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Appeals: Judicial Review of Prosecutorial Decisions

This guidance was last updated on 21 May 2009.

Key Principles

A decision by the Crown Prosecution Service to prosecute or not to prosecute may be judicially reviewed. If an application for judicial review is successful, the court will direct the CPS to reconsider its position. The final decision is, however, for the CPS. It is clear from the case law below that the courts are likely to order the CPS to review its prosecutorial decisions where:

Law

  • It is apparent that the law has not been properly understood and applied (R v DPP, ex p. Jones (Timothy) [2000] Crim LR 858).

Evidence

  • It can be demonstrated on an objective appraisal of the case that some serious evidence supporting a prosecution has not been carefully considered (R (on the application of Joseph) v DPP [2001] Crim LR 489; R (on the application of Peter Dennis) v DPP [2006] EWHC 3211);
  • It can be demonstrated that in a significant area a conclusion as to what the evidence is to support a prosecution is irrational (R v DPP, ex p. Jones (Timothy) [2000] Crim LR 858; or
  • The decision is perverse, that is, one at which no reasonable prosecutor could have arrived (R v DPP, ex p. C [1995] 1 Cr App R 136).

Policy

  • CPS policy, such as that set out in the Code for Crown Prosecutors, has not been properly applied and/or complied with (R v DPP, ex p. C [1995] 1 Cr App R 136; R v DPP, ex p. Manning [2001] QB 330; R v Chief Constable of Kent, ex p. L; R v DPP, ex p. B (1991) 93 Cr App R 416). This includes situations where irrelevant considerations have been taken into account (R v DPP, ex p. Jones (Timothy) [2000] Crim LR 858);
  • The decision has been arrived at because of an unlawful policy (R v DPP, ex p. C [1995] 1 Cr App R 136); or
  • It can be demonstrated that the decision was arrived at as a result of fraud, corruption or bad faith (R v DPP, ex p. Kebilene [2000] 2 AC 326; R v Panel on Takeovers and Mergers, ex p. Fayed [1992] BCC 524).

Previous Judicial Decisions

  • Where an inquest jury has returned a verdict of unlawful killing, the reasons why a prosecution should not follow are not legally and evidentially robust, and have not been clearly explained (R v DPP, ex p. Manning [2001] QB 330; R (on the application of Peter Dennis) v DPP [2006] EWHC 3211); or
  • Where there have been proceedings in the civil court, the civil courts decision has not been carefully considered (R v DPP, ex p. Treadaway, The Times, October 31 1997).

It is essential to ensure that the reasons for decisions, and in particular public interest considerations giving rise to decisions, are documented. This record can be used, if necessary, to demonstrate that the decision to prosecute was taken only after a full and proper review of the case. Interested parties should also be informed of the reasons for decisions.

Where a decision is challenged, and is likely to be the subject of a judicial review, the decision should be re-reviewed. Where, on a re-review, it is decided that the original decision was wrong, immediate action should be taken (if possible) to rectify the decision. This will result in quicker resolution of the issue for all parties and may avoid the need for judicial review proceedings to be brought

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Case Law: Adults

Judicial Review of Decisions not to Prosecute

Applications for judicial review of decisions not to prosecute have been successful in a number of cases:

R v DPP, ex p. C [1995] 1 Cr App R 136

The Divisional Court held that it has the power to interfere with a decision not to prosecute where the prosecutor fails to follow the settled policy set out in the Code for Crown Prosecutors. The court expressly stated, however, that this power should be sparingly used. The court can only act if it demonstrates that the respondent arrived at the decision not to prosecute because of some unlawful policy, or because the DPP failed to act in accordance with settled policy (as set out in the Code), or because the decision was perverse. The issue in this case was not approached in accordance with the Code. Moreover, the prosecutor had looked to convict on a less serious offence and failed to bring his mind to bear on the question whether the evidential sufficiency criteria were satisfied in relation to the more serious offence.

R v DPP, ex p. Jones (Timothy) [2000] Crim LR 858

This case concerned the DPPs decision not to prosecute a company or its managing director for the manslaughter of the claimants brother following an accident at work. The Divisional Court held that the DPP had correctly identified the objective test for gross negligence manslaughter, but had allowed a lack of subjective recklessness to determine the decision not to prosecute. In addition, the DPP had not addressed any other factors which, in the absence of subjective recklessness, would tend to run counter to the prospects of a successful conviction. The DPPs determination that the danger had not been sufficiently obvious was held to be irrational.

R v DPP, ex p. Treadaway, The Times, October 31 1997

The DPP decided not to prosecute five police officers for an assault on the appellant in respect of which he had been awarded damages by the High Court. In allowing the application, the Divisional Court held that, whilst the civil courts determination was not binding on the DPP, the High Court judge had set out detailed findings and firm conclusions which required very careful analysis if the DPP was not to institute a criminal prosecution. The High Courts decision in the civil case had not received the analysis it deserved, so the Divisional Court directed the CPS to review its decision not to prosecute.

R v DPP, ex p. Manning [2001] QB 330

The Divisional Court held that whilst the DPP was not under a general duty to give reasons for a decision not to prosecute, it was reasonable to do so where no compelling grounds suggested otherwise. In circumstances where an individual had died whilst in the custody of the State and a properly directed inquest had reached a verdict of unlawful killing, reasons should be given for a decision not to prosecute.

The court additionally held that the prosecutor had failed to take into account certain critical evidential matters and had applied, in considering the prospect of success, a higher test than was required under the provisions of the Code. The Code required that a prosecution, if brought, would more likely than not result in a conviction. The CPS was not required to establish the equivalent standard of proof as that of a jury or magistrates court when considering whether or not to bring a conviction.

R (on the application of Joseph) v DPP [2001] Crim LR 489

The CPS had decided not to proceed with a prosecution on the basis that there was insufficient evidence to enable it to overcome a probable defence of self-defence. The Divisional Court ordered the CPS to review its decision not to continue with the prosecution because it had failed properly to consider the evidence, in particular that pertaining to the issue of self-defence.

R (on the application of Peter Dennis) v DPP [2006] EWHC 3211

The DPP decided not to prosecute an employer for gross negligence manslaughter arising out of the death of his employee in an industrial accident. The Administrative Court found that the relevant prosecutor had not dealt with the real thrust of any case that might have been brought against the employer. Moreover, the prosecutor had not provided clear reasons as to why the verdict of an inquest jury should not have led to a prosecution. The judge felt that it was seriously arguable that a different decision might be made once account was taken of those matters, and therefore referred the matter back to the CPS. However, the court emphasised that the final decision would rest with the prosecutor and not the court.

The judge stated that the court is likely to order a review of decisions not to prosecute where:

  • It can be demonstrated on an objective appraisal of the case that a serious point or serious points supporting a prosecution have not been considered;
  • It can be demonstrated that a conclusion in a significant area about the nature of the evidence supporting a prosecution, is irrational;
  • The points are such to make it seriously arguable that the decision would otherwise be different; or
  • Where an inquest jury has found unlawful killing, the reasons why a prosecution did not follow have not been clearly expressed.

The courts have repeatedly stressed that the power to review a decision not to prosecute is one that is to be sparingly exercised. Judicial review applications have, therefore, been unsuccessful in a number of cases.

Patrick John Lewin v CPS [2002] EWHC 1049

The Divisional Court refused an application for judicial review of a CPS decision not to prosecute for manslaughter by gross negligence. The CPS had sent the claimant a letter setting out the decision to not to prosecute, together with a clear explanation of the reasons for that decision. The prosecutors conclusion in relation to the evidence as a whole, and his line of reasoning in relation to causation, were faultless. There was no realistic possibility of demonstrating beyond reasonable doubt that a reasonable person in the position of the accused would have foreseen the risk of death. There was no failure on the part of the CPS to comply with the Code. Moreover, the decision not to prosecute was not premature, nor was it tainted by an earlier decision not to prosecute.

R (on the application of Da Silva) v DPP [2006] EWHC 3204

The Divisional Court dismissed an application for judicial review of the DPPs decision not to prosecute any individual police officer for murder or gross negligence manslaughter following the fatal shooting of the claimants cousin. The court held that the DPPs decision would be lawful if it was taken in accordance with the Code and it was a decision reasonably open on the material before him. The decision had been taken by a senior and highly experienced Crown Prosecutor and had been reviewed by the DPP himself and by leading counsel, both of whom had very great practical experience of serious criminal trials. Furthermore, the decision-making process had been lengthy, careful and thorough. The Crown Prosecutor had directed himself by reference to the Code and had applied the evidential test properly in relation to each of the individuals.

Marshall v DPP [2007] UKPC 4 

This case concerned an appeal against the refusal of an application for judicial review of a decision of the DPP not to bring any prosecution in respect of the appellants son, who had been shot by police officers. The DPPs decision not to prosecute the officers was based on his view that there was insufficient evidence on which to base a charge. The appellant contended that the DPP had given insufficient reasons for his decision and that therefore the courts task in evaluating that decision was impossible.

The Privy Council held that the DPP was not required to explain his reasoning further, as it was not apparent that he had misapprehended or left out of account an important piece of evidence, nor had his decision been inexplicable and aberrant. The issue was whether the DPP could sensibly have decided as he did on the evidence. In this case, the court held that he could. The appeal was therefore unsuccessful.

Conditional Cautions

The Divisional Court has made it clear in R (on the application of Guest) v DPP 2009 that, as with a simple (or "police" caution), the decision to administer a conditional caution may be judicially reviewed. If showen 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 then caution set aside.

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Judicial Review of Decisions to Prosecute

A decision to bring a prosecution may be judicially reviewed, but only where there are exceptional circumstances, such as demonstrable fraud, corruption, mala fides, or failure to follow settled policy on the part of the decision-maker. The courts have reasoned that judicial review is inappropriate where an alternative remedy exists, in that the matters complained of could be considered by the criminal court on an application to stay the prosecution as an abuse of process.

R v Panel on Takeovers and Mergers, ex p. Fayed [1992] BCC 524

In the Court of Appeal, Steyn L.J. expressed the view, obiter, that in the absence of evidence of fraud, corruption or mala fides, judicial review would not be allowed to probe a decision to charge individuals in criminal proceedings.

R v Inland Revenue Commrs, ex p. Allen [1997] STC 1141

The High Courts Queens Bench Division held that a decision to prosecute is amenable to judicial review if it is an unjustified departure from established prosecution practice, or even if, without reference to any wider policy or practice, it is unfair insofar as it amounts to a breach of contract or representation. However, the court observed that judicial review applications of decisions to bring criminal prosecutions would only rarely succeed.

R v DPP, ex p. Burke [1997] COD 169

The High Courts Queens Bench Division refused an application for judicial review in respect of a decision to prosecute where proceedings had originally been discontinued, but where the CPS had given an indication that the matter might be reconsidered exceptionally, if further significant evidence were to become available. Proceedings had been reinstated in the absence of further evidence, after a personal review by the DPP. The court stated that the DPP had discretion to form her own view on the facts before her. The DPP rightly concluded that the decision to discontinue was clearly wrong, and it was not necessary for there to be special circumstances in addition to this fact before the DPP could exercise her discretion to reinstate a prosecution. The history of the case was a factor to consider, but was not determinative as to what the public interest required.

R v Liverpool City JJ. and the CPS, ex p. Price (1998) 162 JP 766

The Divisional Court held that the circumstances would have to be exceptional for it to interfere with a decision to prosecute on the ground that the decision is perverse or contrary to the Code for Crown Prosecutors.

R v DPP, ex p. Kebilene [2000] 2 AC 326

The House of Lords quashed the declaration of the Divisional Court that the continuing decision of the DPP to proceed with the prosecution was an unlawful act. Absent dishonesty or bad faith or some exceptional circumstance, the decision of the DPP to consent to a prosecution is not amenable to judicial review.

The House stated that once the Human Rights Act came into force, arguments that domestic legislation is incompatible with the Convention should be brought during the trial or appeal process. (Defendants would not be entitled to an additional remedy of judicial review.) However, the majority of the House believed that in blatant and obvious cases it might be open to a defendant to submit that the prosecution is an abuse of process, on the basis that it is so unfair and wrong that the court should not allow a prosecutor to proceed with it. Such applications would, however, only be appropriate in cases of an exceptional nature.

Their Lordships additionally held that there are two categories of challenges in which the defence may make an application to stay proceedings. The first is where the defence allege that a statutory provision breaches the European Convention of Human Rights and Fundamental Freedoms. The second is where the grounds for the application are that the Convention has been breached in some other way, for example, through the way evidence has been obtained.

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Case Law: Youths

Judicial Review of Decisions to Prosecute or not to Prosecute

In certain circumstances, the courts have been willing to judicially review prosecutorial decisions relating to youths. The following cases should be noted in this context.

R v Chief Constable of Kent, ex p. L; R v DPP, ex p. B (1991) 93 Cr App R 416

The Divisional Court held that the discretion of the CPS to continue or discontinue proceedings against a youth may be judicially reviewed. However, the court stated that an application for judicial review would only be successful where it could be shown that the decision was made regardless of, or clearly contrary to, a settled policy of the DPP evolved in the public interest (such as the policy of cautioning juveniles).

R (on the application of F) v CPS and Chief Constable of Merseyside Police [2003] EWHC 3266

This case 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 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. The court noted that, save in exceptional circumstances, it was inappropriate for it to retake decisions which Parliament has entrusted to the CPS.

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