The IOPC intends to introduce a Victims’ Right to Review (VRR) in respect of decisions taken by it not to make a referral to the CPS on conclusion of a criminal investigation.
A right to a review of a decision not to prosecute for a victim of crime is provided for in Article 11 of the European Directive 2012/29 establishing minimum standards on the rights, support and protection of victims of crime, that is transposed in to UK law by amendments to the Code of Practice for Victims of Crime.
The question of the right to a review of a CPS decision not to prosecute was also considered in detail by the Court of Appeal in the case of R v Christopher Killick  EWCA Crim 1608 and relevant principles were set out in that judgment.
The Crown Prosecution Service and the police have VRR schemes in operation enshrining these legal obligations.
Paragraph 23(2) of Schedule 3 to the Police Reform Act 2002 sets out the action the IOPC is required to take on receipt/completion of an investigation report. That action includes determining whether or not, having applied the relevant conditions, to make a referral to the CPS.
The IOPC is in a different position to the CPS and the police and we do not consider that we are under a strict legal duty to provide for a right to review of a decision not to make a referral to the CPS. We acknowledge, however, that the effect of such a decision is that there will be no consideration of the matter by the CPS, and therefore, no prosecution. This results in a situation in which a victim of a crime, who alleges that the crime was committed by a member of the public, has a right of review of a decision not to refer the matter to the CPS; but a victim of a crime, who alleges that the crime was committed by a police officer does not.
It is for this reason that the IOPC, following a review of its policy position, has decided to introduce a VRR scheme. The attached copy of the proposed policy seeks to give effect to that decision.
The proposed IOPC scheme mirrors the CPS and police schemes already in operation in many significant respects. However, it has been developed to take in to account the particular context
within which the IOPC operates and there are, therefore, some differences. For example, the policy reflects that a decision not to make a referral to the CPS will be provisional for a period of time to enable a right to review to be exercised before the decision becomes final. This feature of the policy has also informed the timescales adopted in the policy for the making of an application for review, which are intended to strike as fair a balance as possible between the need for certainty in decision making and the facilitation of a right to review by the IOPC.
We value your input and welcome your feedback regarding all elements of the policy document. We do, however, draw your particular attention to and request your views on the following:
1. The proposed timescales for the process;
2. Any potential impact on disciplinary proceedings (and any other proceedings) and any views you may have on managing any such impacts; and
3. How to treat ‘out of time’ requests.
Please provide your feedback by the end of day Friday 17 July 2020. We will review and consider all feedback received and then consider how this should be implemented into the VRR policy.
If anything is unclear, you would like to discuss this request or require any further information please contact Sarah Peach, Project Manager at [email protected]
Director General Independent Office for Police Conduct