Freedom of Information Request Reference No: I note you seek access to the following information: Request a copy of the policy regarding the Victim Right to Review scheme for the Metropolitan Police for decisions made by the Police. I also request a copy of the written information provided to victims to advise them of their right to instigate the Victims Right to Review scheme as required by the Approved Code of Practice for Victims. DECISION I have today decided to disclose the located information to you in full. Please find attached information pursuant to your request above. Information Rights Unit
Freedom of Information Publication Scheme Protective Marking: Not Protectively Marked Publication (Y/N): N Title: Victims Right to Review - Questions and Answers Further information provided and guidance to officers as to the Victims Right to Summary: Review (VRR) Branch / OCU: TP - Capability & Support Date created: 1 st June 2016 Review date: June 2020 Version: 1.0 Author: Robert Taylor-Jenkins - TP Crime Policy Victim Right to Review (VRR) - Q&As Introduction Officers investigating crime and contacting victims must be aware of their responsibilities within the Victim Code of Practice (VCOP). The Code expects officers to comply with all requirements to contact victims, especially with regard to the ongoing updates to an investigation. As such, with the introduction of VRR on the 1st April 2015, there is now even more focus around compliance with VCOP. Officers will be required to inform victims when the MPS have decided not to prosecute a suspect interviewed, in relation to a crime being reported and their (the victim) rights as detailed below. Comply with VCOP, comply with VRR What is the VRR scheme? VRR relates to a right for a victim to ask the police to review a decision not to prosecute a suspect. The right of a victim to request such a review was considered in the case of R v Killick and is set out in Article 11 of the EU Directive on Victims (EU Directive), which comes into effect in November 2015. Article 11 of the EU Directive provides that, Member States shall ensure that victims.have the right to a review of a decision not to prosecute, and the Directive makes clear that this includes decisions made by, law enforcement authorities such as police officers. The review should take a fresh view of the evidence and decide whether a charging decision should be made, whether the matter should be referred to the Crown Prosecution Service (CPS), whether further enquiries are necessary or that no further action should be taken. 1
When does the VRR scheme come into effect? As of 1st April 2015, all police services, not just the MPS, must introduce a VRR scheme. ACPO have provided a police VRR scheme framework which allows forces to individually tailor the details of the scheme to their own local situations. The right to review does not apply retrospectively. Hence, only those decisions made from the 1st of April 2015 can be requested to be reviewed. Does the VRR scheme apply to all offences? The VRR scheme applies to qualifying cases ; the definition of which is as follows: I. They only apply to National Crime Recording Standard (NCRS) offences. II. They only apply where a suspect has been identified and interviewed under caution, either following arrest or by voluntary arrangement. This however, does not apply to situations where limited questioning has taken place following an incident, e.g. during a stop and search situation. III. They only apply where police: a) Make a decision not to bring proceedings in cases where the police have the authority to charge a suspect; or b) Make a decision that the case does not meet the Threshold Test for referral to the CPS for a charging decision. Specifically, what does not fall within the scope of the police VRR? I. Cases where no suspect has been identified and interviewed. II. Cases where charges are brought in respect of some (but not all) allegations made or against some (but not all) possible suspects. III. Cases where a charge is brought that relate to the matter complained about by the victim but the offence charged differs from the crime that was recorded; for instance the suspect is charged with common assault but an offence of actual bodily harm has been recorded. IV. Cases which are concluded by way of out of court disposal; and V. Cases where the victim retracts their complaint or refuses to co-operate with the investigation and a decision is therefore taken not to charge/not to refer the case to the CPS for a charging decision. 2
Who can apply under the VRR scheme for a review? Any victim in a qualifying case (see above) is entitled to seek a review of the decision not to prosecute. A victim is defined as per The Code of Practice for Victims of Crime 2013 (Victims Code): a person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct. It also includes the following qualifying persons : Close relatives of a person whose death was directly caused by criminal conduct. Parents or guardians where the main victim is a child or youth under 18. Police officers who are victims of crime. Family spokespersons of victims with a disability or who are so badly injured that they cannot communicate; and Businesses, providing they give a named point of contact. VRR is specifically intended to allow a victim to have an avenue to appeal a decision not to prosecute. It is not intended to allow others, such as campaigning groups, to direct reviews of cases that relate to their area of interest and such requests should be declined. It is acknowledged that a victim might ask an individual to act on their behalf, such as a solicitor or an MP. The appropriateness of acting on such requests will be dealt with on a case by case basis and the MPS should obtain written confirmation, where appropriate, that the person in question has the authority of the victim to act on their behalf. What about VRR for victims who qualify for an enhanced service as per the Victims Code? The persons who qualify for an enhanced service are as follows: I. Vulnerable persons. II. III. IV. Intimidated persons. Persons who are victims of the most serious crime; and Persons who are persistently targeted. The MPS will ensure that an appropriate level of support is given to those persons above to enable them to make an informed decision regarding their right to ask for a review. This might involve ensuring that relevant victim support agencies are engaged in helping the victim with their decision regarding VRR. These reviews should be expedited, where possible, as 3
the effect of the crime and of uncertainty regarding the outcome of the investigation are likely to have an increased impact on them. What action do I need to take when a decision has been made not to prosecute a suspect for a qualifying case? All victims or other qualifying persons must be notified of their right to ask for a review at the point they are informed of the decision not to prosecute. This must be done via the template letter (see Appendix A) and must be recorded on the CRIS DETS pages. The letter must be sent regardless of any phone calls or emails sent to the victim. There may be circumstances, such as high risk or domestic abuse cases, where sending a letter could place the victim at greater risk. In such cases, any decision not to send a letter must be clearly justified on the CRIS DETS screen and every effort made to find another secure, but auditable, form of contact for use when contacting the victim. The eventual form of contact must be agreed with the victim and their choice recorded on the CRIS DETS screen. The letter should explain that reviews will not ordinarily be conducted until the conclusion of the investigation. This is to cater for situations where there are more than one suspect and no further action is taken against one or more suspects but the case remains open and actively investigated. Consideration may need to be given to securing material that the victim indicates will form the basis of a future request for a review, where appropriate. Particularly, if it is liable to being lost or destroyed e.g. CCTV footage. If there is a likely to be a significant period of time between the decision to take no further action and the concluding of the investigation, consideration may also need to be given for conducting the review at an earlier stage, as very lengthy delays could strengthen a subsequent abuse of process argument made by the suspect. You must record all VRR scheme related actions and conversations (in person, over telephone, email etc) had with persons on the CRIS DETS pages of the associated recorded crime. You must also insert the HY code (Victim Updated - Right to Review) to ensure that the crime report records the fact that you have offered the VRR scheme to the victim. I have received communication from a victim requesting a review, what do I do now? Once a request has been received, you must inform the officer who made the original decision not to prosecute; they in turn must inform an officer senior to their rank to perform the review - the Reviewing Officer. They must be informed within 5 working days to allow the 4
Reviewing Officer to acknowledge the victims request for review and to tell the victim what will now happen. The Reviewing Officer must send an acknowledgement to the victim within 10 working days of receipt of the victim s communication asking for the review. The Reviewing Officer must either send a letter (Appendix B), or, if the circumstances dictate otherwise, record the method and content of communication agreed between the victim and the police. Who should conduct the review? The person carrying out the review must not have been involved with the original case and must be independent of the investigation. The reviewing officer should also be of a rank higher than the officer who made the original decision to not proceed. Therefore, due to the fact that most case disposal decisions within the MPS are made by officers of Sergeant rank acting as Evidential Review Officers, the likely person would be that of Inspector rank. This may not be the case all of the time and cases, such as those dealt with within the Specialist Crime arena, may require a higher rank to conduct the review. Another exception is the reviews of S.18 GBH matters which currently require a Detective Inspector (DI) to make the NFA/NPW decision under current MPS policy. Such reviews would need to be carried out by Detective Chief Inspector (DCI) rank. Similarly, authorisation of no further action for rape investigations are normally taken at DI level necessitating the review to be carried out by a DCI. Qualifying cases where specialist knowledge is required, i.e. public protection, financial investigations, cyber crime etc, should result in the assigning of review officer who has relevant experience or qualifications in the field. What is being reviewed? The review should take a fresh view of the evidence and decide whether a charging decision should be made, whether the matter should be referred to the CPS, whether further enquiries are necessary or that no further action should be taken. It should not be reviewing the validity of the original decision making process. What needs to be achieved in the review in order to overturn an original decision? A determination to overturn a decision not to prosecute must be grounded in the principle that the original decision was wrong. The situations are when: 5
I. An earlier decision was made to not refer to the CPS, where it was required, was wrong in assessing whether the Threshold Test had been met. I. The police have authority to charge and that the earlier decision not to charge was wrong in applying the evidential or public interest stages of the Full Code Test. II. Taking into account the above two situations, for the maintenance of public confidence in the Criminal Justice System (CJS), the original decision must be reversed. Factors that might be regarded as leading to a determination that the original decision was wrong include: I. An unreasonable decision to disregard compelling evidence. II. A significant misinterpretation of the evidence. III. A failure to consider (or an unreasonable decision to ignore) relevant policy. IV. An incorrect application of the law. Please see further guidance published by the CPS for their prosecutors which may be of assistance to police reviewing officers. http://www.cps.gov.uk/legal/p_to_r/reconsidering_a_prosecution_decision/ What are the timeframes around VRR? Victims should be allowed to request a review within three months of being notified of the case decision not to charge. Requests made after this period should be dealt with at the discretion of the MPS. Consideration should be given to retain case material for at least the three month period open for review requests. When a victim requests a review of a decision, it should be acknowledged within 10 working days via letter unless the victim has stated that they do not wish to be communicated via letter. In these cases, the victim requests for another method of communication should be recorded on the CRIS DETS screen. Where possible, the review should be completed and a decision as to the review communicated to the victim within a 30 working day period, i.e. within 6 weeks of the receipt of the request from the victim. However, should a case be particularly complex or sensitive, victims should be told of the likelihood of an extended response period and be kept up to date regularly as to the progress of the review. In cases where there are limits as to the time where a prosecution can be brought (statutebarred), every effort should be made to expedite the review process and early liaison with the CPS must be made. 6
What are the possible outcomes from a review? There are six potential outcomes of a review: I. The original decision to take no further action is upheld. II. III. IV. The original decision is overturned and proceedings are commenced against the suspect, i.e. they are charged/summonsed. The original decision is overturned and the suspect is dealt with by way of an out of court disposal. The original decision is overturned and the case is referred to the CPS for a charging decision. V. It is determined that further enquires need to be completed before the reviewing officer can make their decision. VI. The original decision is overturned but the case is statute-barred and proceedings cannot be instigated. In cases where it is determined that further enquiries are needed (point V above), consideration should be given as to whether the reviewing officer (or another supervisor) is best placed to manage their completion. If following completion of the further enquiries, no further action is still the proposed outcome the matter should be brought back to the reviewing officer for determination. Where should I record the outcome and how should I communicate with the victim? The outcome of the review should be recorded within the CRIS DETS screen. The method of communicating the outcome of a review with a victim may be determined on a case by case basis but review decisions should be confirmed in writing, unless the circumstances of the case make it inappropriate to do so or the victim has stated that they do not wish to receive written communication. In any case, the fact that you have communicated with the victim regarding the review and a brief summarisation of the conversation with the victim, (if not via letter) should be recorded on the CRIS DETS screen. Please find a review results template letter (see Appendix C). In cases which are statute-barred but where the reviewing officer believes that the original determination was wrong, the only option available is to offer an explanation and, where appropriate, an apology to the victim. What communication should I have with the suspect(s) regarding a review? 7
Prior to any victim request for a review, suspects who have been informed of a decision to take no further action against them must be made aware that proceedings may still be initiated in light of fresh evidence or a review of the decision to take no further action. At the time of a request from the victim under the VRR, suspects should not be made aware of the victim s request for a review, even during the review process or in cases where the original decision is upheld. However, if following a victim request for a review, a decision has been made that proceedings are to be commenced; the suspect should obviously be advised. Do victims have any opportunities for recourse following a review decision by the MPS? It is anticipated that only one review will ever take place at the MPS level. Dependent on unique circumstances, consideration could be given to providing a second review, but this is not necessary to meet the requirements of the EU Directive mentioned above. A victim who remains dissatisfied with the outcome of the MPS review and wishes to pursue the matter further can apply to the High Court for a judicial review. A likely outcome may be that decision at MPS level is overturned and the matter being referred to the CPS for a charging decision. The CPS could still decide to take no further action and the victim would then be entitled to ask for a review of the CPS decision under the CPS VRR scheme and ultimately to refer the matter for a judicial review. What about complaints, misconduct or under-performance under VRR? Reviews of decisions not to prosecute should not be considered as complaints against the police. If a review of an investigation reveals issues of misconduct or under-performance then these should be dealt with under Unsatisfactory Police Performance or via Professional Standards. Similarly complaints made regarding the reviewing officer, but not specifically about the decision itself, such as alleged incivility, should be dealt with in the usual manner. An expression of dissatisfaction by the victim in relation to a review decision should not automatically be treated as a complaint under the Police Reform Act. The appropriate way for a victim to challenge the reviewing officer's decision is by way of judicial review. What is the role of the BOCU SLT Support Team? The support team should either take responsibility, or assign an officer and layered resilience, for their VRR Mailbox which has been created for each borough. The mailbox will need to be 8
monitored on a daily basis (office hours - working day) to ensure that any communication from victims (following the VRR Introduction letter) has been read and allocated to an appropriate officer for the review to start. SLT support will need to remind officers of this document and its existence within the Total Victim Care toolkit. They must also be reminded of their responsibilities to the review. The mailboxes will allow for an audit trail where email has been used, will be used for performance management and will also benefit the officers responsible for FOIA responses where data in regard to the number of VRRs received by each BOCU. 9
Address: Telephone: www.met.police.uk Your ref: Our ref: Dear [Victim name], With reference to your allegation of [enter offence type] which you reported to the police on [enter date of CRIS creation]. [A full investigation into the allegation has been completed / An Investigation into the allegation is still ongoing] [Delete as appropriate] however, at this time, a decision has been made by the Metropolitan Police Service (MPS) not to prosecute the suspect identified during the course of the investigation. The reason for this decision is as follows: [enter here the full rationale for taking no further action against the suspect, i.e. proven alibi during the interview, other evidential difficulties, etc]. Victim Right to Review The MPS must remind you that you have a right to have this decision reviewed; this is known as a police Victim Right to Review or VRR. The VRR gives you an avenue to appeal the decision made by the MPS not to prosecute the suspect. [Delete or retain the following sentence as appropriate]. [However, as the investigation is still ongoing, a review cannot take place until the investigation has concluded]. Should you wish for a review to take place, you must contact the MPS on the details above within 3 months of the date of this letter. This can be also be done by emailing: [BOCU Code]-vrr@met.police.uk. The review, if requested, will be conducted by a police officer who is senior in rank to the person who made the original decision. This reviewing officer will be independent of the original investigation and will consider many factors before completing the review. Once they have completed the review, they will contact you and explain their findings. This reviewing officer will inform you as to the outcome, will explain to you what will happen next and also inform you as to your further rights to appeal should you wish. Yours sincerely, [Enter your name here]