R (Gujra) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Neuberger,Lord Kerr,Lord Mance,Lady Hale |
| Judgment Date | 14 November 2012 |
| Neutral Citation | [2012] UKSC 52 |
| Date | 14 November 2012 |
| Court | Supreme Court |
[2012] UKSC 52
Lord Neuberger, President
Lady Hale
Lord Mance
Lord Kerr
Lord Wilson
Appellant
Edward Fitzgerald QC
Stephen Field
(Instructed by Wells Burcombe LLP)
Respondent
Clare Montgomery QC
Rachel Barnes
(Instructed by CPS Appeals Unit)
Heard on 4 October 2012
The Director of Public Prosecutions ("the Director") has power to take over a private prosecution and thereupon to discontinue it. In determining whether to do so, it is his policy to apply certain criteria. This appeal concerns his first criterion, which relates to the strength of the evidence in support of the prosecution. Prior to 2009 the Director asked himself whether the evidence clearly failed to disclose a case sufficient for the defendant to be called upon to answer it. If his conclusion was that it clearly failed to do so, he took over the prosecution and discontinued it; otherwise, and subject to the application of further criteria, he declined to take it over. But in 2009 he changed his policy in relation to the evidential criterion. It became his policy to take over a private prosecution and to discontinue it unless the evidence was such as to render the prosecution more likely to result in a conviction than not to do so. Although one could refer to it as the "51% chance test" or the "greater than even chance test", I will refer to the current criterion as the "reasonable prospect test".
The central issue in this appeal surrounds the lawfulness of the Director's current policy.
Mr Gujra, the appellant, instituted two private prosecutions. The Director, acting by the Crown Prosecution Service ("the CPS"), concluded that the evidence in support of them was not such as to satisfy the reasonable prospect test. So, applying his current policy, he took them over and thereupon discontinued them. It is agreed that, had he applied his previous policy, he would not have done so. The appellant applied for judicial review of his decision to do so and, specifically, for an order that it be quashed. On 9 March 2011 the Divisional Court of the Queen's Bench Division (Richards LJ and Edwards-Stuart J) dismissed the application: [2011] EWHC 472 (Admin), [2012] 1 WLR 254. In this appeal the appellant's central contention is that the Director's current policy is unlawful because it improperly restricts the statutory right of a citizen to bring a private prosecution.
The first of the appellant's private prosecutions was instituted by his laying an information before the Southampton Magistrates' Court against two brothers, Mr Imran Mirza and Mr Tamoor Mirza, which led, on 18 August 2010, to the court's issue of a summons against them. By his information, the appellant alleged that on 17 May 2010 the brothers had jointly perpetrated a common assault upon him. His case was and is that he was sitting outside a café with two friends; that the brothers drove up and got out of the car; that one of them punched him, as a result of which he fell to the ground; and that both of them kicked him. There is no doubt that the police were called; that he complained to them that the brothers had assaulted him; and that the police noticed that he had sustained injuries, albeit that they considered them to be very minor.
The second of the appellant's private prosecutions was instituted in the same way, before the same court and on the same day, against a third brother, Mr Wajeed Mirza. By his information, the appellant alleged that on 24 May 2010 the third brother had, with intent, used threatening words towards him, thereby causing him alarm, contrary to section 4A of the Public Order Act 1986. His case was and is that the brother approached him while he was sitting in his car; called him "a dirty grass" and, in reference to his caste, "a dirty patra"; and threatened to kill him.
The appellant promptly consulted solicitors about a possible private prosecution referable to both these alleged incidents; but the police also launched an investigation into the alleged assault. Late in May 2010 the appellant made statements both to his solicitors and to the police. Although to the officer at the scene they had denied having witnessed the alleged assault, his two friends also made statements to his solicitors and to the police, in which they claimed to have witnessed it and, broadly, confirmed the accuracy of his account of it. The appellant referred to the later incident in his statement to his solicitors but not in his statement to the police, who learnt of it only when they received a copy of the former statement. He did not suggest that anyone had witnessed the later incident. In his statements the appellant explained that he had sworn an affidavit in support of a claim in civil proceedings brought by a third party against Mr Imran Mirza and Mr Wajeed Mirza; and he suggested that the incidents had been by way of revenge.
Late in July 2010 the police arrested and interviewed the brothers who had allegedly assaulted the appellant. They made no comment and were bailed. Then the police sent the file to the CPS for a decision whether to institute prosecutions.
When, on 18 August 2010, the appellant instituted the prosecutions, he and his solicitors were aware that the CPS was still in the course of considering whether itself to institute them. When the CPS learnt of their institution, the focus of its review became whether to take over their conduct in order either to continue or to discontinue them. The review was entrusted to Mr Massey, a senior officer in the Complex Casework Unit of the Wessex CPS.
On 22 October 2010 Mr Massey signed a 15-page review of the appellant's allegations, together with a further allegation made against all three defendants by one of the appellant's two witnesses. In his review Mr Massey set out in detail his reasons for concluding that the evidence in support of each of the two private prosecutions failed to satisfy the reasonable prospect test. In accordance with the current policy of the CPS when taking over a private prosecution, Mr Massey's review was submitted to Miss Levitt QC, its Principal Legal Adviser, who, on 9 November 2010, endorsed his conclusion. The Chief Crown Prosecutor for Hampshire thereupon directed that conduct of the prosecutions should be taken over in order that they should be discontinued. On 16 November 2010 the CPS duly notified the magistrates' court pursuant to section 23(3) of the Prosecution of Offences Act 1985 ("the 1985 Act") that the Director did not want the prosecutions to continue; and they were thereby discontinued. It also notified the appellant and the three defendants, by their respective solicitors, of the discontinuance.
The manner in which, over the centuries, public authorities have come to assume responsibility for the vast majority of criminal prosecutions in England and Wales has been characteristically haphazard.
Until late in the 19th century prosecutions were brought almost entirely by the victims of the alleged crimes or, if they were dead, by their kinsmen. Local parish constables, not organised on any national or even regional basis and not even paid, sometimes helped the victims to prosecute. By about 1730, if they could afford it, prosecutors and defendants sometimes engaged lawyers to represent them. At around the same time associations of people with a common, sectional, interest in prosecuting particular felonies sprang up in order to conduct prosecutions on behalf of their members. But, as late as 1816, Chitty, in A Practical Treatise on The Criminal Law 1st ed (1816), vol 1, p1 wrote:
"Criminal Prosecutions are carried on in the name of the King, and have for their principal object the security and happiness of the people in general, and not mere private redress. But as offences, for the most part, more immediately affect a particular individual, it is not usual for any other person to interfere."
The Attorney-General intervened to conduct only a few prosecutions in very serious or notorious cases. He also had a long-standing prerogative power to halt any prosecution in a court of record by entering a nolle prosequi, of which, in modern times, he makes rare use, indeed usually only when he considers that the defendant is unfit to plead.
In 1829 came the first step towards putting the police on a statutory, albeit only regional, footing. It was the Metropolitan Police Act of that year ( 10 Geo 4, c 44) and it established the London Metropolitan Police. It was followed in 1856 by the County and Borough Police Act (19 & 20 Vict, c 69), which required every county and borough to have its own constabulary. This improvement in the organisation of the police seems to have been the spur to their assumption of responsibility for most prosecutions. Technically, however, the prosecuting police officer was just another private prosecutor.
From about 1830 onwards there were calls for the introduction of a system of public prosecutions in England and Wales such as had long been established in Scotland and elsewhere. But the Prosecution of Offences Act 1879 (42 & 43 Vict c 22) went only a small way towards it. It established the role of the Director, under the direction of the Attorney General, but in effect it provided for him to institute prosecutions only in cases of importance or difficulty. Part of section 7 provided:
"Nothing in this Act shall interfere with the right of any person to institute, undertake, or carry on any criminal proceeding."
But the Prosecution of Offences Act 1908 (8 Edw 7, c 3) repealed that part of section 7 and, by section 2(3), instead provided:
"Nothing in the Prosecution of Offences Acts 1879 and 1884, or in this Act, shall...
To continue reading
Request your trial
-
The Police Federation v The Commissioner of The Independent Commission of Investigations
...prosecutions of police, counsel agreed that, pursuant to Steadroy Benjamin; R (On the Application of Gujra) v Crown Prosecution Service [2012] UKSC 52; R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 52; [2014] 3 All ER 90; R v Rollins; Broadmoor; and R (Hunt) v Criminal Cases Review Commi......
-
Kelly and Another v Ryan
...4.4 The somewhat different position under English law was recently analysed at length by the United Kingdom Supreme Court in R (Gujra) v. Crown Prosecution Service [2013] 1 A.C. 484. In the UK, the D.P.P. has an express statutory right under s.6 of the Prosecution of Offences Act 1985 to t......
-
Crawford et Al v Financial Institutions Services Ltd (No. 2)
... ... of the Court in a sum not exceeding £500 sterling for the due prosecution of the appeal and the payment of all such costs as may become payable by ... ...
-
Morshead Mansions Ltd v Mr DI Marco
...In addition a tenant may himself bring a private prosecution under section 6 of the Prosecution for Offences Act 1985: see R (Gujra) v Crown Prosecution Service [2012] UKSC 52; [2013] 1 AC 484 for a historical review. In general a summary offence may not be tried unless the information is ......
-
Differing Responses to Constitutional and Human Rights Issues
...was responsible for initiating; namely, was it more likely than not that the 16 R (Gujra) v Crown Prosecution Service [2011] UKSC 52, [2012] 3 WLR 1227. prosecution would result in a conviction. 17 This was popularly known as “the better than evens” or “the reasonable prospect” test. In fac......
-
PROSECUTORIAL DISCRETION AND THE LEGAL LIMITS IN SINGAPORE
...6 (that the policy set out in the UK Code for Crown Prosecutors was lawful); R (on the application of Gujra) v Crown Prosecution Service[2012] 3 WLR 1227 (that the test for the continuance of a private prosecution contained in the Crown Prosecution Service's Code for Crown Prosecutors (“CPS......
-
Extending the private prosecution provisions of the Criminal Procedure Act 51 of 1977 to cover Private Prosecution in the public interest
...2 December 2020. 26 Secti on 11(1) of the Act. 27 See , for instance, R (on the application of Gujra) v Crown Prosecution Service [2012] UKSC 52; Mujuzi (n 19) 151–153. 28 See s 11 of the Act. 29 See s 12(2) of the Act. Msaule 7 consequence of the commission of the said offence.30 In Mullin......
-
Private Prosecution of Crimes under International Law as a means to Combat Impunity in some African Countries: The Likely Challenges
...Denying Leave to Appeal, ICC-01/04-168 (13 July 2006) para 33.24 UKSC Gujra, R (on the application of) v Crown Prosecution Service [2013] 1 AC 484, [2012] 52, [2012] WLR(D) 330, [2013] 1 Cr App R 12, [2012] 3 WLR 1227, [2013] 1 All ER 612.25 Ibid at para 116.26 eKLR Attorney General & 2 Oth......