Although much of the public discussion surrounding rape prosecution focuses on victims’ rights and access to justice, it is equally important to recognise that decisions to prosecute—or not to prosecute—must be made fairly, independently and in accordance with the law. Allegations of rape are among the most serious offences that can be investigated, carrying significant legal, personal and reputational consequences for those accused. For that reason, the Crown Prosecution Service (CPS) must carefully apply the evidential and public interest tests set out in the Code for Crown Prosecutors before deciding whether a case should proceed.
The CPS has recently introduced a new two-tier review process through the national rollout of the Early Victims’ Right to Review (VRR) Scheme in qualifying rape and serious sexual offence cases. The changes are intended to provide complainants with an additional opportunity for an independent review before certain decisions not to proceed with a rape prosecution become final.
As criminal defence lawyers specialising in sexual offences, we understand the profound impact that a rape allegation can have from the moment an investigation begins. Whether an individual is under investigation or has already been informed that no further action will be taken, it is essential that CPS decisions remain evidence-based, impartial and free from external pressure. In this article, we explain how the Victims’ Right to Review Scheme operates, examine the CPS’s new two-tier review process, and consider what these developments may mean for individuals facing allegations of rape prosecution and the wider criminal justice system.
Why Are Rape Prosecution Decisions So Significant?
Few criminal allegations carry the same degree of seriousness as an allegation of rape. An investigation alone can have devastating consequences for an individual’s employment, family life, mental health and reputation, regardless of whether they are ultimately charged or convicted.
For this reason, the CPS performs a critical role in determining whether a rape prosecution should proceed. Although the police investigate allegations and gather evidence, the decision to charge in most serious cases rests with specialist CPS prosecutors. Before authorising a prosecution, they must be satisfied that the Full Code Test has been met.
The Full Code Test consists of two stages:
- The Evidential Stage, which requires prosecutors to determine whether there is sufficient admissible, reliable and credible evidence to provide a realistic prospect of conviction.
- The Public Interest Stage, which considers whether bringing a prosecution is in the public interest.
Importantly, both stages must be satisfied before a prosecution can proceed.
Contrary to common misconception, a decision not to prosecute does not necessarily mean that the complainant is not believed. Equally, a decision to prosecute should never be interpreted as evidence that the accused is guilty. The criminal justice system is founded on the presumption of innocence, and the burden remains on the prosecution to prove guilt beyond reasonable doubt before a defendant can be convicted.
This careful balancing exercise is particularly important in rape prosecution cases, where evidence often depends upon issues of consent, credibility and the circumstances surrounding the alleged offence rather than independent witnesses or forensic evidence.
What Is the Victims Right to Review Scheme?
The Victims’ Right to Review (VRR) Scheme allows complainants to ask the Crown Prosecution Service (CPS) to look again at certain decisions not to prosecute or to stop a criminal case.
The scheme was introduced to make sure important CPS decisions can be independently reviewed, helping to improve fairness, consistency and public confidence in the criminal justice system.
A complainant may be able to request a review if the CPS:
- decides not to charge a suspect;
- withdraws criminal charges;
- stops an ongoing prosecution; or
- offers no evidence, meaning the case comes to an end.
The review is carried out by a different prosecutor who was not involved in the original decision. They consider whether the CPS correctly applied the law and whether there was enough evidence to justify the original decision.
It is important to remember that the VRR Scheme is not an appeal against a jury’s verdict or the outcome of a trial. Instead, it is an internal review process that allows the CPS to check whether its own decision-making was correct.
From a criminal defence perspective, independent reviews can help ensure that prosecution decisions are made fairly and consistently. However, it is equally important that every review remains based on the evidence and the law, rather than public opinion or external pressure.
How Did the Previous Review Process Work?
Until recently, a complainant could usually only ask for a review after the CPS had made a final decision not to prosecute or to stop a case.
The process worked like this:
- The CPS makes a decision – After reviewing the evidence, the CPS may decide there is not enough evidence to prosecute or that it is not in the public interest to continue the case.
- The complainant is told – If the decision falls under the Victims’ Right to Review Scheme, the complainant is informed and advised that they can ask for the decision to be reviewed.
- A review is requested – If the complainant disagrees with the decision, they can ask the CPS to look at the case again.
- An independent prosecutor reviews the case – A different prosecutor, who was not involved in the original decision, considers whether the CPS made the correct decision based on the evidence and the law.
The reviewing prosecutor may agree with the original decision or decide it was wrong. If the decision is overturned, the prosecution may continue where legally possible.
The key point is that this review usually happened after the CPS had already decided to end the case. The new Early Victims’ Right to Review process changes this by allowing certain decisions in rape prosecution cases to be reviewed before they become final. While the timing has changed, the legal test for bringing a prosecution remains exactly the same.
Understanding the New Two-Tier Review Process
The new Early Victims’ Right to Review process adds an extra stage before certain rape prosecution decisions are finalised. This process has recently been rolled out across all 14 CPS areas.
Stage One: The CPS Reviews the Case
A specialist CPS prosecutor considers the evidence gathered by the police.
If they believe there is not enough evidence to continue with the prosecution, they may propose that the case should be stopped. However, under the new process, this is not always the final decision.
Stage Two: An Independent Review
Before the case is formally ended, eligible complainants can ask for an Early Victims’ Right to Review.
A different CPS prosecutor, who was not involved in the original decision, will then review the case. They will consider whether the evidence has been assessed correctly and whether the decision follows the legal guidelines.
The reviewer may decide:
- the original decision was correct, and the prosecution should end; or
- the case should continue because the legal test for prosecution has been met.
The purpose of this additional step is to provide further checks on important CPS decisions before they become final. The legal test for bringing a rape prosecution has not changed; the process simply allows an earlier independent review of certain decisions.
What Does This Mean for Individuals Accused of Rape?
From a criminal defence perspective, the Early Victims’ Right to Review process is an important change that anyone under investigation or facing a rape prosecution should understand.
The new process does not mean that more people will automatically be prosecuted. The legal rules for bringing a prosecution remain the same.
The CPS must still be satisfied that:
- there is enough evidence to provide a realistic chance of conviction; and
- continuing with the prosecution is in the public interest.
If these requirements are not met, a case should not proceed.
The main change is the timing of the review process. In some cases, a decision by the CPS to stop a prosecution may now be reviewed before it becomes final.
This means that someone who has been told their case is being discontinued may have to wait longer before the matter is fully concluded if an Early VRR request is made.
For those accused of serious offences, investigations and prosecutions can already cause significant stress and uncertainty. Any delay in reaching a final decision can add to that pressure.
However, independent review can also help ensure that CPS decisions are made properly and consistently. If the original decision was correct, the review provides further confirmation that the case has been considered carefully. If a mistake has been made, identifying it early can help ensure the right outcome is reached.
Ultimately, the process aims to balance the rights of complainants with the need to protect the fundamental principle that every person accused of a crime is entitled to a fair and evidence-based decision.
Does the New Process Change the Rights of Defendants?
The Early Victims’ Right to Review process does not change the legal protections available to people accused of rape.
Those accused continue to have important safeguards, including:
- the presumption of innocence;
- the right to legal advice and representation;
- the right to challenge the prosecution’s evidence; and
- the requirement for the prosecution to prove guilt beyond reasonable doubt.
The introduction of the new review process does not remove or reduce these protections.
The CPS must also continue to act independently. Its role is not to secure convictions at any cost, but to make fair decisions based on the evidence and the law.
This is particularly important in rape prosecution cases, where allegations often receive significant public attention.
Every case must be decided on the evidence, without pressure, assumptions or outside influence.
Does the New Process Apply to Every Criminal Case?
No.
At present, the Early Victims’ Right to Review process only applies to certain rape prosecution and serious sexual offence cases.
Other types of criminal cases continue to follow the existing Victims’ Right to Review Scheme, where a review usually takes place after the CPS has already made its decision.
The introduction of the Early VRR process for rape cases reflects ongoing efforts to improve confidence in how serious sexual offence cases are investigated and prosecuted.
It remains to be seen whether the process will later be extended to other types of offences.
For those facing allegations, it highlights the importance of obtaining early legal advice. A specialist criminal defence solicitor can help explain the investigation process, advise on CPS decisions and ensure the accused person’s rights are protected throughout.
Why Early Legal Representation Remains Essential
Regardless of any changes to the Victims’ Right to Review process, early legal advice remains one of the most important safeguards available to anyone accused of rape.
Specialist criminal defence lawyers can:
- advise during police interviews;
- scrutinise the evidence obtained during the investigation;
- identify weaknesses or inconsistencies in the prosecution case;
- make representations to investigators or prosecutors where appropriate; and
- protect the rights of suspects throughout every stage of the criminal justice process.
Given the seriousness of a rape prosecution, obtaining expert legal representation at the earliest opportunity can have a significant impact on the conduct of the investigation and any subsequent proceedings and decisions to prosecute.
If you are accused of rape, regardless of the stage your case is at, our team can offer free initial advice confidentially. Contact our specialist rape defence team today.