R Abida Chaudhry v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Nicol,or |
| Judgment Date | 11 October 2016 |
| Neutral Citation | [2016] EWHC 2447 (Admin) |
| Docket Number | Case No: CO/2944/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 October 2016 |
[2016] EWHC 2447 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Nicol
Case No: CO/2944/2015
Dan Squires QC (instructed by Bhatt Murphy Solicitors) for the Claimant
Duncan Penny QC (instructed by Crown Prosecution Service) for the Defendant
Hearing date: 27 May, 2016
Approved Judgment
INTRODUCTION
Mrs Chaudhry ("the Claimant") and her elder son ("Ahmed") were victims, truly so-called, of a dreadful wrong. The Claimant's younger children ("Ali" and "Aqsa") were abducted by her then husband ("Choudhry", he and his family apparently use a different spelling of their surname) in April 1998, when aged 3 and 2 respectively and removed from this jurisdiction to Pakistan. By the time they returned to this country in late 2012, they had become estranged from the Claimant and now have no contact with her. In 2013, Choudhry was located in the Netherlands. In 2014, he was extradited to this country pursuant to a European Arrest Warrant; subsequently, he was tried and convicted on two charges of child abduction and sentenced to 7 years' imprisonment.
The Claimant has always taken the view that Choudhry's sister, Farkhanda Choudhry ("FC"), apparently a dentist, was deeply implicated (to put it no higher) in the abduction of Ali and Aqsa. Other than serving a short sentence of imprisonment for contempt of court in 1998 when resolutely refusing to assist the Court in connection with the whereabouts of Ali and Aqsa very shortly after their abduction, no proceedings have been brought against FC and she has never been charged in connection with the abduction. The Defendant ("the CPS") declined to prosecute FC, taking the view in November 2013 that there was no realistic prospect of a conviction. That view was reconsidered after Choudhry's trial and conviction but the CPS conclusion remained unaltered. The Claimant alleged that the CPS should have prosecuted FC and maintained this view even after Choudhry's conviction and sentence.
Various exchanges followed as to the scope of the CPS Victims' Right of Review Guidance ("the VRR"). The key issue related to a part of para. 11(iii) of the VRR. That paragraph and others will be set out more fully later and set in context but, for the moment, it suffices to set out the terms of para. 11(iii) itself:
"The following cases DO NOT fall within the scope of the VRR.
(iii) cases where charges are brought …..against some (but not all) possible suspects;"
In the event, on 18 th June, 2015, the Claimant commenced proceedings for Judicial Review, claiming that the CPS erred in law in its application of the VRR and/or that the VRR Guidance is itself unlawful and contrary to Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012, establishing "minimum standards on the rights, support and protection of victims of crime" ("the Directive") and common law, on the following grounds:
i) That the CPS had interpreted para. 11(iii) of the VRR as an absolute bar on its reviewing the decision not to prosecute FC; the imposition of such a bar was unlawful.
ii) Alternatively, if para. 11(iii) of the VRR did not impose an absolute bar, that the CPS had acted unlawfully in treating it as doing so and/or in failing to indicate to the public the circumstances in which a review apparently barred by para. 11(iii) would nevertheless be conducted.
In the meantime, the CPS, while maintaining that the VRR scheme did not entitle the Claimant to a further review of the decision not to prosecute FC, nonetheless decided on 15 th June, 2015 – by way of what it termed an "exceptional course" — to conduct such a review and did so, between June and November 2015. The upshot of this review was that the CPS reached the same conclusion as before: there was no realistic prospect of a conviction of FC. The Claimant does not seek to challenge the substance of that decision.
Nonetheless, the Claimant has pursued this claim for Judicial Review. Giving permission on the 25 th November, 2015 (but, it would seem without being aware of the final outcome of the review), Wilkie J said this:
"1. It still appears that the decision challenged is claimed by the defendant to have been taken on the ground that the claimant's application for a review fell outside the review scheme as a matter of absolute policy and that any ad hoc review agreed to be undertaken would be outside the review scheme.
2. It remains arguable, therefore, that the defendant's construction of the scheme is erroneous or that the terms of [the] scheme constitute an unlawful fetter on the DPP's discretion to grant a review pursuant to the scheme.
3. Even though what is now on offer, on an ad hoc basis outside the ambit of the scheme, may in substance amount to the same or similar, it is arguable that the entitlement of the claimant to have the scheme applied to her is a matter of substance and not academic. "
The result, it may at once be noted, is that these proceedings have continued although the Claimant no longer seeks and is not in a position to obtain any practical benefit with regard to the prosecution of FC; the prospect of any such prosecution has gone. On the material available to us, FC may well be lucky – but I cannot express any conclusion in this regard as the merits of the decision not to prosecute her have not been argued before us.
In the course of these proceedings, the CPS indicated that para. 11(iii) of the VRR Guidance would be amended to make it clear that the CPS may exercise its discretion to depart from the strict terms of the scheme to accept cases that would otherwise be excluded, when there was good reason to do so. Revised guidance to this effect was to be published on the 21 st July, 2016 – and, as I understand it, has now been published ("the VRR 2016").
This proposed amendment to the VRR did not serve to bring the proceedings to an end. The Claimant continued to maintain her two grounds of complaint, though, at least in my judgment and as Nicol J observed in argument, the Claimant's position has shifted. Initially, the Claimant challenged what she alleged to be an absolute bar to the CPS considering a claim not strictly falling within para. 11(iii) of the VRR. Now, there appears to be an assertion of a general right to a review of a decision not to charge one or more of a number of suspects, subject only (as the Claimant would have it) to a discretion in exceptional circumstances to refuse to accept such a case.
In a nutshell, the rival cases as ultimately deployed before us can be outlined as follows. For the Claimant, Mr Squires QC, submitted that para. 11(iii) of the VRR was unlawful. Apart from declaratory relief, he sought the quashing of para. 11(iii) of the VRR. Alternatively, he contended that the words "or against some (but not all) possible suspects" should be deleted from para. 11(iii) of the VRR. In the further alternative and as to the amendment to the VRR, Mr Squires submitted that it was not proportionate to replace the right to a review "…with a faint hope that a discretion will be exercised in victims' favour…". Instead, the right course was "…to recognise that there is generally a right to a review, but to indicate that there may be exceptional circumstances in a particular case where it is not possible fairly and proportionately to conduct the review…" – though even that, Mr Squires asserted, was difficult to reconcile with the right accorded by the Directive and the common law. Moreover, the criteria on which the CPS would exercise a discretion to review (in a case falling outside the VRR) were not transparent – even under the VRR as amended.
For the CPS, Mr Penny QC, submitted that there were "sound, rational and compelling reasons associated with the role of the independent prosecutor" in our adversarial system, not least given the feature of jury trials, which justified the scope of the VRR and, in particular, para. 11(iii) thereof. Operational prosecutorial discretion was involved, together with questions of practicality. The facts of this case demonstrated that the VRR did not operate as an absolute bar to reviewing a decision not to prosecute. Any doubt in this regard was in any event resolved by the amendment contained in the VRR 2016 (set out below). So far as the exercise of discretion was concerned, this was itself informed by publicly available CPS Code for Crown Prosecutors, January 2013 ("the Code").
THE STANDING OF THE CLAIMANT
At the outset, I confess to considerable reservation as to proceeding with this claim beyond dismissing it, summarily, on the simple ground that the Claimant can obtain no substantive relief beyond that which she has already obtained – a review, the outcome of which is unchallenged before us. Instinctively, I incline to the view that these proceedings are thus essentially academic from the Claimant's perspective – in that she has no real interest in a consideration of the lawfulness of the VRR other than so far as it has impacted on her claim. The proceedings are publicly funded.
It was, however, urged on us by Mr Squires that the Claimant did not lack standing to pursue this claim. Having regard to R(O) v Secretary of State for International Development [2014] EWHC 2371 and the authorities there cited, at [12] and following, it was submitted that the Claimant had a "sufficient interest in the matter", within S.31(3) of the Senior Courts Act 1981. The test excluded a "mere busybody" but was not to be approached unduly restrictively; the Claimant had a legitimate concern in the matter and, in any event, judicial review was a means of vindicating the rule of law – a...
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