Lord Advocate’s Rules: Review of a decision not to prosecute – section 4 of the Victims and Witnesses (Scotland) Act 2014

The Crown Office and Procurator Fiscal Service (COPFS) is Scotland’s prosecution service. We receive reports of alleged crimes from the Police and other agencies such as the Health and Safety Executive, the Television Licensing Authority, local authorities, and many others. We then take decisions, based on the evidence available, and in the public interest, on whether to prosecute.

If you are the victim of a crime, we understand the impact this can have for you, your family and your way of life. That’s why you have a right to ask us for information about the decision made in your case, to have a say in what happens, and to ask us to review some decisions not to prosecute when the decisions can be changed.

If you are the victim in a case reported to us, you have a right to ask us to review a decision not to take action in the first place or to stop or discontinue a case after a case has started in court.

We can only review decisions that are taken by us and cannot review decisions made by the court. We will only review cases under this policy where the decision could be changed. Where the decision cannot be changed a request for a review will be dealt with under our Complaints and Feedback policy.

A victim can ask for the review of a decision made on or after 1 July 2015 not to
prosecute a case reported to us.

This will apply to decisions:

• to take no action in a criminal case reported by Police Scotland or other
  reporting agency; and
• to stop or discontinue a case once court proceedings have been started. Prosecutions start when a complaint or Petition has been served on the accused

Some decisions are not included in the right to review. These are:

• where a court has made a decision in a case including where a case ends because a judge has decided during a trial that there is not enough evidence to continue; and where a judge or jury have acquitted the accused by delivering a verdict of either “not guilty” or “not proven”
• where a charge is stopped or discontinued but another substantial and
  significant charge with the same victim continues
• where a charge changes but court proceedings for other substantial and
  significant charges with the same victim continue
• where a plea has been accepted by us
• where a case has been dealt with by the use of a Direct Measure such as a warning letter or fiscal fine, without court proceedings; or where the case has been referred to the Children’s Reporter to deal with

In some situations, we may not review a case where the victim has indicated a wish that no action is taken or that a prosecution is stopped.

On some occasions, we may have told the accused or their solicitor that the accused will not be prosecuted for a particular matter. If that is the case, we cannot prosecute the accused for that matter and so the decision cannot be reviewed.

You can contact us to find out more about such decisions and get an explanation. If you are unhappy about these decisions, you may still be able to make a complaint through our Complaints and Feedback policy about a decision made by us.

A victim of a crime reported to us by the Police or other specialist reporting agency can apply for a review of a decision by us not to prosecute or to stop a prosecution.

A victim is defined as someone who has suffered harm, including physical, mental or
emotional harm or economic loss directly caused by a criminal offence. This includes family members of a person whose death was directly caused by a criminal offence, and who have suffered harm as a result of that person’s death.

Businesses, companies and other organisations which are victims of a crime are also included under this policy.

If the victim is a child whose age or circumstances mean that they are unable to request the review themselves, the application can be made by a parent or carer on their behalf.

If the child is able to, they can apply for a review themselves if they wish, or can make an application through a parent or carer, though we will need the child’s consent for their adult to progress the request on their behalf.  Their consent does not have to be in writing. 

Where appropriate, we will contact the child to make sure that they understand the review process and its potential consequences, obtain their views, and ensure that they are happy for their adult to progress the request of their behalf. 

Where a child applies for a review for themselves, we will contact them to ensure that they understand the review process and its potential consequences, obtain their views, and we will consider whether it’s in their best interests for them to progress the review themselves, or whether they should have the support of an adult.

This is in line with their rights under the United Nations Convention on the Rights of the Child (UNCRC).

If the victim is 18 or older, another adult can still request a review on their behalf, but we will usually need the victim’s written permission for this.

Please tell us as quickly as possible, normally within one month of the date you learn the decision from us. Delay in asking for a review can affect what action we can take if a different decision is made by us following the review.

You have the right to get information about your case. If you have not heard anything about your case three months after reporting it to the police, you can contact us to get information.

Sometimes you may simply wish to know why a decision was made before you ask us for a review.

In some cases our Victim Information and Advice (VIA) service may already have been
in contact with you about your case. If so, please get in touch with them for further information.

If VIA have not previously been in touch, you can contact our Enquiry Point to get more information.

If you are still not satisfied with the decision once you have been given the reason, you
can ask for a review. 

More information about how we make decisions can be found in our Prosecution Code.

We need sufficient information to allow the correct case to be identified and reviewed.
your application for review should be made using our website form. Assistance will be
provided if required to complete the form. This should include the following information:

• The full name, address and date of birth of the victim
• The name of the accused, if known, or the date and place where the crime took place and the nature of the crime
• The police or our reference number, if you have it (this is normally found on the top right hand side of any letter sent by us)
• Anything else you would like us to take into account when we are carrying out the review. For example, any new information you have, the impact this
  incident had on you including any physical or financial consequences etc.

Applications for review will be dealt with by COPFS Response and Information Unit
(RIU). The application for review should be emailed to RIU@copfs.gov.uk with the
subject “Right to Review”; or sent by post to:

“Right to Review”
Response and Information Unit
Crown Office
25 Chamber Street
Edinburgh
EH1 1LA

If you have any difficulty in completing the application form, you can get help and advice
from Victim Support Scotland by calling them on 0345 603 9213 or visiting their website
- www.victimsupportsco.org.uk

You can also contact us on 0300 020 3000 or visit your local Procurator Fiscal’s Office and
you will be able to get help and advice in completing the form. You can find your
nearest office using ‘Find a local COPFS office’ search function on the main page of our
website.

The Reviewer will be a lawyer who was not involved in the original decision. They will consider the case papers which may include: a Police Report, statements from witnesses, evidence such as medical reports and other reports, and other documents.

The Reviewer will consider the available papers and obtain any further information which is required in order to make the decision.

If the request is made by on behalf of a child, where appropriate, the Reviewer will contact them to make sure that they understand the review process and its potential consequences, obtain their views, and to ensure that they are happy for their adult to progress the request of their behalf. Where a child applies for a review for themselves, we will contact them to ensure that they understand the review process and its potential consequences, obtain their views, and we will consider whether it’s in their best interests for them to progress the review themselves, or whether they should have the support of an adult.

The Reviewer will consider if the decision not to prosecute the case was reasonable having regard to all the circumstances and in line with our Prosecution Code and our prosecution policies.

Once the review is complete, the Reviewer will write to you to explain their decision. This letter will tell you:

• Which documents were considered in the review
• Whether any of our prosecution policies were considered during the review (some of these policies are confidential and so the full details may not be made available)
• Whether any previous court decisions were considered during the review (in some cases a court will have made a decision about a similar matter and that case may be taken into account by the reviewer when reaching a decision)
• The decision made by the reviewer and the reasons for that decision. You will be given as much detail as it is appropriate for us to give you

In many cases, you will be told the review decision within 20 working days of your application for a review.

However some cases are very complex and a review may take longer than 20 working days to complete. In those cases, we will write to you within 20 working days advising you of how long the review will take and when a decision is likely to be available.

If the Reviewer decides that the case should have been prosecuted, or that the prosecution should not have been stopped, you will be advised whether the case will now be prosecuted. If a prosecution is still an option, we will start court proceedings as soon as possible.

There may be some cases where we will ask to meet with you to discuss the options before a final decision about prosecution is taken or to discuss the outcome of a review.

In some cases, a prosecution may no longer be possible. This may be for legal reasons such as where time limits set down in law apply to a case, or where, due to the passage of time, we consider the court may regard it as unfair to start another prosecution.

If the Reviewer upholds the original decision not to prosecute as reasonable, or decides that the decision was not reasonable but that a prosecution is no longer possible, then there is no further right of review or appeal.

If your review is successful and a prosecution is started but is then discontinued, you may also have the right to a review at the stage the case is discontinued.

If you are unhappy about the Review itself you can still make a complaint about the handling of the review within six months of you being told about the decision.