AC, R (On the Application Of) v The Director of Public Prosecutions, Court of Appeal - Civil Division, September 27, 2018, [2018] EWCA Civ 2092

Resolution Date:September 27, 2018
Issuing Organization:Civil Division
Actores:AC, R (On the Application Of) v The Director of Public Prosecutions
 
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Neutral Citation Number: [2018] EWCA Civ 2092

Case No: C1/2016/4506

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE, DIVISIONAL COURT

LORD JUSTICE GROSS & MR JUSTICE NICOL

[2016] EWHC 2447 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27/09/2018

Before:

LADY JUSTICE RAFFERTY

LORD JUSTICE KITCHIN

and

MR JUSTICE BIRSS

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Between :

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Mr Dan Squires QC (instructed by Bhatt Murphy Solicitors) for the Appellant

Mr Duncan Penny QC & Mr William Hays (instructed by CPS Appeals and Review Unit) for the Respondent

Hearing dates: 19th June 2018

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Lady Justice Rafferty :

  1. The Appellant challenges the 11th October 2016 order of the Divisional Court dismissing her claim for judicial review.

  2. Her Grounds of appeal are:

    i) Article 11 of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 bestows on victims of crime an entitlement to a review of any decision not to prosecute. Read with R v Killick [2011] EWCA Civ 1608 and R(L) v DPP [2013] EWHC 1752 it requires that victims have a right to a review when one suspect has been charged, consistent with the underlying purpose of the Victim Right to Review scheme (``VRR'').

    ii) Alternatively the VRR is unlawful.

  3. The Divisional Court held that the VRR is lawful, that victims have no right to a review in any specific case pursuant to the Directive or at common law and that it is open to the Crown Prosecution Service (``CPS'') to refuse to review in some cases or categories of case.

  4. The Divisional Court's conclusion the Appellant submits was flawed for three reasons:

    i) The Court's reliance on `carve-outs' within the Directive supports rather than undermines the Appellant's argument. That there are carve-outs demonstrates a general entitlement to review subject to specific exceptions.

    ii) The language of Article 11 is consistent with an obligation on Member States to afford a right to review, in contrast to other language in the Directive, such as in Article 12, which merely requires Member States to take measures to support and protect victims.

    iii) That the Directive permits Member States to set procedural rules does not authorise Member States to limit the substantive right to review.

    Facts

  5. In 1998 the Appellant's estranged husband, Mohammed Chaudhry (``MC''), abducted two of her children whom she did not see for the next 14 years. She believes MC's sister, Farkhanda Chaudhry (``FC'') encouraged and financed the abduction. In 2013 MC was charged with child abduction and on 4 September 2014 sentenced to 7 years in prison. The Appellant was told on 7 October 2014 of a November 2013 decision confirming that FC would not be charged.

  6. On 11th October 2014 the Appellant sought from the CPS a review of that decision. On 15th June 2015, shortly before she was due to issue proceedings, the CPS agreed to what it described as the exceptional course of an ad hoc review outside the VRR in an attempt to avoid litigation. That review, by an independent prosecutor, was completed on 24th August 2015. On the 17th November 2015 the CPS Appeals and Review Unit considered the matter and confirmed by letter that there was no reasonable prospect of a conviction. The Appellant does not challenge that decision.

  7. After correspondence the CPS agreed to add to the VRR a footnote which read that ``There may be very exceptional circumstances in which cases that fall within the exception to paragraph 11 may nevertheless be considered for inclusion in the VRR scheme on the advice of the Appeals Review Unit (``ARU'') manager or other senior manager'' and on 21st July 2016, after the Divisional Court hearing but before the judgement, added it.

    Material provisions

    The Victims' Directive

  8. The Directive expresses its aims as ``to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings'' (Art 1). Art 2(1)(a) defines ``victim'' as ``a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence''.

  9. The preamble to the Directive in its Recitals includes:

  10. The right to a review of a decision not to prosecute should be understood as referring to decisions taken by prosecutors and investigative judges or law enforcement authorities such as police officers, but not to the decisions taken by courts. Any review of a decision not to prosecute should be carried out by a different person or authority to that which made the original decision, unless the initial decision not to prosecute was taken by the highest prosecuting authority, against whose decision no review can be made, in which case the review may be carried out by that same authority. The right to a review of a decision not to prosecute does not concern special procedures, such as proceedings against members of parliament or government, in relation to the exercise of their official position.

  11. A decision ending criminal proceedings should include situations where a prosecutor decides to withdraw charges or discontinue proceedings.

  12. A decision of the prosecutor resulting in an out-of-court settlement and thus ending criminal proceedings, excludes victims from the right to a review of a decision of the prosecutor not to prosecute, only if the settlement imposes a warning or an obligation.

  13. A victim's right and any limitations sit within Art 11:

    Art 11 Rights in the event of a decision not to prosecute

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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-...

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