Judicial Review of CPS Prosecuting Decisions (Appeals)

• Introduction
• The Approach of the Courts
• The ways in which a Decision can be challenged
  • Where the law has not been properly understood or applied
  • Where it can be demonstrated on an objective appraisal of the case that some evidence supporting a prosecution has not been considered properly
  • Where there has been a failure to comply with a relevant CPS Policy
  • Fraud or corruption
  • Failure to take account of previous judicial decisions
• The Criminal Trial and Judicial Review
• The Victims’ Right to Review Scheme and Judicial Review Proceedings
• Duty of Candour and the Duty of Disclosure
• Pre-Action Protocol
• Private Prosecutions, the CPS, and Judicial Review 

Introduction

Judicial Review is concerned with the improper exercise of public powers and duties. The CPS is an organisation which performs public acts and duties, in particular, applying the Code for Crown Prosecutors and deciding whether or not to prosecute a case. A decision whether or not to prosecute can be challenged by Judicial Review.

Proceedings are heard in the High Court. The parties are the “Claimant” (who initially asks for permission to make a claim, and becomes the “Claimant” once proceedings are issued); the “Defendant” (the body acting in a public law capacity in relation to the act or decision under challenge); and, sometimes, “Interested Party” (any person who the claimant considers to be directly affected by the claim).

If a claim for Judicial Review is successful, the court will quash the decision and may also remit it back to the CPS with a direction to reconsider it in accordance with the findings and judgment of the court. A Claimant may also be awarded damages in appropriate cases.

Decisions both to prosecute and not to prosecute can be challenged by way of Judicial Review. However, decisions not to prosecute are more often challenged by way of Judicial Review than decisions to prosecute. This is because a decision not to prosecute is final, whereas a decision to prosecute leaves a defendant in criminal proceedings, who might be considering an application for Judicial Review, free to challenge the prosecution's case in the usual way through the criminal court, arguing that there is no case to answer or that the decision to prosecute is an abuse of process.

The Approach of the Courts

It is well-established that the High Court will only very rarely intervene in relation to the prosecutorial decision making process. This power to intervene has been expressed in a number of different, but consistent, ways by the Court:

• “sparingly exercised” (R v DPP ex parte C [1995] 1 Cr App R 136, 140)
• “very rare indeed” (R (Pepushi) v Crown Prosecution Service  [2004] Imm AR 549, para 49)
• “highly exceptional remedy” (Sharma v. Browne-Antoine [2007] 1 WLR 780, para 14(5)
• “very rarely” (R (Bermingham) v. Director of the Serious Fraud Office  [2007] 2 WLR 635, para 63)
• “only in very rare cases” (S v Crown Prosecution Service [2015] EWHC 2868 (Admin) [2016], 1 WLR 804)

The rationale that underpins the reluctance to intervene in the prosecutorial decision making process is a combination of the constitutional independence of the prosecutor and also their professional expertise and experience. The latter point was summarised by Laws, LJ in R (Bermingham) [63]:

“ ….. in any event there will have been expert assessments of weight and balance which are so conspicuously within the professional judgment of the statutory decision-maker that there will very rarely be legal space for a reviewing court to interfere.”

The courts respect the constitutional position of the CPS as an independent decision maker to whom prosecutorial decisions are entrusted. The High Court has expressed approval of the Victims’ Right to Review Scheme. In L v Director of Public Prosecutions and Another [2013] EWHC 1752 (Admin) the High Court referred to the scheme:

“It is highly likely that where a review has taken place, and the review can be seen to be careful and thorough, proceedings for judicial review to challenge the decision will be the more difficult to advance … if there has been a review in accordance with this procedure, then, it seems to me, that the prospect of success will, as I have said, be very small.”

Additionally, on the subject of a prosecutorial decision, it was said in Torpey v DPP [2019] EWHC 1804 (Admin):

• particularly where a CPS review decision is exceptionally detailed, thorough, and in accordance with CPS policy, it cannot be considered perverse …
• a significant margin of discretion is given to prosecutors …
• decision letters should be read in a broad and common sense way, without being subjected to excessive or overly punctilious textual analysis.
• it is not incumbent on decision-makers to refer specifically to all the available evidence. An overall evaluation of the strength of a case falls to be made on the evidence as a whole, applying prosecutorial experience and expert judgment.

The courts recognise that different prosecutors may reach different conclusions when reviewing the same material in a case. In R v. DPP, ex. parte Manning & Another [2001] Q.B. 330, it was held (at paragraph 23) that:

“In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before…a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere.”

This passage was considered in R (on the application of B) v. DPP [2009] 1 W.L.R. 2072 when it was held that:

“There is an assumption underlying this passage (with its reference to the exercise of an informed judgment) that a prosecutor can ordinarily be expected to have properly informed himself (within the limits of what is reasonably practical) and asked himself the right questions before arriving at a decision whether or not to prosecute” (paragraph 53).

Therefore, provided Crown Prosecutors ask themselves the correct questions and consider all of the evidence and any relevant policy, the court will not interfere even if different Crown Prosecutors might have reached different conclusions.

The discretion given to a Crown Prosecutor is not unfettered, however. The powers entrusted to the CPS must be used to promote the statutory purpose for which they are given. Prosecutors must direct themselves correctly in law; act lawfully; exercise objective judgment on the material provided; and exercise powers in good faith.

The ways in which a Decision can be challenged

Even though the High Court is reluctant, there are categories of cases where they will intervene. The principle which underpins these categories of cases is that the decision of the Crown Prosecutor is “Wednesbury Unreasonable”. This phrase refers to the principles set out in Associated Picture Houses Ltd v Wednesbury Corporation 1947 1 All E.R. 498. To intervene in a decision taken, a court would have to be satisfied that:

• in making the decision, the defendant took into account factors that ought not to have been taken into account, or
• the defendant failed to take into account factors that ought to have been taken into account, or
• the decision was so unreasonable that no reasonable authority would ever consider imposing it.

Where the law has not been properly understood or applied

In R v DPP, ex p. Jones (Timothy) [2000] Crim LR 858. The Claimant challenged the DPP's decision not to proceed with a charge of gross negligence manslaughter against the employer of his deceased brother. It was argued that the DPP had not been entitled to conclude that there was no realistic prospect of securing a conviction. It was held, inter alia, that the DPP had misapplied the law by relying on the employer's lack of subjective recklessness instead of applying an objective test. The Court explained that the correct test for establishing gross negligence manslaughter was an objective one as set out in Adomako. Subjective recklessness was a factor which might be taken into account by the jury as being indicative of culpability, but negligence would still be criminal in the absence of subjective recklessness if the test in Adomako was satisfied. Although DPP had correctly stated the test, it appeared clear from his conclusions as to the suspect’s concerns about safety that his decision had in fact been based upon the suspect’s personal perceptions, and that it had therefore been the suspect’s lack of subjective recklessness which had been the determining factor in taking the decision not to prosecute.

The point is further illustrated and reinforced in Torpey [2019] EWHC 1804 (Admin). The claimant applied for judicial review of the DPP’s decision not to prosecute the Interested Party (a police officer) for causing death by dangerous driving and/or causing death by careless driving. In Torpey, the Claimant's son (L) had been driving a moped, with a passenger riding pillion. The moped was suspected of involvement in several mobile phone thefts in the area. The police identified it on CCTV cameras and sent a radio call to officers. The officer, who did not have tactical pursuit and containment training, responded. He turned on his lights and siren and began to pursue the moped. The pursuit lasted approximately four minutes. During that time the officer followed the moped very closely at certain points, and the moped mounted the pavement while undertaking cars on the nearside on at least one occasion. The moped then undertook a van on the nearside. The officer was overtaking on the offside, and the van driver moved towards the kerb. That caused the moped to hit the kerb and lose control, colliding with a traffic pole. L died at the scene. The Court considered the review decision of the Crown Prosecutor and decided that the law on issue of causation had been misunderstood and misapplied:

“However, our concern is that firstly, the decision-maker has discounted the Officer's earlier driving and, in so doing, interpreted the legal concept of causation too narrowly. The interpretation of the criminal law lies within the expertise of this court and does not usurp any constitutional independence of the CPS. The issue being essentially one of law, the decision-maker's experience carries less force. In our judgment, the broad and unqualified proposition that none of the Officer's earlier driving had a bearing on the collision amounts to a misdirection of law and one that is susceptible to judicial review on conventional error of law grounds.” (Paragraph 52).

The message is therefore a clear and obvious one; if the law has been misunderstood or misapplied there will be good grounds for the High Court to intervene.

Where it can be demonstrated on an objective appraisal of the case that some evidence supporting a prosecution has not been considered properly

This category of cases concerns irrational decisions or perverse decisions which no reasonable Crown Prosecutor could reach having regard to the evidence considered by the decision making Crown Prosecutor. Each case is fact specific, of course, but it is useful to look at a few examples to illustrate the High Court’s approach.

The point is illustrated in the Torpey case (see above for facts) where the Court considered the Crown Prosecutor’s analysis of the various sources of evidence in the case. The case had been reviewed by a different Crown Prosecutor before the complainant invoked her rights under the Victim’s Right to Review Scheme. The final decision not to prosecute had been taken by another Crown Prosecutor, of course. The Claimant argued that the Crown Prosecutor who took the final decision had been irrational in his consideration of the evidence. The Court referred to the review decisions of each prosecutor and said at paragraph 61:

“It is clear to the court that the IPCC and the first CPS lawyer demonstrated care and thoroughness in seeking to analyse the driving of the moped and the police vehicle before reaching any conclusions in respect of the same. For the reasons given in [43] to [59] above we find that the reviewing lawyer did not bring to his task that same care, thoroughness and detail. We are conscious that a broad common sense approach should be taken to the reasoning in a review decision, but when statements are made which are not easily identifiable in the evidence, that is a matter of concern. It is also reflective of the wider concern which the court has as to the care, thoroughness and detail which went into the writing of this review decision. This is not overly punctilious textual analysis, but based upon:

1. An absence of identification of the evidence considered and relied upon;
2. An absence of an adequate analysis of the relevant CCTV footage;
3. …
4. A failure to refer to and/or take account of the relevant evidence of an experienced and independent police driving instructor;
5. A failure to provide reasons for departing from the conclusions of the first CPS decision as to incidences of dangerous driving by the Officer;
6. A failure to deal with the evidence of the van driver.”

The point is further illustrated in the case of R v DPP, ex p. Jones (Timothy) [2000] Crim LR 858 (also referred to above). Briefly, the facts were that the deceased was employed as a labourer by a company. On his first day at work he was engaged in an operation to unload bags of cobblestones from the hold of a ship using a crane possessing a grab bucket adapted for the purpose by the addition of two chains. He was decapitated when the grab bucket under which he was standing closed unexpectedly. The Court considered the Crown Prosecutor’s review decision and decided there was no adequate explanation for the decision that the grab bucket procedure had not posed an obvious danger. The Crown Prosecutor had not explained why he had preferred the evidence of a service engineer employed by the manufacturer of the crane to that of the manufacturer's service manager. To reach a conclusion that the danger had not been sufficiently obvious had therefore been irrational.

In R (on the application of Peter Dennis) v DPP [2006] EWHC 3211 the claimant (P) applied for judicial review of a decision of the Crown Prosecution Service not to bring prosecutions for gross negligence manslaughter arising out of the death of his son (D) in an industrial accident. D, who was 17 years old, had fallen through a roof light to his death in his second week of work as a labourer with his employer (C). P maintained that C had instructed D to go onto the roof even though he had had no previous experience of working at heights or on roofs. At the time of the accident, D had offered to climb onto the roof in search of timber. One of D's colleagues (J) had told D not to bother but D had continued and had fallen to his death. At an inquest the jury returned a unanimous verdict of unlawful killing. The CPS considered whether various individuals should be prosecuted for gross negligence manslaughter but concluded that although individuals including C were in breach of duty of care to D, the degree of negligence exhibited was not such as to amount to criminal negligence. The CPS had relied on various factors including the suggestion that D had some experience in the building trade; that D's colleagues had told D not to go near skylights; that there was no reason for D to have gone onto the roof; that D had been specifically told by J not to go onto the roof. The Court considered the Crown Prosecutor’s review and decided (paragraph 43) that the Crown Prosecutor had:

“… not dealt in his reasons with the real thrust of any case that might be brought against Mr Clarke. There was evidence of a reason why Daniel might have gone on the roof — he had been instructed to do so as part of his duties as an employee, without any training or induction course, or any serious warning about roof lights, and had not been told not to do so prior to receiving that induction course. There is, furthermore, force in the point that by focusing on the particular moment before the accident,” … (the Crown Prosecutor) … “is failing to take account of the seriousness of a failure to give proper instruction not to go on the roof prior to induction or proper instruction in relation to working on a roof and particularly a roof with roof lights … there is thus force in the criticism that he failed to take … material … into account”.

It is therefore important to demonstrate that key evidence has been considered and interpreted correctly in any review decision. A failure to do so will give the High Court grounds to intervene in the decision. However, in the context of this category of cases we should also remind ourselves of the principle set out above in the Torpey case; namely,

“it is not incumbent on decision-makers to refer specifically to all the available evidence. An overall evaluation of the strength of a case falls to be made on the evidence as a whole, applying prosecutorial experience and expert judgment."

The Court recognised that proportionality is important when a Crown Prosecutor reviews a case and considers whether there is sufficient evidence in accordance with the Code for Crown Prosecutors.

Where there has been a failure to comply with a relevant CPS Policy

Kennedy, LJ in R. v Director of Public Prosecutions[1995] 1 Cr. App. R. 136 explained that the Courts would order the CPS to reconsider its decisions where there had been:

1. The application of an unlawful policy; or
2. A failure to act in accordance with settled policy in the Code for Crown Prosecutors or associated guidance

The CPS has a number of policies which apply to certain categories of cases and which are referred to in the Legal Guidance. It is important to consider those policies when reviewing those categories of cases. For example, offences involving domestic violence; offences committed in prisons; private prosecutions; and rape and serious sexual offences (RASSO) are all categories of offences which carry their own separate policy considerations. There is separate policy concerning the cautioning of youth offenders and conditions cautions.

By way of illustration, in R (on the application of F) v CPS and Chief Constable of Merseyside Police [2003] EWHC concerned an application for judicial review of a decision to pursue a prosecution against a youth. The Claimant contended that he ought to be dealt with by way of final warning. The application failed; the Divisional Court held that the Crown Prosecutor had considered all relevant matters and had proper regard to the Code for Crown Prosecutors. The prosecutor had considered the circumstances of the case, including the fact that no final warning was to be administered, and had come to a perfectly rational decision. Another example is R (on the application of Guest) v DPP 2009, where the High Court decided that, as with a simple (or "police" caution), the decision to administer a conditional caution may be judicially reviewed. If shown to be unlawful, either because the proper procedures have not been followed or because it has been given in respect of an offence that is outside the Director's Guidance, or because it is otherwise unreasonable on Wednesbury principles, the decision to authorise and then administer a conditional caution may be quashed and the caution set aside.

The fundamental policy document which underpins the work of the CPS is, of course, is the Code for Crown Prosecutors, which provides that all cases are the subject of the two stage test. In R v. DPP, ex. parte Manning & Another [2001] Q.B. 330 the Court considered whether the Crown Prosecutor had properly applied the first part of the test, namely whether the evidence provided a “realistic prospect of conviction”. The Court decided that the Crown Prosecutor had applied a test higher than that laid down in the Code. The Court explained at paragraph 22:

“It was not the role of the CPS simply to give cases a public hearing, regardless of the strength of the evidence. There had to be an objective assessment of that evidence. The CPS should not look for the same standard of proof that a jury or bench of magistrates would need to find before it could convict, which would set too high a standard and tend to usurp the role of the court. The test based on “more likely than not” meant just that”

This approach is re-affirmed in paragraph 3.7 of the October 2018 edition of the Code for Crown Prosecutors, which says:

“The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which they might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.”

The paragraph above not only reinforces the standard of proof required to satisfy the first stage of the full code test; but also highlights that prosecutors should not apply a purely predictive approach based on past experience of similar cases, but instead should imagine himself or herself to be the fact finder and ask whether, on balance, the evidence is sufficient to merit a conviction taking into account what is known about the defence case.

There may be cases where the Crown Prosecutor considers it necessary to depart from policy when applying the Code for Crown Prosecutors. The issue will arise more frequently in cases where criminal proceedings have been issued and the defendant in those proceedings argues an abuse of process because of departure from established policy in bringing the case. The principle is the same, however; policies are not law, and there may be occasions when a departure from policy is justified. The issue was considered in A –v- R [2012] EWCA Crim 434. This case concerned, inter alia, the issue of the application of a CPS policy for prosecuting victims of rape where a rape victim had lied in her statement retracting the original rape allegation. The Lord Chief Justice said at paragraphs 83 and 84:

“It is elementary, but it has become necessary to emphasise, that Guidance issued by the Director of Public Prosecutions does not and, as a matter of law cannot, create any immunity or defence. The guidance and any policy documents publicly reflect the considerations which, in an individual case of the kind under consideration, are considered to be relevant to the exercise of the prosecutorial discretion not to bring an individual case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. If, however, this exercise has been conscientiously undertaken, the sole question for the court is whether the offence has been committed. It is not the function of the court to substitute its own view for that of the Crown about whether there should be a prosecution… the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance.”

Therefore, provided such an exercise is “conscientiously undertaken” a Crown Prosecutor can “an individual case, for good reason, to disapply … policy or guidance”. This underlines the requirement for a fully reasoned and clear review decision if a Crown Prosecutor decides to depart from established policy.

Fraud or corruption

This is, perhaps, the most obvious category of cases. The principle was stated in R v DPP, ex p. Kebilene [2000] 2 AC 326. Here, the DPP appealed against the order of the Divisional Court ([1999] 3 W.L.R. 175) to grant declaratory relief to K on the ground that the decision to continue prosecutions under the Prevention of Terrorism (Temporary Provisions) Act 1989 s.16A involved an error of law, as section 16A of the Act relating to the possession of articles for terrorist purposes, reversed the legal burden of proof and therefore undermined the presumption of innocence and was incompatible with the European Convention on Human Rights 1950 Art.6(2) and the Human Rights Act 1998. The House of Lords allowed the appeal and said that the DPP was entitled to decide that the prosecution was justified as being in the public interest, despite the uncertainty in the law. In the absence of dishonesty, bad faith or other exceptional circumstance, the DPP's decision to consent to the prosecution was not susceptible to judicial review. It was not for the DPP to disapply primary legislation, although a review of the appropriateness of the legal advice on which the DPP acted could be carried out without infringing parliamentary sovereignty.

Failure to take account of previous judicial decisions

This is a category of cases which is worthy of separate note. Where a case is reviewed and other proceedings have taken place, such as an inquest, for example, regard should be had to the findings of those other proceedings. Such findings will usually be relevant in a Crown Prosecutor’s analysis of the evidence. The Crown Prosecutor may draw a different conclusion from his or her analysis of the evidence; on the other hand, the analysis of a Coroner, for example, may be useful and persuasive, always bearing in mind the standard and burden of proof in criminal cases, and the test for evidential sufficiency in the Code for Crown Prosecutors. It is important, however, that any previous judicial decisions are considered and analysed in the Crown Prosecutor’s review. This was the view of the Court in R v. DPP, ex. parte Manning & Another [2001] Q.B. 330, which concerned a death in custody. The Court said that where an individual had died whilst in the custody of the State and a properly directed inquest had reached a verdict that the killing had been unlawful; reasons should be given for a decision not to prosecute. The right to life was a fundamental human right which could only be denied in extremely limited circumstances. The coroner's verdict had created an ordinary expectation that a prosecution would result. Accordingly, it was desirable that the DPP in deciding to go against such an expectation should provide grounds for that decision.

The Criminal Trial and Judicial Review

Proceedings for Judicial Review are much rarer in cases where the decision is taken to prosecute a case. Where criminal proceedings have been instituted and a defendant faces trial in the magistrates’ court or the Crown Court, the issue of whether such a defendant can challenge the decision to prosecute by way of Judicial Review has been considered by the courts.

It could be enormously disruptive if defendants were permitted to adjourn proceedings in the magistrates’ court or the Crown Court whilst a claim for Judicial Review of the decision to prosecute is heard in the High Court. A defendant in a criminal trial is able to argue that the evidence presented by the Prosecution is insufficient to establish a case to answer. Such a defendant is also able to argue that the Prosecution case is an abuse of process – in arguing that a case is an abuse of process a defendant can highlight any breach of policy in the CPS legal guidance, for example, which would make the trial against him unfair.

Submissions of no case to answer and abuse of process by defendants in criminal trials utilise the law and evidence in a case, and any policies in existence to argue that a case should never have been brought. A Claimant in Judicial Review proceedings is essentially utilising the law and evidence in a case or the policies in existence to argue that a case should be brought. There is a fundamental difference between the circumstances of a Claimant in Judicial Review proceedings and a defendant in a criminal trial, however. The defendant already has the benefit of a forum before which to make his arguments (the magistrates’ court or the Crown Court), whereas the Claimant has no such forum available.

Inevitably, therefore, the courts have considered whether a defendant in criminal proceedings should have the remedy of Judicial Review available to him to argue that a case should never have been brought where it is open to him or her, for example, to make submissions of no case to answer or abuse of process within the criminal trial. The point was considered in A v R [2012] EWCA Crim 434, an appeal against conviction from the Crown Court to the Court of Appeal, where the Lord Chief Justice said at paragraph 81:

“As to judicial review, there can, we suggest, be very few occasions indeed when an application for permission by or on behalf of a defendant should not be refused at the outset on the basis that an alternative remedy is available in the Crown Court. This is the appropriate tribunal for dealing with these questions on the rare occasions on which they may arise. Precisely the same considerations apply to a case involving summary trial.”

The “alternative remedies” referred to the Lord Chief Justice include the opportunities to make submissions of no case to answer or abuse of process. The Lord Chief Justice found firm authority for his proposition in the judgment of Lord Hobhouse in R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326:

"If the substance of what it is sought to review is the answer to some issue between the prosecution and defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings.”

The authorities are now clear: in the absence of exceptional circumstances, the decision to prosecute will not be amenable to Judicial Review in the High Court as the arguments can be dealt with within the criminal trial in the magistrates’ court or the Crown Court. Such exceptional circumstances might be dishonesty or mala fides on the part of the prosecutor, but one might argue that the law on abuse of process is sufficiently developed to deal even with those circumstances.

The Victims’ Right to Review Scheme and Judicial Review Proceedings

A claim for judicial review will not be entertained until the CPS has had the opportunity to review the case under the VRR scheme. The margin for a review of a decision made in accordance with the VRR Scheme is extremely narrow. One of the reasons for that can be that a number of professional prosecutors have reached the same conclusion. However, most significantly it is because the procedure followed during the VRR is scrupulously fair. The experienced ARU lawyer will have had issues raised and potential criticisms of the earlier decisions highlighted. This leaves them conspicuously well placed to conduct their review. In L v DPP [2013] EWHC 1752 (Admin) Sir John Thomas considered the VRR Scheme which was about to be introduced and stated:

“It is, I think, important in the light of this new procedure also to point out the following.

First, no judicial review should be brought until the CPS has had an opportunity of conducting a further review under their Victim right of review procedure. In the ordinary case, if a challenge is to be brought before that right of review has been taken up, a court should not entertain it.

Second, if there has been a review in accordance with this procedure, then, it seems to me, that the prospect of success will, as I have said, be very small.”

Given that the High Court should not entertain a claim for judicial review before a case is referred under the VRR scheme, the issue of timing can be significant so far as a complainant is concerned. The VRR guidance requires that the CPS to have brought the case to a conclusion before a referral is made under the scheme. Often the CPS will have to offer no evidence where a case is before the magistrates’ court or the Crown Court to bring a case to a conclusion because the defendant has entered pleas of not guilty. Only then will a complainant have a right of referral under the VRR scheme. In such a case, where a decision to offer no evidence is deemed wrong under the VRR referral, proceedings cannot be re-commenced, because a defendant is acquitted following no evidence being offered. Such a complainant might feel aggrieved that only an apology (and not re-institution of proceedings) will be forthcoming under the VRR scheme following the finding that the decision to bring the case to a conclusion was wrong. Such a Claimant might, therefore, issue Judicial Review proceedings and apply for an interim injunction prohibiting the CPS from offering no evidence pending referral of the case under the VRR scheme. This scenario was considered in the case of R (Hayes) v CPS [2018] EWHC 327 (Admin). The case decided that it was not unlawful for the CPS to operate in this way. Delivering the judgment of the court in Hayes, Holroyde LJ said:

“… the policy is justified because the operational effectiveness of the VRRG would be seriously harmed if there were a right for a victim to make representations before the prosecution acted upon a decision to offer no evidence.”

Whilst such a Claimant might be left feeling resentful, the court in Hayes balanced this against the effectiveness of the VRR Scheme and the implications for magistrates’ court and the Crown Court. It is clearly an unsatisfactory state of affairs if proceedings in court are adjourned pending a decision under the VRR scheme where the CPS proposes to offer no evidence. The operation of the scheme does mean that its effectiveness is restricted, in these particular circumstances, but Holroyde LJ explained that such “restriction is justified and proportionate in its balancing of competing interests”.

Any application for an interim injunction preventing the CPS from offering no evidence in such the scenario above should therefore be opposed. If such an injunction is obtained ex-parte, steps should be taken to set the injunction aside. An interim injunction should contain a clause allowing a defendant “liberty to apply”. An application should be made in a timely manner and the authority of Hayes brought to the attention of the High Court.

Duty of Candour and the Duty of Disclosure

Where there is an indication that a decision will be challenged by way of Judicial Review it is likely that the case will already have been dealt with under the Victims’ Right to Review Scheme, and the Crown Prosecutor who responds to the pre-action letter from the Claimant will have the benefit of being able to refer to the reviews which have taken place under the VRR Scheme.

As a public body, the CPS has a “duty of candour” in judicial review proceedings. This duty can be discharged by explaining the full facts and reasoning underlying the decision challenged and disclosing any relevant documents.

The duty of disclosure which arises in discharging the duty of candour is the same duty of disclosure which arises where a claimant makes a request for disclosure. The following general principles apply:

• Disclosure is not required in a judicial review claim unless the Court orders otherwise (CPR PD 54 para 12.1). Disclosure of documents will not be required in most cases providing sufficient information is provided as to the basis for the decision
• The Court will only order disclosure if it is necessary for the fair and just disposal of the case (see Tweed v Parades Commission of Northern Ireland [2006] UKHL 53; [2007] 1 AC 650, R (Bredenkamp) v Secretary of State for Foreign and Commonwealth Affairs [2013] Lloyds Rep FC 690)
• The Court will not order disclosure that amounts to a fishing expedition (see R v Secretary of State for the Environment Ex p Islington LBCandLondon Lesbian and Gay Centre [1992] C.O.D 67 and Tweed)

The duty of disclosure in a case where a decision not to prosecute is being challenged following the complainant invoking their rights under the VRR scheme is now settled law. All that it is necessary for the CPS to disclose is the reasoning of the VRR lawyer. That is because the ultimate decision is the one that is being challenged. In S v Crown Prosecution Service and Oxford Magistrates’ Court [2015] 1 Cr App R 14 the Claimant sought disclosure of the detail of the earlier reviews as well as additional documents. The disclosure sought in S was rejected by the Divisional Court. The relevant extract from Sir Brian Leveson’s judgment is as follows:

“Where (as here) the issue is whether the decision of the CPS was one open to a reasonable prosecutor and the decision-maker has provided evidence of the basis for her decision, the interests of justice do not require further disclosure in order to assess the reasonableness of the decision.”

Pre-Action Protocol  

The object of the pre-action protocol procedure is that judicial review proceedings are not commenced prematurely without exploring alternative methods of resolving the dispute. This is dealt with in CPR pts 8 and 54.

It imposes a requirement that the Claimant should send a detailed letter before claim to the Defendant and gives the Defendant 14 days to respond before proceedings are issued. Annex A of the protocol provides a standard format letter for claimants.

The Defendant should respond within 14 days. Annex B of the protocol provides a standard format letter of response for a Defendant. It requires a Defendant, among other things, to set out a response, explaining whether the issue in question is conceded in part or in full or will be contested.

The duty of candour is important when drafting a response. The response should be as full as possible and draw attention to any issues that the Defendant may wish to raise in the summary grounds of defence, should proceedings be issued. The response should also propose any possible methods aside from litigation of resolving or narrowing the issues between the parties. In the context of a challenge to a prosecutorial decision not to prosecute a case, the availability of the Victims’ Right to Review Scheme should be brought to the attention of the Claimant if the Claimant has not exhausted their rights under the scheme. For a Claimant who has exhausted their rights under the Victims’ Right to Review Scheme, correspondence previously sent to the claimant under the scheme will be relevant when drafting the response to a pre-action protocol letter, as the correspondence should have set out the rationale for the decision in full.

Whilst there is provision to ask for an extension of time in the protocol to respond to a pre-action protocol letter, a Claimant will have to ensure that he or she does not fall foul of the time limit for the issuing of proceedings for judicial review, and may not, therefore, be disposed to agree to any extension of time to respond. The time limit is not fixed, but is “promptly and in any event within three months” CPR Part 54.4.

Paragraph 3 of the protocol provides that there are only two circumstances where a Claimant need not follow the pre-action protocol:

1. Where the defendant does not have the legal power to alter the decision under challenge (e.g. where a court has already disposed of a case and no longer has jurisdiction. This is unlikely to be relevant in the context of a CPS decision).
2. Urgent cases where interim relief is sought.

In other scenarios it is left to Claimants to “satisfy themselves” whether or not they should follow the protocol, “depending on the circumstances of the case”.

A failure to comply with the pre-action protocol will be taken into account by the Court during any proceedings; and in the absence of good reasons and may be particularly pertinent to the issue of costs. This applies to both claimants who do not send a letter before claim, and defendants who do not respond. It is therefore crucial that any pre-action protocol letter is dealt with and a response drafted in a timely manner.

Private Prosecutions, the CPS, and Judicial Review

The right of any individual to institute criminal proceedings is preserved by Section 6 (1) of the Prosecution of Offences Act 1985. An increasing number of private firms are now undertaking prosecution work, primarily on behalf of corporations. Where criminal proceedings are instituted the Defendant in such proceedings often refers the case to the CPS for review, with a request that the CPS takes over the proceedings under section 6 (2) Prosecution of Offences Act 1985. The object of such an exercise is that the CPS will apply the Code for Crown Prosecutors and any associated policy and discontinue the case or offer no evidence.

Not every referral to the CPS results in discontinuance, of course. A Crown Prosecutor may decide to allow the case to continue, and allow the Private Prosecutor to continue with the conduct of the case. Alternatively, the Crown Prosecutor may decide to take over the case at public expense; but where the decision is to discontinue or offer no evidence, the Private Prosecutor acting on behalf of a corporation is often prepared to apply for permission to make a claim for judicial review more readily than a private individual.

The situation which arose in the Hayes Case (above) was a private prosecution case. The decision was taken to offer no evidence in the Crown Court and not to adjourn the proceedings pending the referral of the case under the VRR Scheme. Defendants in private prosecution cases may therefore be more disposed to referring a case to the CPS after pleas are taken, perhaps as the trial date approaches, in the knowledge that the criminal proceedings will not be adjourned pending a review under the VRR Scheme.

The criminal proceedings will often have involved both sides incurring vast amounts in costs. Nevertheless, the authority of Hayes is clear; the CPS should first of all deal with the criminal case to a conclusion before accepting a referral under the VRR Scheme; the criminal proceedings should not be adjourned pending the outcome of a VRR referral; and any application for an interim injunction preventing the CPS from offering no evidence (in judicial review proceedings) is unlawful. If the Private Prosecutor is informed of the decision to offer no evidence prior to no evidence being offered, the Private Prosecutor could, theoretically make an application for permission to make a claim for judicial review; however, such a course of action may be futile because:

• The CPS should proceed to offer no evidence in the magistrates’ court or the Crown Court on the authority of the Hayes Case.
• The High Court should not issue an interim injunction to prevent the CPS offering no evidence in the magistrates’ court or the Crown Court on the authority of the Hayes Case.
• It is unlikely that the High Court case would proceed to a final hearing before the time comes to offer no evidence in magistrates’ court or the Crown Court.
• Any decision to institute proceedings for judicial review of the decision not to prosecute should not be entertained before the right of review under the VRR Scheme has been taken up (L v DPP [2013] EWHC 1752 (Admin)). The “qualifying decision” giving rise to the right to review is only taken when the prosecution actually offers no evidence, with the result that no request for a review can be made until after that point.