The Queen (on the Application of Tim Hayes) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies,Lord Justice Holroyde |
| Judgment Date | 22 February 2018 |
| Neutral Citation | [2018] EWHC 327 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1665/2017 |
| Date | 22 February 2018 |
[2018] EWHC 327 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
&
Mrs Justice Nicola Davies
Case No: CO/1665/2017
and
Jamas Hodivala (instructed by Clarke Kiernan) for the Claimant
Louis Mably QC (instructed by Crown Prosecution Service) for the Defendant
Hearing dates: 16 th January 2017
Judgment Approved
The claimant Mr Tim Hayes commenced a private prosecution against his former wife, the interested party Mrs Carole Hayes, on charges of (1) doing an act tending and intended to pervert the course of justice and (2) using a false instrument, contrary to section 3 of the Forgery and Counterfeiting Act 1981. Pursuant to the powers of the Director of Public Prosecutions (“DPP”) under section 6(2) of the Prosecution of Offences Act 1985, the Crown Prosecution Service (“CPS”) took over the conduct of that prosecution and decided to offer no evidence against Mrs Hayes. Mr Hayes wished to exercise his right, under the CPS's Victims' Right to Review Guidance (“VRRG”) to request a review of that decision. He was told by the CPS that a review would only be carried out after no evidence had been offered against Mrs Hayes, and the prosecution had therefore come to an end. Mr Hayes contends that the stance adopted by the CPS shows an unlawful policy. He accordingly seeks judicial review of the decision by the CPS that it would not review its decision to offer no evidence until after the conclusion of the prosecution of Mrs Hayes.
I am grateful to Mr Hodivala on behalf of Mr Hayes, and to Mr Mably QC on behalf of the CPS, for their helpful written and oral submissions. Mrs Hayes has taken no active part in the proceedings.
The Facts:
The facts giving rise to the private prosecution can be stated very briefly. For many years, Mr and Mrs Hayes have been engaged in civil litigation. In the course of those protracted proceedings, Mr Hayes obtained a judgment in his favour against Mrs Hayes, and sought to enforce that judgment. On 24 th March 2016 the County Court at St Albans made an order (“the order”) requiring Mrs Hayes to attend the court on 11 th July 2016 for questioning about her means and any other information needed to enforce the judgment against her. The order, as issued by the court, was three pages in length. The first page included a penal notice: that is, a formal warning to Mrs Hayes that if she did not obey the order she might be sent to prison for contempt of court. The second page gave details of the categories of information which she would be required to provide to the court. The third page comprised a schedule of additional documents which she was required to disclose. Mr Hayes' case, supported by the evidence of a process server, was to the effect that a true copy of the order – slightly cropped at the margins by the process of scanning and photocopying, but clearly legible – was duly served upon Mrs Hayes. However, when Mrs Hayes appeared before the County Court on 11 th July 2016, she produced an incomplete copy of the order, comprising only the top part of the first page and omitting both the penal notice and the directions as to what information she must provide. Mrs Hayes informed the court that the document had been served upon her in that form, and submitted that Mr Hayes must have altered the order or in some other way interfered with it so that she had not received a true copy. She repeated those allegations in a witness statement dated 14 th July 2016, which she verified with a statement of truth, and she invited the court to find that Mr Hayes had acted in contempt of court.
Thus there was, and indeed remains, an issue between Mr and Mrs Hayes as to whether it was he or she who was responsible for the creation of the spurious document which Mrs Hayes produced to the court on 11 th July 2016. As I understand it, that issue caused some delay in the County Court, but was not investigated as a possible contempt of court in those proceedings.
The private prosecution and the CPS's decision to offer no evidence:
On 14 th October 2016 Mr Hayes issued summonses against Mrs Hayes, charging her with the offences referred to above. He acted upon the advice of experienced counsel Mr Hunt, who had been instructed to advise and to conduct the proceedings on Mr Hayes' behalf. On 16 th October 2016 Mrs Hayes made representations to the CPS, which as I understand it invited the CPS to take over the conduct of the prosecution and to consider whether it should be pursued. The criminal proceedings meanwhile continued to take their course, and on 10 th January 2017 Mrs Hayes made her first appearance before the Crown Court at Southwark. On that date she entered not guilty pleas to both the charges in the indictment, and the case was adjourned for trial on the 7 th August 2017.
On 13 th March 2017 Mr Streeter, a CPS manager, wrote to Mr Hunt. Mr Streeter indicated that he had decided to intervene in the prosecution as he had concluded that there was no realistic prospect of a conviction on either of the two charges against Mrs Hayes. He said that his decision had been taken following a review of the case in accordance with the Code for the Crown Prosecutors. Under that Code, a prosecutor considering whether to prosecute in a particular case must apply the “Full Code Test”, which involves two stages: the prosecutor must first consider whether there is sufficient evidence to provide a realistic prospect of conviction; and if so, must then consider whether a prosecution is required in the public interest.
Mr Streeter explained his reasons for coming to his conclusion that the evidence was not sufficient to pass the first stage of that test, and continued:
“We have written to the court and the Defendant informing them of our decision and we have asked the court to list the case for mention so that we can offer no evidence on the indictment before the court.
Any decision by the CPS does not imply any finding concerning guilt or criminal conduct; the CPS makes decisions only according to the test set out in the Code for Crown Prosecutors and it is applied in all decisions on whether or not to prosecute.
I appreciate that you and your client will be disappointed with the decision that has been reached but I hope this letter assists you in understanding what has happened in this case and how I came to my decision.
If you disagree with my decision you are entitled to seek a review of the decision. However, please note that once this matter is listed and no evidence offered, proceedings will be at an end and the outcome will not be altered once this occurs. If you wish to seek a review, please contact the CPS, within the next 7 days if possible, or within the next 3 months at the latest. Please contact us at [address details given].”
Mr Hunt responded immediately, informing Mr Streeter that he wished the decision to be reviewed, and setting out the grounds for that request. He was informed by Mr Streeter that the CPS would nonetheless proceed to offer no evidence against Mrs Hayes, and would not postpone that step until after the review process had been concluded. Later on 13 th March 2017, Mr Hunt sent a formal Pre-Action Protocol letter to the CPS indicating Mr Hayes' intention to commence judicial review proceedings.
On the following day, 14 th March 2017, Mr Streeter wrote to Mr Hunt reiterating that the CPS would not be asking the Crown Court to adjourn the listing of the case until after the outcome of the review. It should be noted that a hearing for that purpose was at that time listed for the following day. Mr Streeter said:
“Our position is that the CPS Legal Guidance on Termination of Proceedings is clear and states as follows:
If the prosecutor considers the proceedings should not continue, the case should be terminated at the earliest possible opportunity.
It is our view that there is no legal basis for allowing proceedings to continue against a defendant pending outcome of an appeal under the VRR Scheme.”
It appears that the Crown Court then removed the case from the list administratively, so that the planned hearing did not proceed on 15 th March 2017. On 17 th March Mr Hunt sent a further document to the CPS setting out representations in respect of a review of the CPS's decision, and enclosing supporting documents. He asked for this material – which included representations in respect of both stages of the Full Code Test — to be put before the independent prosecutor conducting the review. The CPS responded on 29 th March 2017 saying –
“At this stage, we are unable to progress your request as the Crown Court has not listed the case against Mrs Hayes and as a result we have not, as yet, brought proceedings to an end.
The Victims' Right of Review can only be progressed once proceedings are at an end and as a result we are not able to progress this at this stage.
Once the matter has been dealt with at court, the matter will be progressed under the VRR Scheme. We have contacted the Crown Court at Southwark again today to ask why this matter has not been listed.”
The hearing at which the CPS intended to offer no evidence against Mrs Hayes was subsequently listed for 5 th April 2017, before His Honour Judge McCreath. On 4 th April 2017, Mr Hayes issued his claim for judicial review. He also made an urgent application for an interim injunction prohibiting the CPS from offering no evidence in the criminal prosecution against Mrs Hayes. That urgent application was refused by the out of hours judge.
Also on 4 th April 2017, Mr Wicks, a CPS Specialist Prosecutor, sent an email to the Administrative Court Office in which he...
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Dean Francis v Director of Public Prosecutions
...brought before that right of review has been taken up, a court should not entertain it.” 30 In R (Hayes) v Crown Prosecution Service [2018] EWHC 327 (Admin), [2018] 1 WLR 4106, the claimant, whose private prosecution had been taken over by the CPS, applied for judicial review of the decis......