Victim participation during investigation and prosecution in English criminal law

Participation of victims of crimes in English criminal procedure, except for the sentencing stage, is limited compared to other national systems where victims can be civil parties. While research into victim participation in criminal justice has mainly and understandably centred around the trial and sentencing stages, this blog focuses on some general considerations about the extent to which victim participation in contemporary English criminal law is present in pre-trial stages: investigation and decisions to prosecute.   

Victims can report crimes to the police^[1]. While they cannot make a decision that the state should prosecute, they, like anyone else, can institute a private prosecution^[2]. Yet, the latter may be overtaken by the Director of Public Prosecutions, who could then discontinue the prosecution^[3]. There has been very limited usage of private prosecution in contemporary criminal proceedings, such that it has been described as having mere symbolic value^[4]. Regarding public prosecution, victims lack the right to join the proceedings as civil parties^[5]. Under the Victim’s Charter, now Victim’s Code[6], victims can expect the police to keep them informed; however, they do lack a proper legal right to information during the investigation^[7]. Victims also cannot stop the investigation or prosecution^[8]. 

Victims also lack a legal right to insist that the police take action^[9]. While the police normally seek victims’ views about prosecution, the Crown Prosecution Service decides whether to prosecute. Under the Code for Crown Prosecutors (CCP) (Sections 4.1-4.14), a two-fold test applies: a realistic conviction prospect and whether prosecution would be in the public interest. Concerning public interest (CCP, Section 4.14(c)), ‘prosecutors should take into account any views expressed by the victim [or their family] regarding the impact that the offence has had’. Nonetheless, the CCP (Section 4.14(c)) also establishes that, since Prosecutors do not act for victims or their families as solicitors, they ‘form an overall view of the public interest’. This makes clear that consideration of victims’ views and public interest is separate: victims’ consent is not required for a prosecution to be in the public interest. 

While victims lack a right to be involved in the decision to prosecute, the Prosecutor needs to consider victims’ interests to decide whether to prosecute:^[10] failure to prosecute murder or degrading/inhuman treatment cases, rather than the failure to properly weigh victims’ desires themselves, may violate the European Convention of Human Rights (ECHR) (Articles 2-3)^[11]. It must be left clear, however, that the ECHR does not provide victims with the right to be involved in decisions about criminal cases. In any event, the state is obligated to investigate on its own motion, paying due attention to victims’/their family’s interests under the European Court of Human Right’s (ECtHR) jurisprudence^[12]. The High Court in R (B) v Director of Public Prosecutions considered ECHR-Article 3 (‘Prohibition of Torture’) investigative obligations: the claimant was awarded damages because the Prosecutor had dropped the case due to the claimant’s mental problems^[13].

In certain cases, prosecutors have to inform victims of their decisions, e.g. case cessation or substantial charge alteration (CPP, Section 3.6). The Divisional Court has highlighted that if a prosecution is ‘not to follow a plausible explanation will be given’^[14].

Therefore, participation avenues for victims are limited during investigation and prosecution in the English criminal procedure. Victim participation has mainly remained residual or accessory. Looking ahead, the new Victims’ Commissioner, who starts in January 2026,[15] might consider reviewing how victims are involved in the early stages of a criminal case to enhance victim participation.

Dr. Juan-Pablo Perez-Leon-Acevedo (PhD, LLM, LLB)

Dr. Juan-Pablo Perez-Leon-Acevedo (PhD, LLM, LLB) is currently completing his DPhil in law at the University of Oxford, where he is also a tutor in law.

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