R (DPP) v Sheffield Crown Court Peter Barry Goodison and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Mr Justice Mitting |
| Judgment Date | 20 June 2014 |
| Neutral Citation | [2014] EWHC 2014 (Admin) |
| Docket Number | Case No: CO/12449/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 June 2014 |
and
[2014] EWHC 2014 (Admin)
The Lord Chief Justice of England and Wales
Lord Justice Elias
and
Mr Justice Mitting
Case No: CO/12449/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
G Treverton-Jones QC (instructed by CPS) for the Claimant
The other parties were not represented at the hearing
Hearing date: 3 April 2014
Lord Thomas of Cwmgiedd, CJ:
In June 2011 the first interested party, Mr Goodison, the driver of a bus, and two other drivers, the drivers of a Nissan and the driver of an Isuzu, were involved in an accident in which a pedestrian was killed. The claimant, the Director of Public Prosecutions (the DPP), decided through the CPS that Mr Goodison should be prosecuted for causing death by careless driving. He was committed to the Crown Court at Sheffield on 19 June 2012.
Mr Goodison was tried at the Crown Court at Sheffield. On 6 June 2013 he was acquitted. After the acquittal the judge determined that the failure to prosecute the other driver involved in the collision and the decision only to prosecute Mr Goodison were improper acts or omissions. He therefore made an Order that the CPS should pay the costs incurred by Mr Goodison under s.19 of the Prosecution of Offences Act 1985 (the 1985 Act). The DPP challenges, with the permission of the single judge, the Order by way of an application for judicial review. We have to consider not only whether the judge erred in law but also whether, even if he did, we have jurisdiction to hear the application in view of sections 28(2) and 29(3) of the Senior Courts Act 1981.
We must briefly set out the facts in a little more detail.
The judge's initial view of the decision to prosecute and the trial
The trial was initially listed on 1 October 2012. The case was adjourned to 22 April 2013. A judge was assigned to hear the trial. The judge decided to hold a short hearing in chambers; we were provided with a transcript. The judge expressed the view that the decision to prosecute Mr Goodison should be considered afresh, as in his view it was unfair to prosecute him without also prosecuting the driver of the Isuzu. He made clear that he was inclined to invoke the Farquharson Guidelines, guidance originally formulated in 1986 for the CPS in relation to the conduct of a prosecutor but which has since been revised; the guidance, which is not legally binding, refers to the steps a judge should consider taking if he disagrees with the decision of the prosecutor.
Counsel thereafter spoke to the Senior District Crown prosecutor who told him the case had been reviewed and it should proceed. On the following day, 23 April 2013, the judge e-mailed the DPP asking him to review the decision to proceed; the judge made it clear in the e-mail that he would be happy to abide by the decision of the DPP. The DPP agreed that the case would be reviewed by an experienced lawyer, preferably a Crown Advocate. The judge was informed and the trial was adjourned.
On 10 May 2013 a Crown Advocate within the employ of the CPS reviewed the case. He had no connection with the case or the location of the office where the decision to prosecute had been made. He concluded there was a realistic prospect of conviction of Mr Goodison and that the driver of the Isuzu should not be prosecuted. That report was reviewed by the Chief Crown Prosecutor and the DPP. The decision was made that the case should proceed. The judge was informed. There then followed an e-mail exchange between the judge and the Chief Crown Prosecutor. The judge stated in the e-mails that he would try the case and see what the jury made of it. The trial was re-fixed.
The prosecution called its witnesses, including the drivers of the Nissan and the Isuzu. No application was at any time made to stay the case as an abuse of process; no submission of no case to answer was made at the conclusion of the prosecution case. Mr Goodison gave evidence. The case was then summed up to the jury who acquitted him.
The decision of the judge on costs
After the acquittal the judge told counsel he was considering making the CPS pay the whole of the costs under s.19 of the 1985 Act. He indicated that his preliminary view was that he could act on his own motion and the failure to prosecute the driver of the Isuzu was "an unnecessary or improper act or omission" and that therefore the CPS should pay the entire costs. As counsel had not been prepared to make submissions on the issue, he decided to make an order under s. 19 of the 1985 Act, with liberty to the CPS to apply if they wished to object.
On the following day he handed down a preliminary judgment, to be made final after hearing submissions later in the month. He set out his reasons for his conclusion that, under Regulation 3.1(b) of the Costs in Criminal Cases (General) Regulation 1986/1335 and Rule 76.8(3)(b) of Crim PR, there were two improper acts or omissions — the failure to proceed against the driver of the Isuzu and the decision only to prosecute Mr Goodison. In making that determination, he applied the law as set out in DPP v Denning (1992) 94 Cr App R. He considered that once it had been decided not to proceed against the driver of the Isuzu car, it was "wholly unfair" to continue against Mr Goodison. He made clear that the review he had requested prior to the trial was not an independent review; it had not been undertaken by counsel and had ignored the views he had expressed to the CPS.
The Order he made was to the effect the CPS should pay any costs from the time the decision was made not to proceed against the Isuzu driver and that all costs not covered by the order against the CPS should be paid under a defendant's costs order under s.16(2)(b) of the 1985 Act.
On 19 June 2013 the CPS lodged written submissions prepared by eminent leading counsel. The judge subsequently heard oral submissions from both the CPS and from solicitors instructed on behalf of Mr Goodison. He then finalised and amplified the earlier ruling he had made in a further written ruling dated 12 July 2013. It was no different in substance and it is not necessary to refer to it.
Mr Goodison took the position that he wanted costs from central funds in the event that the judge decided not to award costs, of his own motion, to be paid by the CPS. Under the law as it stood at the time, Mr Goodison would recover the same amount whether it was paid by the CPS or out of central funds. When the CPS began these proceedings for judicial review, that position remained the position of Mr Goodison. He therefore understandably did not appear in the argument before the court. An important consequence was that only the DPP was represented before us.
The jurisdiction of the judge to make the Order
Under our constitution, as Lord Judge made clear in R v A [2012] EWCA Crim 434, decisions made by the state to prosecute are decisions for prosecutors appointed by the state. At paragraph 84 he said:
"First, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions.
Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute."
It is also well established that when in the rarest of circumstances a challenge is made to the decision to prosecute, it should in general be made before the trial court. The person seeking relief by way of staying the prosecution must establish abuse of process, including misconduct or oppression as explained in Ex Parte Bennett [1994] 1 AC 42.
Challenges to a prosecutorial decision can, if for some reason there is no available way of challenge before the trial court, exceptionally be made before the Divisional Court on the grounds set out in R v DPP ex p C [1995] 1 Cr App R 136 at 140–141. It is a highly exceptional remedy. Circumstances will rarely justify it: see Sharma v Brown-Antoine [2007] 1 WLR 780; R v Inland Revenue Commissioners ex p Mead [1993] 1 All ER 772; R (Pepushi) v CPS [2004] Imm AR 549; R (Bermingham) v Director of the SFO [2007] 2 WLR 635. Since the institution of the CPS review system, they will be rarer still: see R (L) v DPP [2013] EWHC 1752 (Admin); R(F) v DPP [2013] EWHC 945 (Admin).
It therefore follows that if a challenge is to be made to the decision to prosecute made by the CPS or other state prosecutors, it must be in the ways we have described. What a judge has...
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