'L' v DPP & Commissioner of Police for the Metropolis

JurisdictionEngland & Wales
JudgeSir John Thomas,Mr Justice Simon
Judgment Date12 March 2013
Neutral Citation[2013] EWHC 1752 (Admin)
Docket NumberCO/2523/2012 CO/4195/2012
CourtQueen's Bench Division (Administrative Court)
Date12 March 2013

[2013] EWHC 1752 (Admin)




Royal Courts of Justice


London WC2A 2LL


Sir John Thomas Pqbd

Mr Justice Simon

CO/2523/2012 CO/4195/2012

Director of Public Prosecutions & Commissioner of Police for the Metropolis
Kevin Pratt
Crown Prosecution Service (Northumbria)

The Claimant L appeared in person

Mr R Birch (instructed on a Direct Access basis) appeared on behalf of the Claimant Kevin Pratt

Mr A Edis QC (instructed by the CPS Appeals Unit) appeared on behalf of the Director of Public Prosecutions and the Crown Prosecution Service

Mr E Gold appeared on behalf of the Commissioner of Police for the Metropolis

Sir John Thomas

There are before us two renewed applications for judicial review in each of which the claimants challenge the decision of the Crown Prosecution Service not to prosecute. In one of them, the Commissioner of Police for the Metropolis is also a party. The court certifies that this decision is one which may be cited as authoritative.


The applicable principles


The law is very clear as to challenges to decisions of the Crown Prosecution Service. It is set out in a decision of this court in the R v DPP ex parte C 1995 1 Cr App R 136 at pages 140-141.


It is not necessary to restate the law, bearing in mind that these are renewed applications. But it was made clear in that case by Kennedy LJ that the grounds upon which challenge can be made are very narrow: (1) because there has been some unlawful policy; (2) because the Director has failed to act in accordance with his own set policy; or (3) because the decision was perverse; that is to say it is a decision that no reasonable prosecutor could have reached.


In subsequent decisions, including Sharma v Brown-Antoine [2007] 1 WLR 780 being against DPP ex parteR v Inland Revenue Commissionerex parte Mead [1993] 1 AER 772 in Kostuch v Attorney-General for Alberta [1995] 128 DLR 440, and in R(Pepushi) v Crown Prosecution Service [2004] IMAR 549 and R(Birmingham) v Director of the Serious Fraud Office [2007] 2 WLR 635, the courts have indicated that these applications will succeed only in very rare cases.


That is for the good and sound constitutional reason that decisions to prosecute are entrusted under our constitution to the prosecuting authorities, in this case the Director of Public Prosecutions and those who work under him in the Crown Prosecution Service.


It is very important that the constitutional position of the Crown Prosecution Service as an independent decision maker is respected and recognised. The courts have therefore adopted this very strict self denying ordinance. They will, of course, put right cases where an unlawful policy has been adopted or where there has been a failure to follow policy, or where the decisions are perverse. But each of those is likely to arise only in exceptionally rare circumstances and that must be born in mind.


What is also important these days is that the Crown Prosecution Service has been moving to a new policy. As a result of a decision of the Court of Appeal Criminal Division Killick [2011] EWCA Crim 1608, the Crown Prosecution Service has been looking at new processes for reviewing decisions of prosecutors not to proceed. As we understand it, the final version of that process will be published shortly.


The two cases before us illustrate the way in which the new process is likely to work. In each of them a judicial review was commenced. After the commencement of the judicial review, in one case on the CPS's own initiative, and the other at the suggestion of the court, the decision not to prosecute was reviewed by a more senior prosecutor. In the one case, the review was an exceptionally detailed document to which I shall refer in due course. In the other, it is in a short email.


It must, of course, be for the Crown Prosecution Service to decide upon the type of review of the decision that is made. Some cases will call for very detailed review; others can be dealt with in short order. What is important to the future conduct of such cases is to recognise that the CPS now has this procedure in place. It has this consequence. 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. That is because the CPS will have independently reconsidered the position and, unless it can be shown that that decision is within one of the three categories I have mentioned, it will therefore be the more difficult to show that the decision is one that can be successfully challenged.


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.


There may, of course, be cases where the right of review has not been taken up. In such a case, it seems to me that in the acknowledgement of service, the CPS should set out its position. They may wish to say: yes, we would like to offer a review, or they may consider that what they have done so far is sufficient. It seems to me, in those circumstances, that the papers should pass to the single judge who can, if the CPS wishes to undertake a review, then adjourn the matter pending that review. If, of course, the CPS does not wish to conduct a review on the basis they have reviewed it sufficiently, then the judge will make his decision on the basis of the papers.


If a review has taken place after the launch of judicial review proceedings, then of course, if the applicant is content, that is the end of the matter. If he is not content, then it seems to me that, in those circumstances, the parties must apply to the judge for appropriate directions. Those would include, first of all, an amendment to the original application to ensure that the challenge to the further review is properly before the court. Secondly, that new grounds should be served indicating why it is said that the review fails in one of the three respects I have set out. And, thirdly, for directions for the CPS to respond. All of that should be done before the judge considers permission. The judge will then, when he has those documents, be able to decide on whether permission should be granted.


I would hope that hereafter these applications should be rare. The right of review is an important development put forward by the Director. As has been made clear, in cases for the future, the CPS may well take the view that it will seek costs against persons who, having had the benefit of such a review, or who have come to this court without seeking such a review.


It must be recalled that the likelihood of success in such cases will be very very small, given the constitutional position of the CPS.


I am not saying that there will not be such a case, but the chances of a claimant succeeding in them, given the new procedure adopted by the Director of Public Prosecutions, are likely to be small. There is no reason why in cases where a challenge has been brought inappropriately hereafter, the CPS should not be entitled to seek the costs from a person who is not successful in a challenge made. These cases consume very considerable resources from the CPS and it cannot be right that people should feel that they can have what is in effect a "free ride" in this court in the light of what the CPS have done. Against those observations I turn to look at the facts of these two quite different cases.


The first is the claimant "L". It is brought by the grandparent of a very young child. The child was born on 6 March 2007 and his father is the claimant's son. By the time of the events to which I will shortly refer, the parents were separated but had done so on amicable terms; both the grandparents and parents of the child saw him and his brother from time to time.


The child was not a well child. From the age of about 4 months, he suffered from Dravet's Syndrome, a severe form of epilepsy. He had frequent episodes, including episodes of falling to the ground unconscious. He attended a community school from September 2010.


In October 2010, his mother, who was then 28, began a relationship with a much younger man, Cameron Rose, who was then 16. He had had a disturbed behavioural past. That relationship was kept secret to the mother, Cameron Rose and two of their mutual friends who had introduced them. The incidents which gave rise to the death of the child thereafter occurred.


On 14 December 2010 staff at the school noted that the child had injuries to his face. On 17 January 2011, he was taken to hospital with injuries. An explanation was given by his mother that this had occurred in the course of one his episodes. He did not go to school after that. On 21 January 2011, an ambulance was called to the home of the mother. It was found that the child was severely injured. An explanation was given that he had had a fit and fallen. He was taken to hospital. Although resuscitation attempts were made, he was shortly pronounced dead.


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