A “draconian” practice that stops crime victims challenging last-minute decisions to drop their cases is leading to miscarriages of justice and must urgently be reformed, campaigners say.
Under the Victims’ Right to Review (VRR) scheme, victims can challenge decisions not to charge a suspect or to halt a prosecution. Successful appeals can lead to cases being reopened and may result in a conviction.
But the Observer has uncovered details of nine rape and sexual offence cases where the Crown Prosecution Service (CPS) offered no evidence shortly before trial, resulting in the case being closed and the defendant acquitted – before the victim could appeal.
In some cases, the CPS decision was later revealed to be flawed. One woman who found out her rape case was being closed just days before the trial was told it was because prosecutors had found text messages between her and the accused that undermined the case, when in fact they were from someone else with the same name.
In August, the CPS paid damages to a rape complainant after offering no evidence at trial following a defence claim of “sexsomnia”. A review found the decision was wrong and should have been challenged in court.
But once a defendant has been acquitted, double jeopardy rules prevent retrials – meaning victims can secure only an apology or, potentially, damages from the CPS if the decision is found to be wrong, rather than the chance to continue prosecution.
Following a cluster of cases, Dame Vera Baird, the former solicitor general and victims’ commissioner for England and Wales, has written to senior law officers to raise concerns about potential wrongful acquittals – and urged them to intervene.
In a letter sent on Friday to the attorney general for England and Wales, Lord Richard Hermer KC, and solicitor general, Sarah Sackman KC, Baird described the current CPS approach as grossly unfair and said it was “undermining a right guaranteed by the statutory Victims’ Code” by offering no evidence, leading to a permanent acquittal, before there had been time for a VRR to be completed.
“It is hard to see the public interest in finalising a disputed decision not to prosecute, whilst there is a live review which may overturn it,” Baird wrote. “The public should surely be protected from a potential offender, by resolving the VRR first, so that the CPS have a second opportunity to take him to court … It is a time for reflection on how this policy is causing injustice.”
Campaigners have long called for the approach to handling VRRs in “no evidence” cases to be reformed, arguing that the CPS should delay seeking acquittals until the review process has concluded.
Maxime Rowson, policy lead at Rape Crisis England and Wales, said: “It is utterly unacceptable that victim-survivors, who often spend years navigating the criminal justice system and awaiting a trial date, can have their case ended so finally, sometimes on the day of trial.
“We call on the CPS to end the draconian practice of offering no evidence, or at least to offer a victim-survivor the chance to appeal the decision before no evidence is offered, so that a case can continue if the appeals process finds in their favour.”
The CPS said decisions to offer no evidence were “rare and never taken lightly”. A spokesperson said: “In the vast majority of cases we get our decisions right first time … but the VRR scheme exists for victims to appeal in those instances where they don’t believe we have made the right decision.
“We recognise the profound impact that a decision to offer no evidence can have on victims, which is why we have introduced tougher checks for any such decision in rape or serious sexual assault cases, and we are going further to review the process for stopping these prosecutions post-charge.”
It added that only a small proportion were overturned on appeal – about 1% overall. But official data suggests that for rape and sexual offence cases, the rate of wrong decisions is significantly higher, and has risen in recent years – from about 6% in 2018-19 to 21% in 2023-24.
Experts believe the true number of wrong decisions is far higher than official figures suggest, because many victims whose cases are dropped at a late stage choose not to go through the VRR process. “They want accountability but they think, ‘What’s the point?’,” said Kate Ellis, from the Centre for Women’s Justice. “It’s devastating because it’s already too late.”
Victim Support said it knew of five sexual offence cases in the last six months alone where no evidence was offered very close to the trial, leaving no time for a VRR. Michaela-Clare Addison, national sexual violence lead at the charity, said: “A lot of victim-survivors are left feeling that there’s just no justice, that the system is completely broken.”
The CPS is understood to be reviewing its approach to offering no evidence, but believes that halting legal proceedings to allow VRRs to be completed would “be likely to amount to an unjustifiable delay to the ongoing proceedings”.
In a letter to Jade McCrossen-Nethercott, who received £35,000 compensation after the premature closure of her case following a sexsomnia claim, it indicated it was formalising the process of escalating “no evidence” decisions and would now require approval at the deputy chief crown prosecutor level in all rape and sexual offence cases.
It said the goal of this was to make sure it got “these crucial decisions right, first time, without putting the onus on victims to ask for a review”. But McCrossen-Nethercott said it was difficult to gauge how much of a real change that would make when her own case was supposedly escalated – and the decision was still wrong.
Campaigners said that without changes to enable VRRs to be completed before acquittals are awarded, there was still a risk of the CPS making incorrect – but irreversible – decisions.
Ellis said trials were adjourned for many reasons and that safeguards could be put in place to ensure references to the VRR request would not be made in any subsequent court proceedings, to prevent prejudicing the jury. Campaigners also say that victims’ reviews could be expedited to limit delays to defendants.
She described the current CPS approach as “a fundamental injustice”. “There’s something very wrong about victims not having the opportunity for scrutiny, before a defendant is acquitted,” she said.
A government spokesperson said: “Through our unprecedented mission to halve such violence within the next decade, we will overhaul every aspect of society’s response to these appalling crimes. This begins with improving the criminal justice system, and we will work with all our partners, including the CPS, so that the Victims’ Right to Review scheme operates effectively to deliver victims the justice they rightly deserve.”
