRG could be operated flexibly, the correspondence in this case shows that the CPS has adopted an inflexible approach which is inconsistent with the principles in Killick, inconsistent with the Directive, and inconsistent with the aim that the VRRG should be effective to render judicial review proceedings unnecessary. The consequence of the approach adopted by the CPS is that an aggrieved victim has no alternative but to seek judicial review, since otherwise he or she will have no effective remedy against what may be found to have been an irrational decision not to prosecute. It would be lawful for the CPS to have a policy that a right of review before criminal proceedings were terminated would be exceptional; but it is unlawful to have a policy which says that there never can be such a review. In deciding whether a case is exceptional, such that a review should be carried out before the criminal proceedings are terminated, relevant considerations for the CPS might include the complexity of the case; whether review representations had been made promptly; whether the accused was on bail or in custody; and whether other matters relating to the accused were relevant, such as mental health issues or other particular prejudice.
xiii) There are no significant resource implications of conducting a review before, rather than after, offering no evidence: the review has to take place, whenever it is held.
xiv) The representations of a victim should be capable of influencing the prosecutorial decision whether to prosecute. The inflexible policy adopted by the CPS prevents that from happening, regardless of the importance or complexity of the case. In the circumstances of this case, review representations were quickly made; it was possible to conclude the review quickly; and there would be little if any impact on the trial process, the trial date still being some months away. The inflexible application of a policy adopted by the CPS unnecessarily fetters its own discretion, and is therefore unlawful. The fact that a Judge can express his or her view, in accordance with the Farquharson Guidelines, cannot assist the CPS.
i) The CPS's policy is not inflexible in the sense which case law contemplates, because it must be viewed in the context of the CPS's general discretion, and duty, to keep all criminal prosecutions under review. Even if it were regarded as an inflexible policy, it does not fetter the discretion of the CPS in relation to its proper exercise of its powers, and does not deprive a victim of an effective right of review.
ii) In any event, even if the policy be inflexible, it is wholly justified on operational grounds, and strikes a proper balance between the interest of the prosecution, the accused and the victim.
iii) In the circumstances of this case, the decision to offer no evidence was in fact reviewed (following the observations of HHJ McCreath): that in itself vindicated Mr Hayes' right to request a review. Mr Hayes actually received a form of review which was more advantageous to him than a review under the VRRG would have been: under the VRRG, the independent prosecutor would consider only the evidence and material which was available when the original decision was made, and would consider whether that original decision had been right or wrong. In this case, Mr Meikle started afresh, taking account both of the evidence originally available and further, subsequent material.
iv) It follows that Mr Hayes is not claiming an entitlement to have a review: he is claiming an entitlement to a further review.
v) The requirement that the right to request a review must be effective is not a requirement that it must be capable of resulting in the criminal proceedings being re-opened. If that were the correct interpretation of "effective", it would follow that in any case in which the CPS had decided to offer no evidence, the victim would be entitled to request a review before that step was taken. There is therefore no substance in the argument that the CPS could and should be prepared in exceptional circumstances to conduct the review before concluding the criminal proceedings.
vi) At paragraph 57 of Killick, Thomas LJ called upon the DPP to provide guidance as to procedure, but was not prescriptive about the form which that procedure should take. The DPP was required to strike a fair balance between the three interests, and the VRRG does so. Paragraphs 9 and 11 of the VRRG set the limits of which decisions are within the scheme, and which are not. Both paragraphs are concerned with the independence and operational effectiveness of the CPS: it is imperative that the CPS be able to conduct proceedings in accordance with the interest of justice. Where there is a single defendant, and paragraph 9(iii) applies, the review is conducted after the proceedings have been concluded, because otherwise the operational ability of the CPS to conduct the case would be inhibited, which would be likely to give rise to unfairness and to affect the liberty of the accused.
vii) The footnote to paragraph 11 of the VRRG indicates that the CPS can depart from the policy if there is good reason to do so. That footnote does not specifically refer to a qualifying decision under paragraph 9(iii), but is indicative of a general approach of "never say never".
viii) The right to request a review of a decision not to prosecute is a common law right, the ambit of which was considered in Choudhry. The court there rejected any suggestion that the right applies across the board. In a case such as the present, the VRRG provides a right of review in which is effective in the context of respecting the balance of the three interests engaged in the criminal justice system.
ix) Mr Hayes is driven to argue that paragraph 9(iii) of the VRRG does not strike a proper balance because it fails to give sufficient weight to the views of a victim; but that argument is incorrect, because –
a) it is essential that the CPS have the right to control the conduct of proceedings in accordance with the interests of justice: if a collateral process is introduced, it will lead to delay, which is contrary to the interests of justice.
b) neither Killick nor the Directive stipulates that a review can only be effective if it provides an opportunity for proceedings to be re-instated. A subsequent review, which if appropriate identifies an error in the prosecutorial decision and apologises for it, is effective and is not academic: it vindicates the representations made by the victim.
c) given the analogy between the review process and judicial review, it is relevant to note that judicial review has been granted in cases where no evidence had been offered and the victims allege that the decision had been taken in breach of their rights. An example of this is B v DPP  1 WLR 2072, in which the court awarded damages for breach of a victim's Article 3 rights, and Toulson LJ observed (at paragraph 71) that the favourable judgment of the court would itself go some way towards providing just satisfaction to the victim.
"… 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.
A concluding observation:
Mrs Justice Nicola Davies: