In a landmark case this August, Jade McCrossen-Nethercott successfully sued the Crown Prosecution Service (CPS) for refusing to prosecute the man she says raped her. This, and other cases, have highlighted deep flaws in the CPS’s handling of victims’ rights and the need for reform.
Days before the trial, prosecutors told McCrossen-Nethercott that they were dropping her case. She disagreed and invoked her victims’ right to review (VRR) to challenge the decision. The CPS’s appeal and review unit (ARU) subsequently agreed that the defendant ought to have been prosecuted. His “sleepwalking” defence should have been challenged and he was “likelier than not” to have been convicted.
CPS policy about dropping a case is “at the earliest opportunity” to ask a court for a formal not guilty verdict. The VRR is a right in the Victims’ Code; but the process has been devised by the CPS, and that “dropping” policy is in its guidance.
In McCrossen-Nethercott’s case, aware that the ARU might overturn their decision, prosecutors rushed to court for a verdict of not guilty. The double jeopardy rule stops anyone who has been acquitted from being tried again for the same offence. So, the CPS has ensured that Jade’s attacker can never be prosecuted.
Whatever the intention of this policy, it is grossly unfair to complainants who exercise their right to review. The VRR has been described by the high court (R v Killick 2011) as “an integral part of the exercise of the prosecutorial discretion… not a complaint” to be dealt with as an afterthought, with, at best, an apology, when the case has been dropped. The CPS undermines a right guaranteed by the statutory Victims’ Code, demeans victims and puts the public at risk when it acquits defendants who are “likelier than not” to be convicted.
Jess Phillips, the minister for safeguarding, says that “the public would be surprised to learn that a letter of sorrow is all that an alleged rape victim can expect where such errors have been made”.
The CPS website claims that only a tiny percentage of its decisions are overturned on review, but it does not promote the VRR, and the victims’ commissioner has found that only 8% of the public knows it exists. The few who do hear of it will be deterred from exercising it, since all it can bring is an empty apology, in place of justice.
When victims do use it, decisions not to prosecute are reversed. In sex cases, the success rate of VRRs increased from 6% in 2018-19 to 21% last year. Victim Support has had a cluster of such cases, in past months, dropped just before the trial date.
This means that the CPS is making errors and rushing to court to acquit more and more defendants whom ARU later finds were likely to have been convicted. That growth is making change increasingly urgent. Victims’ reviews need to be completed before the CPS awards permanent acquittals and will need to be expedited to limit delay to defendants.
We have a new attorney general, a new solicitor general and a new director of public prosecutions. It is a time for reflection on how this policy is causing injustice.
• Dame Vera Baird is the former victims’ commissioner, solicitor general and police and crime commissioner
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