R C v DPP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 27 October 2014 |
| Neutral Citation | [2014] EWHC 4588 (Admin) |
| Date | 27 October 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2396/2014 |
[2014] EWHC 4588 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
Mr Justice Stewart
CO/2396/2014
Mr Southey QC appeared on behalf of the Claimant
Mr Little appeared on behalf of the Defendant
The Second Defendant did not appear and was not represented
Introduction
On 23rd May 2014 the claimant issued judicial review proceedings seeking an order quashing a decision taken by the defendant, under section 23(3) of the Prosecution of Offences Act 1985 ("the 1985 Act"), that the proceedings against Mr Thakrar should be discontinued. Further relief was also sought in the claim form.
Mr Thakrar was joined as an interested party by order of Holman J sealed on 11th June 2014.
On 18th July 2014 the claimant and the first defendant (the DPP) signed a draft consent order, in which the DPP conceded that the decision to discontinue the criminal proceedings against Mr Thakrar was unlawful and that proposed order continued:
"1. The claimant be granted permission to bring her claim limited to remedies 1, 2 and 5 set out in section 7 of the judicial review claim form.
2. The decision to discontinue the said criminal proceedings and the notice of discontinuance provided by the first defendant to the second defendant (pursuant to section 23(3)) of the Prosecution of Offences Act 1985 shall be quashed. Accordingly it is hereby declared that the said criminal proceedings remain extant.
3. The first defendant do pay the claimant's reasonable costs of this claim to be determined by the court, if not agreed."
A statement of reasons was attached to the draft consent order (remedies 1 and 2 and 5 in section 7 of the claim form were an order quashing the decision, a declaration that proceedings against Mr Thakrar remain pending before the Manchester City Magistrates' Court and costs.)
On 31st July 2014 Mr Thakrar filed summary grounds for defending the claim. These were drafted by counsel and ran to 50 paragraphs.
The papers came before me and by order sealed on 18th August 2014 I granted permission and said that in the light of the interested party's submissions there would have to be a substantive hearing.
Since that date Mr Thakrar's lawyers have ceased to act for him and he has not attended today though he was offered by the DDC high security the opportunity to attend by video link. I have already given a detailed ruling on why I have proceeded in his absence.
The position of the claimant and the DPP remains the same except that the DPP says that her concession to pay the costs of the claimant was on the basis of the claim being compromised expeditiously and, because of the position taken by the interested party, that has not proved possible. Therefore, if the decision is quashed, contrary to the written submissions of Mr Thakrar, the DPP accepts she will be liable for the claimant's costs of the claim up to and until the service of the interested party's summary grounds for defending the claim, but submits that Mr Thakrar should be ordered to pay the costs of both the claimant and the DPP after that date.
Background
Mr Thakrar is a prisoner serving a sentence of life imprisonment, with a minimum term of 35 years. The claimant, a prisoner officer at HMP Manchester, alleges that on 2nd August 2013 Mr Thakrar pressed the alarm in his cell. She opened the hatch to the cell and Mr Thakrar threw excrement in her face.
Mr Thakrar was summonsed for an offence of common assault. An initial hearing was adjourned until 24th October 2013, with Mr Thakrar to attend by video link. The DPP says that Mr Thakrar refused to come to the video link booth on 24th October 2013 and was therefore deemed to have entered a not guilty plea. The magistrates were told that the trial would have to take place by magistrates, but physically at the Crown Court because of the security status of Mr Thakrar.
The DPP says that thereafter a representative of the CPS was informed that Mr Thakrar was likely to require an armed escort to court for trial and that he would need to be accompanied by at least six members of the prison service.
On 7th November 2013 a Senior Crown Prosecutor reviewed the case in accordance with the Code for Crown Prosecutors (the Code). This was because of the question of the likely costs of holding the trial had been raised as an issue. The prosecutor applied the Code and decided that the case should proceed to trial and in relation to the public interest test wrote:
"In my view it is in PI to proceed despite being the sentence being insignificant (in the scheme of things)."
A trial date of 3rd March 2014 was fixed. On 2nd January 2014 the CPS were informed by the officer in the case that Mr Thakrar would not require a firearms escort to court.
At a hearing on 31st January 2014 a District Judge required an explanation from the branch Crown Prosecutor as to why the prosecution of Mr Thakrar was being proceeded with. By 5th February 2014 the Deputy Chief Crown Prosecutor made a decision to discontinue the prosecution.
The decision dated 3rd March 2014 included the following:
"I have noted the contents of your victim impact statement and appreciate the impact of the offence upon (you). Nevertheless consideration of the impact upon you can only be one part of the public interest test. This test must consider whether it is in the interest of the public as a whole to pursue a case. I recently received further information regarding the defendant, which in accordance with my statutory role required me to consider the issues of policing and security which arose from the defendant's current location and the risk to public safety. I also consulted with the Deputy Chief Crown Prosecutor, Ian Rushden, when making the decision in the light of this information. I hope you will appreciate this was a very difficult decision for us to make and careful consideration was given before we decided that it is no longer in the public interest for the matter to proceed to trial."
According to the DPP the five matters taken into account by the Deputy Chief Crown Prosecutor were:
(a) the real concern that Mr Thakrar would attempt to escape while being brought to court, especially in the context of the local area which had seen the impact of prisoners escaping in cases such as Dale Cregon.
(b) if convicted it "would not add one single day to the sentence he is currently serving."
(c) paragraph 4.12(c) of the Code.
(d) paragraph 4.12(f) of the Code. In doing so he had considered this question, properly taking into account the disruption to prisons, prison escort services and the court
(e) as Mr Thakrar had been moved to a different prison it was unlikely he would come into contact with the claimant again.
Section 3 of the 1985 Act
This section makes it clear that it is for the DPP to make decisions regarding prosecutions and not for the courts. The remedy of judicial review in circumstances where the DPP has decided not to prosecute should be sparingly exercised ( R v DPPex parte C [1995] 1 Cr App R 140). However, the corollary to this is that where the DPP accepts that she has erred in law in reaching a decision to discontinue proceedings the court should also have regard, and give serious weight, to that conclusion.
The Code
Section 10 of the 1985 Act requires the DPP to issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them in determining any case "where proceedings have been instituted, whether they should be discontinued …"
The relevant addition of the Code is dated January 2013. The material test has two stage:
(i) the evidential stage followed by
(ii) the public interest stage.
There is no issue about the first stage. The decision was taken under the public interest stage. I shall cite some essential passages in relation to that second stage:
"4.8… A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour…
4.9 When deciding the public interest, prosecutors should consider each of the questions set out below in paragraphs 4.12 a) to g) so as to identify and determine the relevant public interest factors tending for and against prosecution. These factors, together with any public interest factors set out in relevant guidance or policy issued by the DPP, should enable prosecutors to form an overall assessment of the public interest…
4.11. It is quite possible that one public interest factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed.
4.12 Prosecutors should consider each of the following questions:
a. How serious is the offence committed?
b. What is the level of culpability of the suspect?
c. What are the circumstances of and the harm caused to the victim?
The circumstances of the victim are highly relevant. The greater the vulnerability of the victim, the more likely it is that a prosecution is required…
A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public.
…
In deciding whether a...
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