4. Victims' right to request a review
The Victims' Right to Review (VRR) scheme in England and Wales gives you the right to ask for a review of a decision not to prosecute a dutyholder in certain circumstances. Those circumstances are where a qualifying decision has been made. A dutyholder is someone who has responsibility for controlling risk under health and safety law.
A ‘qualifying decision’ is when we have decided not to prosecute after we have either:
- investigated and completed a case with a view to a potential prosecution and identified and interviewed a dutyholder under caution
- taken written representations from a dutyholder about the suspected breach of the law
The Victims’ Code gives you the right to request that we review our qualifying decision.
In Scotland, cases referred to the Crown Office and Procurator Fiscal Service have a separate VRR scheme.
The right to review specifically applies to decisions not to prosecute. It does not cover other decisions not to start or continue with enquiries or investigations. If you want to request a review of other decisions, contact your investigator or their manager. The VRR scheme only applies to decisions HSE has made on or after 1 October 2015.
If you are part of a bereaved family, you can appoint a family member to act as spokesperson. They will be the point of contact with us for any formal process under the scheme. But we understand that more than one bereaved family member may want to engage with us.
If you want someone to act on your behalf, you must confirm their authority to do so in writing. We will consider all requests individually.
If you decide to request a review, you do not need to seek legal advice or provide reasons for your request.
Notification of a decision not to prosecute
Not all investigations lead to HSE considering taking a prosecution. HSE may offer advice where appropriate, or we may write to the duty holder, serve improvement and prohibition (or other) notices, withdraw approvals, vary licence conditions and or in limited cases, issue a caution.
We will notify you if there is a decision not to prosecute or to end a prosecution.
If the decision is a qualifying decision, the notification will confirm that you can ask for a review under the VRR scheme. It will give you enough information to decide whether or not you want a review to take place. If you do want a review, it will explain the steps to take.
If you want to request a review, contact your lead investigator.
You will be able to discuss the decision and the reasons for it with your investigator.
Conducting the review
If you ask for a VRR, there will be an independent review of the original decision not to prosecute by a reviewing officer. They will be at least the same grade as the person who made the original prosecution decision. They will not have been involved in the original decision or the investigation. They will get legal advice if they need to.
The reviewing officer will approach the case afresh and conclude:
- whether there should be a prosecution
- whether they need further enquiries or
- that they should take no further action
Their decision will take precedence over the original decision. It is a new review and does not reconsider the decision previously made or the reasons for it.
The reviewing officer will only overturn a decision not to prosecute if they believe that their decision meets with:
- HSE’s Enforcement Policy Statement
- the evidential and public interest tests under the Code for Crown Prosecutors
The outcome of the review and the reasons for the reviewing officer’s decision will be written down. The outcome will be communicated to you.
You should make a VRR request as soon as possible and normally within 5 working days after you receive the decision not to prosecute.
HSE should acknowledge your request within 10 working days.
The reviewing officer should complete their review and tell you their decision within 20 working days from receiving your request.
Where the case is particularly complex or sensitive, they may not be able to give you a VRR decision within this time limit. If so, they will notify you and give you regular updates on the progress of the review.
Where a case is subject to a statutory time limit for bringing a prosecution, we will make every effort to speed up the review.
Outcome of the review
There are 5 potential outcomes of a review:
- we decide not to prosecute
- we will start court proceedings against the dutyholder
- the dutyholder receives an out of court disposal
- we decide there should be further enquiries or investigation before the reviewing officer can make their decision
- we would decide to prosecute but a prosecution cannot be brought as a matter of law, for example when an offence is time limited
We will confirm review decisions in writing. We may communicate them to the victim or their representative verbally first.
Where we decide further enquiries are needed, the original investigator will carry them out. Once completed, the file will be passed to the prosecution decision maker for a further review of the evidence. If the decision is made to prosecute, the victim will be notified and we will start proceedings.
When the decision to take no action remains, we will pass the file to a reviewing officer for a final review.
In cases where the reviewing officer considered that the case should have been prosecuted but the law will not allow this, HSE will offer you an explanation and, where appropriate, an apology.
If you are dissatisfied with the outcome of the HSE VRR review, you can request a second review of the decision. You should make this request to the reviewing officer within 10 days of the outcome of the initial VRR decision being given to you. Details on how to request a second review will be included in the correspondence.
Te second review will be undertaken by someone of at least a grade higher than the original prosecution decision maker and not less than that of the initial reviewing officer. The aim is to complete the second review and provide the final decision to the requestor within 20 days of the request. Following this, HSE’s VRR procedure provides no further routes of review.
Reviews outside HSE's VRR procedure
If you are dissatisfied with the outcome of the further review, you can contact the Parliamentary and Health Service Ombudsman.
Reviews of decisions not to prosecute will not be considered under HSE’s complaints procedure. If the request for review is not in the scope of the VRR scheme, we may be able to handle the request as a complaint in line with HSE’s standard complaint procedure.