R (Gujra) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart,Lord Justice Richards |
| Judgment Date | 09 March 2011 |
| Neutral Citation | [2011] EWHC 472 (Admin) |
| Docket Number | Case No: CO/12125/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 March 2011 |
[2011] EWHC 472 (Admin)
Before : Lord Justice Richards
And
Mr Justice Edwards-Stuart
Case No: CO/12125/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Stephen Field (instructed by Wells Burcombe Solicitors) for the Claimant
Clare Montgomery QC and Rachel Barnes (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 25 January 2011
Lord Justice Richards :
This is an application for judicial review of a decision of the Crown Prosecution Service ("the CPS") dated 16 November 2010 to take over the conduct of private prosecutions brought by the claimant, Mr Gujra, in order to discontinue them. There are two main issues in the case: (1) whether the CPS's current policy concerning the circumstances in which it will take over the conduct of a private prosecution in order to discontinue it is lawful and, if so, (2) whether the decision taken in the application of that policy to the relevant facts was rational.
The private prosecutions were brought by the claimant against Tamoor and Imran Mirza for common assault contrary to s.39 of the Criminal Justice Act 1988 and against Wajeed Mirza for an offence contrary to s.4 of the Public Order Act 1986, in relation to alleged incidents on 17 May 2010 and 24 May 2010. The claimant alleged that on 17 May he was assaulted by Tamoor and Imran Mirza in front of two witnesses, Vijay Swaley and Oumar Khobzi, the motive for the attack being that he had made a statement in civil proceedings brought against the Mirzas. He alleged that he was then threatened and intimidated by Wajeed Mirza on 24 May while he was driving his vehicle in Southampton city centre.
Solicitors for the claimant wrote to the CPS on 8 September 2010 to confirm that they had initiated the private prosecutions. The witness Vijay Swaley alleged that on the following day, 9 September, he was intimidated by Tamoor, Imran and Wajeed Mirza while in the West Quay shopping centre in Southampton.
On 22 October 2010 the CPS conducted a full review of the evidence and notified the police that there was insufficient evidence to provide a realistic prospect of conviction against any of the accused. On 11 November 2010 the CPS notified the claimant's solicitors that it intended to take over and discontinue the private prosecutions on that ground. Formal notices of discontinuance were served by the CPS on 16 November 2010.
The CPS decision to take over and discontinue the private prosecutions was taken in the light of the detailed review of the case by Mr Simon Massey, a lawyer in the Complex Casework Unit of CPS Wessex, a review which was itself overseen by Mr Ian Harris, head of the Unit. The actual decision was taken by Mr Nick Hawkins, Chief Crown Prosecutor for CPS Hampshire and the Isle of Wight, following a further review by Miss Alison Levitt QC, Principal Legal Advisor of the CPS, who agreed with the conclusion that there was no realistic prospect of conviction of any of the accused and that the private prosecutions should therefore be taken over and discontinued.
The right of private prosecution and the role of the DPP
The right of private persons to institute criminal proceedings is of great antiquity and has been expressly preserved by successive statutes since the establishment of the office of Director of Public Prosecutions ("the Director") by the Prosecution of Offences Act 1879. As Lord Mance observed in Jones v Whalley [2006] UKHL 41, [2007] 1 AC 63, para 43, "[t]he right of private prosecution operates and has been explained at the highest level as a safeguard against wrongful refusal or failure by public prosecuting authorities to institute proceedings". Control over private prosecutions has long been available, however, through the power of the Attorney General to enter a nolle prosequi; and since the Prosecution of Offences Act 1908 the Director has had an express power under statute to take over the conduct of such proceedings, a power which has been held to include not only the carrying on but also the discontinuance of the proceedings (see e.g. Raymond v Attorney General & Others [1982] QB 839, 846H-847A).
The current statutory provisions are contained in the Prosecution of Offences Act 1985 ("the 1985 Act"). That Act provides for the establishment of the CPS, with the Director as its head. It provides in s.3 that the Director is to discharge his functions under the superintendence of the Attorney General and is to have the duty of taking over the conduct of various criminal proceedings, including most criminal proceedings instituted on behalf of a police force. The right of private prosecution and the power of the Director to take over the conduct of private prosecutions are set out in s.6:
"6.(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.
(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage."
Where the Director has the conduct of proceedings and gives notice to the magistrates' court during the preliminary stage of the proceedings that he does not want the proceedings to continue, "they shall be discontinued with effect from the giving of that notice …", subject to the right of the accused to cause them to be revived: see s.23(3) of the 1985 Act. Similar provision is made in s.23A in respect of proceedings sent for trial in the Crown Court.
By s.10 of the 1985 Act the Director is required to issue guidance in the form of a Code for Crown Prosecutors ("the Code"):
"10.(1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them –
(a) in determining, in any case -
(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued …."
Pursuant to s.9 and s.10(3) the Code and any alterations to it are required to be set out in reports to be made by the Director to the Attorney General and then laid before Parliament. The relationship between the guidance in the Code and the policy in relation to the taking over of private prosecutions is of central importance to the present case.
Under the Code, Crown Prosecutors are required whenever possible to apply "the Full Code Test", which has an evidential stage and a public interest stage. The relevant stage for present purposes is the evidential stage. I quote from the sixth edition of the Code (February 2010), but the substance of the guidance has been the same at all material times:
" The Evidential Stage
4.5 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
4.6 A realistic prospect of conviction is an objective test based solely upon the prosecutor's assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged …
4.7 When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears …."
There follows a list of issues that need to be considered, including a range of issues relevant to the question whether the evidence is reliable.
Until 2009, the Director's policy in relation to the taking over of private prosecutions was based on a different evidential test from that in the Code. The earliest available articulation of the previous policy is in a letter of 27 July 1998 quoted in the judgment of the Divisional Court in R v Director of Public Prosecutions, ex p. Duckenfield [2000]1 WLR 55, 63:
"The policy where proceedings have been commenced by a private prosecutor builds on that contained in the Code for Crown Prosecutors. The right to bring a private prosecution is preserved by section 6(1) … subject to the power under section 6(2). The C.P.S. will take over a private prosecution where there is a particular need for it do so on behalf of the public …. In the instant case where we have been asked by the defendants to take over the prosecution in order to discontinue it, we would do so if one (or more) of the following circumstances applies: there is clearly no case to answer. A private prosecution commenced in these circumstances would be unfounded, and would therefore be an abuse of the right to bring a prosecution; the public interest factors tending against prosecution clearly outweigh those factors tending in favour; the prosecution is clearly likely to damage the interests of justice. The C.P.S. would then regard itself as having to act in accordance with our policy. If...
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