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Home » Legal Resources » Legal Guidance » D to G » Direct Communication with Victims

Direct Communication with Victims

Introduction

When the Direct Communication with Victims initiative was launched in 2001 it represented a key change in responsibility for the Crown Prosecution Service. As a result of the recommendations in the Glidewell and Macpherson Reports, the CPS took over the responsibility to communicate any decision to discontinue or alter the charge directly to the victim. This responsibility previously lay with the police.

The original CPS DCV Intranet Guidance document (version 1.0) was published to assist prosecutors and caseworkers in taking on their new responsibilities.

Since the implementation of the original DCV scheme significant changes have taken place in the way that the CPS and other key Criminal Justice Agencies are required to engage with victims (and witnesses).

The Victim, The Code for Crown Prosecutors and the Core Quality Standards

On 28 January 2013, the 7th edition of The Code for Crown Prosecutors was published. Section 4 of the Code sets out the relationship between the prosecutor and victim. Paragraph 4.12(c) states that when deciding the public interest, prosecutors should consider 'the circumstances of and the harm caused to the victim'. The paragraph goes on to say:

'The circumstances of the victim are highly relevant. The greater the vulnerability of the victim, the more likely it is that a prosecution is required. This includes where a position of trust or authority exists between the suspect and victim'.

'A prosecution is more likely if the offence has been committed against a victim who was at the time a person serving the public'.

'Prosecutors must also have regard to whether the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics. The presence of any such motivation or hostility will mean that it is more likely that prosecution is required'.

'In deciding whether a prosecution is required in the public interest, prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim's family'.

'Prosecutors also need to consider if the prosecution is likely to have an adverse effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence. If there is evidence that prosecution is likely to have an adverse impact on the victim's health it may make a prosecution less likely, taking into account the victim's views'.

'However, the CPS does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest'.

On 25 March 2010, the 1st edition of the Core Quality Standards was published. The Code for Crown Prosecutors and the Core Quality Standards let the public know what prosecutors do; how they take their decisions; and the level of service that the prosecution service is committed to providing in every key aspect of its work. Standard 8 of the Core Quality Standards sets out how the CPS will explain decisions to victims when we stop or substantially alter the charge. Paragraph 8.2 states:

"Where a prosecutor decides to stop a case or to make any substantial alteration to the charges faced by the defendant, he or she writes to the victim within a strict time limit to explain the reasons for his or her decision. The letter is tailored to the needs of the victim and the specific circumstances of the case".

No Witness No Justice

From April 2004, the No Witness No Justice initiative has seen joint CPS/Police Witness Care Units established across England and Wales, providing victims and witnesses with a single point of contact, delivering enhanced care and support.

Although the work of Witness Care Officers does not affect the responsibilities of the decision-making lawyer, under the provisions of the Victims' Code (see below), they are responsible for providing information to victims about the progress and outcome of their case.

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The Prosecutors' Pledge

In October 2005 the Prosecutors' Pledge, launched by the Attorney General, included a specific public commitment to DCV.

  • Wherever there is an identifiable victim the CPS will inform the victim where the charge is withdrawn or substantially altered

The Code of Practice for Victims of Crime

The Code of Practice for Victims of Crime (the "Victims' Code") came into effect on 3 April 2006 building on many of the obligations in the 1996 Victims Charter. The Victims' Code provides victims with a statutory right to minimum standards of service for the first time. CPS responsibilities in relation to Direct Communication with Victims are outlined in section 7 of the Victims' Code. The obligations affecting DCV are set out in full in section 4 of this guidance.

Victims of crime now have a right to seek redress should they feel their service providers have not complied with their obligations. In the first instance a victim should complain to the agency involved. The Victims' Code provides that if complainants are still dissatisfied they can ultimately take their case to the Parliamentary Ombudsman.

General

As a result of these changes and the commitment of the CPS to provide a high standard of service to both victims and witnesses, it is very important that prosecutors and caseworkers understand and deliver the DCV obligations. This guidance is intended to support that process.

This guidance takes into account the changes in process brought about by the implementation of Statutory Charging, No Witness No Justice and the Victims' Code.

Whilst the guidance is intended to be accurate and represent good practice, it is not the final word on communication with victims.

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Summary

All cases with an identifiable victim should be identified, using the flagging functions available on the Casework Management System (CMS). In addition early identification of vulnerable or intimidated victims is crucial and should be recorded on CMS.

The definition of a victim has been extended by the Code of Practice for Victims of Crime.

  • any person who has made an allegation to the police, or had an allegation made on his or her behalf, that they have been directly subjected to criminal conduct under the National Crime Recording Standard (NCRS);
  • and also includes bereaved relatives or partners in homicide cases; parents where the primary victim is the child; police officers; a family spokesperson; and businesses, providing a named contact.

A letter should be sent to the victim in the following circumstances:

  • When a Crown Prosecutor takes the decision not to bring any proceedings following receipt of a full evidential report and other than during a discussion with the investigating officer.
  • When a charge is discontinued or withdrawn. 
  • When no evidence is offered and the charge is dismissed.
  • When a charge has been discharged section 6 (1) on our application because there is insufficient evidence or it is not in the public interest to proceed. 
  • When a charge has been discharged at committal because we are unable to proceed and a decision is then taken not to recharge the offence. 
  • When the Crown Court orders that a charge lie on file.
  • When there is a substantial alteration to a charge. 
  • When a CPS lawyer makes a decision that a case will not proceed to charge under the statutory charging scheme, where that decision is based on a full evidential report and other than during a discussion with the investigating officer.

Substantial alteration of charge means:

  • a change in charge which, in the opinion of the Crown Prosecutor, alters the overall seriousness of the case or which the victim is likely to perceive as altering the overall seriousness of the case and which is likely to affect the sentence the court would impose (if the defendant were convicted of all charges). In determining seriousness, Crown Prosecutors will take into account the maximum penalty permissible by law.

A letter is not required in the following circumstances:

  • When, following discussion between an investigating officer and a Crown Prosecutor, the decision is taken not to bring any proceedings for a relevant criminal offence.
  • When a defendant is acquitted of a charge. 
  • When the court finds that there is no case to answer. 
  • When the magistrates discharge an offence under section 6(1) of the Criminal Justice Act 1967 after hearing the prosecution evidence as examining magistrates or after ordering us to commit the case there and then and we are not able to do so. (The latter case assumes that the offences are recharged and the committal subsequently proceeds but if we decide, at any stage, not to re-institute proceedings, a letter should be sent to the victim). 
  • Where the victim provides a clear unequivocal indication that he/she does not wish to receive a letter.

Communication with the victim by telephone may be considered appropriate in some cases.

  • This may arise where the victims preferred means of contact is by telephone and the lawyer considers that this method of communication is more appropriate than a letter. In all cases the person making the telephone call should ensure that this method of communication will be safe for the victim. 
  • In view of the one day time limit introduced for communications with vulnerable and intimidated victims, the initial contact, advising the victim of the outcome may provide the basic information and may be by telephone. The communication may be undertaken by the Witness Care Officer, with a follow up letter from the lawyer within five working days which provides a detailed explanation.

A meeting must also be offered to the victim in certain cases:

A meeting is not required when, following discussion between an investigating officer and a Crown Prosecutor, the decision is taken not to bring any proceedings for a relevant criminal offence.

A meeting must be offered in the following classes of case where, following receipt of a full evidential report (and other than during a discussion with the investigating officer as above) a decision is taken not to bring any proceedings:

  • Cases involving a death. 
  • Child abuse. 
  • Sexual offences. 
  • The offence was aggravated by hostility based on disability. 
  • Racially/religiously aggravated offences. 
  • Cases with a homophobic, transphobic or sexual orientation element. 
  • The offence was motivated by hostility based on age.

A meeting may be offered to the victim, at the prosecutors discretion, in any other case.

A meeting should not normally be held until the case has been concluded unless the lawyer takes the view that the circumstances mean that a meeting ought to be held during the currency of the case. Prosecutors should note that where a death has occurred and the victims family has requested a meeting, this should not be delayed until the conclusion of the case unless there are exceptional and justifiable reasons for doing so.

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To whom should a letter be addressed?

General

A letter should be sent in any case which falls within the scheme where there is an identifiable victim. A victim is defined In the Code of Practice for Victims of Crime, as follows:

"Any person who has made an allegation to the police, or had an allegation made on his or her behalf, that they have been directly subjected to criminal conduct under the National Crime Recording Standard (NCRS)"

This definition also includes bereaved relatives or partners in homicide cases; parents where the primary victim is the child; police officers; and a family spokesperson, entitled to receive services under the Code, where the victim is incapacitated as a result of disability.

The position of businesses under the Code is slightly different from the previous position for DCV. Under the provisions of the Code, if a business provides a named contact, it is entitled to services. This would therefore bring a larger business within the DCV scheme, if it provides the named contact.

Children

If the victim is a very young child and both parents are defendants then no letter should be sent. It would normally be inappropriate to write to a child under twelve. If the victim is a child of twelve or over it may be appropriate to write to him or her as well as the parent/carer. If the victim is a child looked after by the local authority, the letter should be sent to the guardian and, if sufficiently old, the child.

However, it is important to note that the parents or carers do not have an automatic entitlement to confidential information relating to their child if the child is deemed capable of sufficient understanding (Gillick). It is also important to consider the childs rights under Article 8, (the right to respect for private and family life includes the right to have personal information, such as letters, kept private and confidential).

An assessment should be made of the age and understanding of the child. Prosecutors should refer to the file to ascertain the level of parental/carer involvement. For example, they may have countersigned the childs statement, or made a statement of their own. The parent/carer may or may not have been present during the video recording of the childs evidence. If there is any doubt, the prosecutor should contact the officer in the case.

In relation to older children the prosecutor should write to the child and include a sentence in the letter suggesting that they show it to their parents. A separate letter can be sent to their parents stating that a decision has been made and that their child has been sent a letter detailing the reasons for the decision. Prosecutors need carefully to balance the rights of the child with their need for parental support and the rights/obligations of the parents to provide that. In sensitive cases for example, where the parents or carers are fully aware of the nature of the allegation, the prosecutor may feel it is appropriate to provide them with a copy of the letter. Each case must be decided individually on its merits based on the information on the file.

In a case where the Witness Care Unit has been involved with the victim, the Witness Care Officer who acts as the single point of contact may well have useful information about the child and his or her level of understanding, wishes or relationship with their parent or carer. The prosecutor should consider this information when making a decision.

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Consideration of the effect upon receipt

In order to avoid unnecessary distress to the victim, the letter should not be sent on a Friday, if at all possible, because it is likely to be received on a Saturday when sources of support or information are unlikely to be available. Care should also be taken to avoid the letter being received on the anniversary of the incident. This is not altered by the introduction of The Code of Practice for Victims of Crime but you must balance this with the statutory obligation to notify the victim within one working day if he or she is entitled to receive an enhanced service under the provisions of the Code as a vulnerable or intimidated victim. The details of persons entitled to receive enhanced services are set out in section 4 of this guidance.

In domestic violence cases, it is extremely important that the victim is notified quickly of decisions to discontinue or substantially alter the charges, due to the implications that the decision may have upon a victim's safety. When writing to the victim, it is important to be sensitive to the possibility that the defendant may have access to the letter. It is also good practice to set out in the letter information to enable the victim to access appropriate support services, such as helplines and local services.

Writing to victims in prison

Where the victim is a prisoner you should write to him/her in the ordinary way to explain the decision. You should also write to the prison governor explaining that you have written to the prisoner to explain the reasons for a decision to stop or substantially alter a charge in relation to an offence in which he or she was a victim. You should not provide any more detail than this except to say what the offence was.

The letter to the prisoner should be sealed in an envelope and that should be enclosed within the envelope containing the letter to the prison governor. It is then a matter for the prison to decide whether or not the letter should be opened prior to being handed to the prisoner. In practical terms informing the prison governor of the nature of the letter may assist the prison in assessing whether or not there are likely to be any risks to persons or property when the prisoner reads the letter and becomes aware of the decision.

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When a letter should be sent

It is the duty of the CPS to ensure that victims are informed of charging decisions taken by the CPS.  However, in cases where, following discussions between an investigating officer and a prosecutor, the decision is taken that there is insufficient evidence to bring any proceedings for a relevant criminal offence, it will be the responsibility of the police to notify the victim of this fact (see Paragraphs 5.20 and 7.2 of the Code of Practice for Victims of Crime).

The CPS will provide explanations of its decisions not to proceed or to substantially alter charges in all cases with an identifiable victim.  The prosecutor will offer a face to face meeting in certain categories of case.

The only exception is where the prosecutor has been made aware that the victim does not want to be informed of the decision. Although this is likely to be rare, there are cases where the victim will not want certain people to know that he or she is the victim of a crime and has made a statement to the police.

The commitment to communicate our decisions to victims was formally set out in the Prosecutors' Pledge, launched by the Attorney General in October 2005. This was followed by the introduction of the Code of Practice for Victims of Crime (Victims' Code) in April 2006, which outlines the services that victims of crime can expect from all criminal justice agencies, provides definitions of vulnerable and intimidated victims and places statutory obligations upon the CPS to comply with the requirements of DCV.

Although the Victims' Code mentions only those cases where the decision is based on the sufficiency of the evidence, the CPS is committed to providing an explanation in all appropriate cases, including where the decision is made on public interest grounds.

The Code Practice for Victims of Crime

The obligations set out in the Victims Code that affect the way we operate our DCV scheme are:

  • 7.2 It is the duty of the CPS to ensure that victims are informed of charging decisions taken by the CPS. In cases where, following discussions between an investigating officer and a Crown Prosecutor, the decision is taken that there is insufficient evidence to bring any proceedings for a relevant criminal offence it will be the responsibility of the police to notify the victim of this fact
  • 7.3 Where a Crown Prosecutor takes the decision that there is insufficient evidence to bring any proceedings following receipt of a full evidential report and other than during a discussion with the investigating officer, it will be the responsibility of the CPS to notify the victim of this fact within one working day for vulnerable or intimidated victims and within five working days for all other victims
  • 7.4 If, after an offender has been charged and following case review, the CPS takes a decision to substantially alter or drop any charge, the CPS must notify the victim within one working day for vulnerable or intimidated victims and within five working days for all other victims. In all other circumstances, the police will be responsible for notifying victims of decisions in cases
  • 7.5 The Prosecutor may decide in accordance with CPS guidance that it is inappropriate or unnecessary in the particular circumstances to notify the victim, or that for legal reasons, no explanation beyond setting out the tests in the Code for Crown Prosecutors can be given. In such cases the reasons for providing no information or only limited information must be recorded.
  • 7.6 The CPS has an additional obligation set out in paragraph 7.7 below in relation to cases involving death allegedly caused by criminal conduct, such as murder, manslaughter, dangerous driving or careless driving, cases of child abuse, sexual offences, racially or religiously aggravated offences and offences with a homophobic or transphobic element.
  • 7.7 The CPS must offer to meet the victims of the types of cases identified in 7.6 to explain a prosecution decision in the following circumstances:
    • 7.7.1 where the prosecutor decides not to bring any proceedings in respect of criminal conduct, following the provision of a full evidential report by the police to the CPS for a CPS decision on charge (in accordance with guidance issued by the Director of Public Prosecutions, and other than during a face to face consultation with an investigator);
    • 7.7.2 where a decision is made to drop or substantially alter charges in respect of relevant criminal conduct; unless the prosecutor concludes that in all circumstances a meeting ought not to take place in which case he or she must record in writing the reason for that conclusion.

Vulnerable and intimidated victims are entitled to an enhanced service under the Victims' Code. The definitions of vulnerable and intimidated are based on those given by sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999. For the purposes of the Victims' Code obligations, the decision as to whether a victim is vulnerable or intimidated relates to the position at the time of the offence, not at the time of the hearing of the case.

The definitions contained in the Victims Code are set out in full below.

Vulnerable Victims

  • 4.2 For the purposes of the Code a victim of crime is eligible for an enhanced service under the Code if (a) under the age of 17 at the time of the offence or (b) the service provider considers that the quality of evidence given by the victim is likely to be diminished by reason of any circumstances falling within 4.3
  • 4.3 The circumstances falling within this section are (a) that the victim suffers from mental disorder within the meaning of the Mental Health Act or otherwise has a significant impairment of intelligence and social functioning, (b) that the victim has a physical disability or is suffering from a physical disorder
  • 4.4 In determining whether a victim falls within the definition in paragraph 4.3 the service provider must consider any views expressed by the victim.
  • 4.5 In this section references to the quality of a victims evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose coherence refers to a victims ability in giving evidence to give answers which address the questions put to the victim and can be understood both individually and collectively.

Intimidated victims

  • 4.6 For the purposes of the Code a victim of criminal conduct is eligible for an enhanced service under the Code if the service provider is satisfied that the quality of evidence given by the victim is likely to be diminished by reason of fear or distress on the part of the victim in connection with testifying in the proceedings.
  • 4.7 In determining whether a victim falls within the definition in paragraph 4.6 the service provider must take into account, in particular (a) the nature and alleged circumstances of the offence to which the proceedings relate; (b) the age of the victim; (c) such of the following matters as appear to the service provider to be relevant, namely the social and cultural background and ethnic origins of the victim, the domestic and employment circumstances of the victim and any religious beliefs or political opinions of the victim; (d) any behaviour towards the victim on the part of the accused, members of the family or associates of the accused, or any other person who is likely to be an accused or a witness in the proceedings.
  • 4.8 In determining whether a victim falls within the definition in paragraph 4.6, the service provider must consider any views expressed by the victim.
  • 4.9 The complainant in respect of a sexual offence or domestic abuse and the relatives of those who have died as a result of criminal conduct are eligible for an enhanced service under the Code unless the victim has informed the service provider of the victims wish not to be so.

It is important to note that the effect of this last obligation is that all victims of domestic violence and sexual offences must be treated as intimidated for the purposes of the Victims' Code, unless they notify us that they do not wish to be so treated. The use of the word "eligible" does not mean that it is optional for us. The relatives of a victim who has died are to be treated as intimidated for the purposes of the Code and enhanced service.

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Timescales to send a letter

Under the DCV scheme letters to victims should be sent within 5 working days of the decision. As already seen, the introduction of the statutory Code of Practice for Victims of Crime imposes a different timeliness target for vulnerable and/or intimidated victims, where a letter must be sent within one working day of the decision being made. It is good practice for DCV letters to be sent by first class post.

If it is not practical to send a letter which gives the full explanation for the decision within one working day, there are three other ways in which our statutory obligations can be met.

  • Send a letter within one working day, notifying the victim of the decision, and telling them that a letter containing a full explanation will follow within five days.
  • If the decision is made at court and the advocate endorses the file that an explanation has been given to the victim whilst at court, then the full written explanation may follow, within five days.
  • If appropriate the initial notification may take place by telephone, having first ascertained that this is safe for the victim. The call could be made by the prosecutor, the caseworker or Witness Care Officer but again must indicate that a full explanation will follow within five days.

In certain cases, it will be appropriate for the prosecutor or other relevant person to use a telephone or other means of communication to immediately inform the victim of the decision. This is particularly relevant where a decision is made at court resulting in the defendants bail conditions being lifted or the defendant being released from custody. In such cases, in the interests of speed and the safety of the victim, it may be appropriate to arrange for the investigating officer to inform the victim of the decision.

Decisions not to proceed with Charge

Letters should be sent, within the timescales set out in the Victims' Code, after the following decisions are made:

  • when a CPS prosecutor makes a decision that a case will not proceed to charge under the statutory charging scheme, where that evidence is based on a full evidential report and there is no discussion with the investigating officer (see also Charging Manual) 
  • to discontinue the case 
  • to discontinue one or more of the charges but to pursue others 
  • to offer no evidence or withdraw all charges 
  • to apply to the magistrates court to discharge a charge due for committal - this will include a case where key evidence is missing or late and the prosecutor applies to discharge the committal, and does not intend to recharge. It also includes cases where the court refuses an adjournment requested by the prosecutor and the decision is then made that the offences should not be recharged. It does not include cases where the court finds that there is insufficient evidence to commit for trial, after full argument 
  • to offer no evidence or withdraw one or more of the charges but to pursue others. This includes accepting pleas to the majority of the offences and dropping the remainder for public interest reasons, even if the victim is the same person in all the charges; and 
  • when the Crown Court orders that a charge lie on the file.

When a prosecutor takes a decision that the suspect should be cautioned, conditionally cautioned or to agree a bind over for the defendant in place of a criminal conviction, these are all decisions that fall within the scheme and require a letter. All these examples are decisions not to prosecute or to stop a charge.

If the decision is taken at the pre-charge stage, no letter is required if there is a discussion between the prosecutor and investigating officer. However, you will wish to consider in consultation with the officer, particularly in complex or sensitive cases, whether you should take responsibility for providing the written explanation and, where applicable, offer a meeting in your letter. This also applies if the charge you have advised is significantly less serious than the victim (or their family) may have expected.

Where a letter is sent to a victim following a decision not to proceed to charge, the name of the suspect should not be referred to in the communication.

CPS Direct Charging Decisions

Paragraph 7.2 of the Code of Practice for Victims of Crime imposes a duty upon the CPS to ensure victims are informed of charging decisions. Where there has been either face-to-face or telephone discussion between the investigating officer and prosecutor then it is the duty of the police to inform the victim of the decision. CPS Direct charging decisions involve telephone engagement with the investigating officer and, in accordance with paragraph 7.2, responsibility to inform victims of the decisions in such cases rests with the police.

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Withdrawal by the Victim

It is still necessary to write a letter even if the victim no longer wishes to pursue his or her complaint. In such cases, it is good practice to include a reference in the letter to the views of the victim.

Substantial Alteration to a Charge

This is defined as:

"A change in the charge which, in the opinion of the Crown Prosecutor, alters the overall seriousness of the case or which the victim is likely to perceive as altering the overall seriousness of the case and which is likely to affect the sentence that the court would impose (if the defendant were convicted of all charges). In determining seriousness, Crown Prosecutors will take into account the maximum penalty permissible by law."

The following text offers clarification of this definition.

Alteration

The overall seriousness will usually be reduced following an alteration of a charge, although it may be increased. In either instance a letter should be written.

The Maximum Penalty

The definition requires Crown Prosecutors to take into account the maximum penalty when assessing whether or not the overall seriousness of the case has been affected. This is not the only criterion, but is simply one factor to be taken into account. For example, Section 20 and Section 47 of the Offences Against the Person Act 1861 are each punishable by up to five years imprisonment; In practice, Section 20 is usually treated as the more serious offence likely to attract a higher penalty. Substituting a Section 47 for a Section 20 would therefore amount to a substantial alteration of the charge. If a Section 47 offence is replaced, for example, by affray (Section 3 of the Public Order Act 1986), this would plainly require a letter. Not only does affray carry a lesser maximum penalty but also it changes the nature of the allegation. Similarly, if substituting an offence of handling or receiving stolen goods for an offence of theft, although the penalty for handling stolen goods is greater (fourteen years) than theft (five years), the nature of the allegation is different. The defendant is no longer the person who is alleged to have been responsible for taking the victims property, but a person who has been involved after the property was stolen.

Attempts

When a substantive charge is altered to a charge of attempting to commit that offence, this will inevitably affect the sentence the court is likely to impose if the defendant is convicted. A letter should therefore be sent to the victim.

Conspiracy

When a conspiracy charge is replaced by one or more substantive offences, a letter will be required if the alteration is likely to affect the sentence.

Aiding, abetting and incitement

Altering a substantive charge to one of aiding abetting, counselling or procuring or to incitement is likely to reduce the sentence even though the maximum available penalty remains the same. A letter should therefore be written.

Consent cases

Altering a charge which requires the consent of the Attorney General or the Director of Public Prosecutions to one that does not require consent does not, of itself, mean that the victim should be sent a letter.

Racially/religiously aggravated offences

Racially/religiously aggravated offences charged under sections 29-32 of the Crime and Disorder Act 1998 (CDA) have greater maximum penalties than the non-aggravated versions; a letter should be sent to the victim when decision is made to proceed with the basic offence, rather than in its aggravated form.

All offences other than those charged under Sections 29-32 of the CDA 1998 are covered by section 145 of the Criminal Justice Act 2003. This requires a court to treat racial aggravation as a factor increasing the seriousness of the offence and thus increasing the sentence. On occasion it may not be possible to invoke section 145 because, for example, the evidence proving the racist element ceases to be available. In such a case, because the higher sentence is not available to the court, a letter should be sent to the victim even though there has been no alteration to the charge.

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Offences aggravated by disability or sexual orientation

Section 146 of the Criminal Justice Act 2003 imposes a duty on the court to increase the sentence for any offence aggravated by hostility based on the victims disability (or presumed disability) and for any offence aggravated by hostility based on the victims sexual orientation (or presumed orientation).If a decision is taken about the case which has the result that evidence of aggravation will no longer be put before the court (therefore reducing the seriousness of the case and the sentence), a letter should be sent to the victim, even though there is no alteration to the charge.

Alternative limbs

When there is an alteration to the way in which a charge is pleaded, such as from receiving stolen goods to assisting in the retention, removal, disposal or realisation of stolen goods, a letter need not be sent unless the prosecutor considers that the alteration will affect the sentence a court may impose.

There are exceptions however, and prosecutors will have to exercise discretion. For example, altering a charge of burglary with intent to rape to one of burglary with intent to steal would require a letter. Similarly, altering burglary and theft to burglary with intent to steal may require a letter if, for example, the alteration would have an impact on whether compensation could be sought.

Substitute charges

When a charge is substituted by one which is more appropriate, but the facts of the case remain the same and there is no change in the sentencing options available to the court, it is a matter for the prosecutor whether a letter to the victim is necessary.

When specimen charges are altered - for example in a complex fraud case - without affecting the overall seriousness of the case or likely sentence, a letter will not normally be necessary. If, however, the case involves a number of victims and the result of the alteration is that no charges or counts relating to one or more of the victims proceed, a letter should be sent to the victim(s) affected by the decision.

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General

There may be circumstances that do not fit neatly within the definitions of stopping or substantially altering a charge and that are not covered in this guidance. The definition of substantial alteration should not be restrictively interpreted so as to exclude letters to victims and account should be taken of the effect of the crime upon the victim. The overriding consideration should be the needs of the victim to have accurate and timely information about their case. If a prosecutor is uncertain as to whether a DCV letter is required, they should exercise discretion in favour of writing a letter.

Legal issues

Since the incorporation of the European Convention on Human Rights into English law, we have had to consider the concept of privacy under Article 8 of the Convention in addition to the long-standing principle of confidentiality. While the rights enshrined in Article 8 embrace situations to which the principle of confidentiality does not apply, in the context of releasing information provided by others in confidence, both principles are applicable. Indeed, it may be unhelpful to regard them as separate principles; in due course the courts may subsume confidentiality into the concept of privacy.

In principle, the material that we receive to enable us to carry out our statutory functions should be treated by the CPS as having been supplied to us only for those purposes. This is the case whether it has been supplied by the police or another source, for example, the defendant or the defendants solicitor. For this reason as well as the need to protect the legitimate interests of individuals, it is necessary to take care when considering whether to disclose prosecution material, including witness statements, to a victim.

English law has established a number of principles which should apply before the contents of a statement or other material provided to us can be disclosed to a third party.

European Convention law has introduced the concept of proportionality; any interference with the right to privacy in this case the right not to have the contents of a statement or other material disclosed to a third party must be proportionate to the legitimate aim pursued. In this context the legitimate aim is informing the victim of the reasons for discontinuing or substantially altering a charge.

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Communicating decisions to victims

While explanations of why charges have not been proceeded with or have been substantially altered would not normally include the supply of statements or other documents, it would often mean disclosing certain material contained within those statements or documents.

The following principles should be applied in deciding whether material should be disclosed to victims:

  • The person requesting the information must have a genuine interest;

Victims have a genuine interest in knowing the reasons why cases concerning them have been discontinued or charges substantially altered.

  • The proceedings to which the statements or documents relate should be completed;

Where proceedings have been concluded, explaining the reasons for a decision by reference to a statement or other document should not ordinarily pose a problem. However, even when proceedings have, on the face of it, been concluded, they can be resurrected by the prosecution or appealed by the defence and re-tried. For this reason, explanations should be limited to telling the victim no more than he or she should need to know in order to understand how we reached our decision.

Where a charge has been substantially altered or only one of a number of charges has been withdrawn and the proceedings are still on going, special care will be needed. Although decisions can and should be communicated to the victim, explanations must not prejudice the trial process or ongoing police enquiries.

  • The material provided is not sensitive;

In certain cases the decision not to proceed with a charge will be made as a result of reviewing material that is sensitive. For example, a statement may include reference to an informant which is subject to public interest immunity; the defence may have provided us with a medical report upon which we have relied when reaching our decision. To explain the decision in any meaningful way would require some reference to the material that would breach the makers right to confidentiality as well as, in the former case, compromising his or her safety. Sometimes it may be difficult to do more than refer to the Code test applied. Careful thought will need to be given to how the decision is to be explained to the victim.

  • The consent of the maker of any statement should be obtained;

While the statement itself will not be disclosed, when communicating with a victim it will often be necessary to refer to information contained in a witness statement or to other information provided to the CPS by the witness. Obtaining the consent of the maker of the statement prior to disclosing information within the statement is not feasible if communication of our decisions is to take place expeditiously. In any event we already provide such information without the consent of the maker of the statement in the following circumstances:

  • when explanations are given in open court as to why a case has been stopped; 
  • when dealing with parliamentary correspondence and complaints; 
  • where the public interest requires that we provide the information to a third party, for example, in care proceedings.

In summary, therefore, none of the four principles in itself prevents a CPS prosecutor from referring to the contents of a statement or other material when explaining a decision to a victim.

However, before a decision is made finally to disclose the contents of a statement or a document, the prosecutor must consider Article 8 and decide whether or not the legitimate aims of disclosure are proportionate to the interference with the makers right to privacy. For example, fully to explain why we decided to discontinue a case may mean revealing to the victim details of the defendants illness. However, to do so would amount to an interference with the defendants right to privacy, because the protection of personal data is of fundamental importance to the enjoyment of private and family life (Z v Finland [1997] 25 E.H.R.R. 371). This would not normally be outweighed by the victims right to know the reasons why a case was discontinued. In such circumstances, a limited explanation would be the most that could be provided.

This was acknowledged in the case of R v Director of Public Prosecutions ex parte Manning and another [2000] unreported (copy available from HQ library). The Lord Chief Justice stated that reasons for not prosecuting would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves.

Nevertheless, the court recognised that more detailed reasons for a decision not to prosecute could properly be given to victims as long as the above caveats were followed.

This approach is supported by the Attorney General's Guidelines on the Acceptance of Pleas first published in December 2000. Paragraph 5 sets out the following guidance:

"Where a case is listed for trial and the prosecution form the view that the appropriate course is to accept a plea before the proceedings commence or continue, or to offer no evidence on the indictment or any part of it, the prosecution should wherever practicable, speak with the victim or the victim's family, so that the position can be explained and their views and interests can be taken into account as part of the decision making process. The victim or victims family should then be kept informed and decisions explained once they are made at court."

Two aspects of the Prosecutors' Pledge, launched in October 2005 by the Attorney General apply to the provision of reasons to victims. The first aspect re-iterates the 2000 Guidelines:

"When practical seek a victim's view or that of the family when considering the acceptability of a plea"

The Pledge also specifically requires the prosecutor to: 

"Inform the victim where the charge is withdrawn, discontinued or substantially altered", with an explanatory note:

"You will be contacted by letter and informed as to the reasons that this course of action was taken. In certain circumstances you may also be offered the opportunity of meeting the prosecutor in person who will explain the decision".

The Code of Practice of Victims for Crime places our DCV obligations on a statutory footing but does not specifically refer to the provision of explanations for our decisions. This does not affect the requirement that we provide as full an explanation as possible in every case. The CPS obligations under the Code are set out in section 4 of this guidance, paragraph 1.

Guidelines

There is a general expectation that the CPS will provide reasons for decisions not to proceed with or to substantially alter a charge.

As a result the policy of the CPS is to provide as much information to a victim about a casework decision as is reasonable and appropriate. This will respect the legitimate interests of the victim to be informed about the case in which he or she is a complainant, promote openness in the public prosecution service we provide and promote public confidence in the CPS.

Those parts of a statement that fall into the category of sensitive material should not be disclosed, for example, material that might identify an informant or details of previous convictions.

Particular care should be taken when considering information of a personal nature relating to sexual or medical matters, personal relationships, sexual orientation, gender identity and so forth. It would not usually be appropriate, having regard to the right to privacy and the principle of proportionality, to disclose such information to the victim. If it is not possible to provide a satisfactory explanation without referring to the information, the victim should be provided with only a limited explanation which makes no reference to the sensitive information. It may be sensible to explain to the victim that a fuller explanation cannot be given due to reasons of confidentiality.

Where a charge has been substantially altered or only one of a number of charges has been withdrawn and the proceedings are still on-going, special care will be required when explaining the reasons to the victim. CPS explanations must not prejudice the trial process or ongoing police enquiries. For this reason, such explanations may have to be briefer than would be the case were the proceedings concluded.

Nothing we tell a victim is "off the record". If a victim asks for information that is confidential and to which he or she is not entitled, the prosecutor should refuse to provide it, even if the victim insists it will go no further.

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The Presumption of Innocence Article 6(2) and Defamation

Article 6(2) of the Convention provides in unqualified terms that everyone charged with a criminal offence has the right to be "presumed innocent until proven guilty according to law".

A defamatory imputation is one which, considered objectively, would "cause right-minded people to think the worse of the person about whom it is made". Defamatory suggestions may be conveyed expressly or by implication.

When explaining decisions not to proceed with or to substantially alter a charge to victims, prosecutors will have to give very careful thought to the way in which such explanations are given, so that the defendants guilt is neither implied nor expressed. In short, if the explanation of the decision not to proceed involves any suggestion (whether express or implied) that the defendant was guilty, the prosecutor may fall foul of Article 6(2) Keith Hall v United Kingdom [Application No.28772/95]) as well as defaming the defendant at the same time.

Guidelines

Any suggestion, whether express or implied, that the defendant is or is likely to have been guilty must be avoided. Do not, for example, indicate that the defendant is guilty but that the evidence is lacking.

There may be rare circumstances where it would not be possible to provide an understandable explanation to a victim, without making some reference to material which appears to suggest the guilt of the defendant. In such a case particular care should be taken to ensure that such a reference is as restricted as possible, as well as being presented fairly and in neutral language; and it should be stressed that the material referred to would not have been a sufficient basis for a finding of guilt at trial. If a reference in such terms would still involve unfairness to the defendant, it should not be made at all; and it should then be pointed out that a full explanation of the prosecutors decision cannot be given for legal reasons.

Defamation

To be defamatory, explanations need not go so far as suggesting in unambiguous terms, for example, that the defendant is guilty of a criminal offence; a suggestion in an explanation to a victim that a prosecution witness may have lied or be of poor credibility would be seriously defamatory.

However, if the statement is made in the pursuance of a legal, social or moral duty to a person who has a corresponding duty to receive it or interest in receiving it the defence of qualified privilege will be available, provided that the statement is not malicious and is made honestly. In such circumstances the statement will be protected for the common convenience and protection of society.

There is a clear duty on the CPS, now set out in the Prosecutors' Pledge and Code of Practice for Victims of Crime, to provide explanations for decisions to discontinue or substantially alter a charge. This is sufficient in principle to ground a defence of qualified privilege.

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Guidelines

The following guidelines should be followed when providing explanations to victims as to why a prosecution has been stopped or substantially altered:

  • the explanation should take reasonable account of all the circumstances of the particular case (including those of the alleged offender). Defamatory imputations should be avoided save where they are felt to be both integral and essential to the provision of a sufficiently informative explanation.
  • where a defamatory imputation is felt to be integral and essential to the provision of a sufficiently informative explanation, it should be presented as fairly and in as neutral language as possible. It should not be adopted as a statement of fact unless its accuracy is beyond doubt. If, for example, the imputation cannot be verified, if it is challenged or its accuracy is for any reason in doubt, or if it derives from an unreliable source, that should be made clear. 
  • victims and their families should receive a written explanation (followed, if requested, by a face to face meeting in serious or sensitive cases) in sufficient detail to inform them fully of the reasons for the decision. However, if this cannot be done without significant unfairness to other persons, or there are other policy considerations, then a skeletal explanation may be all that can be provided.

Caution is needed. This level of information would not normally be provided to the public at large, since a trial should take place in a court of law, not through press statements or otherwise in the media. However, a victim may make the information in the letter public, so careful drafting is required. Prosecutors are advised to avoid making potentially defamatory imputations wherever possible, especially where there would be any suggestion of dishonesty, lack of integrity or other serious misconduct.

In practical terms, the people most likely to be defamed are the defendant or witnesses. In the case of witnesses, the most common scenario is likely to be where, for one reason or another, a witness is felt to be of limited credibility: in such circumstances prosecutors should avoid stating why the witness lacks credibility but rather use a phrase along the following lines:

"On the available information, I am not satisfied that a court would accept that the evidence of the prosecution witnesses comes up to the very high standard of proof that is required in criminal cases."

Letters should always be addressed "Private and confidential".

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Judicial Review

When explaining a decision to a victim, prosecutors should be aware that the explanation provided will be examined very carefully and, if the victim decides to judicially review the decision, will form part of the grounds for claiming that the decision was perverse or erred in law.

For this reason, prosecutors must keep the possibility for misinterpretation or misunderstanding to a minimum. The explanation to the victim must, as far as it goes, accurately reflect the reasons for the decision set out in the review note.

Detailed guidance on judicial review is available in the Legal Guidance Appeals - Judicial Review of Prosecution Decisions.

Disclosure to the Defence of Letters written to Victims

The letters generated by the CPS to victims under the DCV scheme do not amount to unused material as defined by the Criminal Procedure and Investigation Act 1996.

DCV letters should not therefore routinely be disclosed to the defence, nor is there any need routinely to inform the defence that a letter has been sent to a victim. The defence ought to now be fully aware that we write to victims in cases where a charge has been discontinued or substantially altered.

Prosecutors and caseworkers should however be alive to the possibility that a victim may respond to a letter and in doing so reveal information that may undermine the prosecution case or assist the defence case (they may of course reveal information that is relevant to the prosecution case in which case the police should be asked to take another statement to that effect). In such circumstances the information should be disclosed to the defence, subject to any PII considerations.

The other circumstance in which the contents of the letter itself may become relevant is if the defence suggest to a victim in cross-examination that he/she has altered his/her evidence as a result of reading the letter sent explaining the prosecution decision. It may in such circumstances be necessary to disclose the letter to the defence during the trial, if only to show that there was nothing in the letter that could have caused the victim to alter his/her evidence.

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