The Queen (on the application of End Violence Against Women Coalition) v The Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 15 March 2021 |
| Neutral Citation | [2021] EWCA Civ 350 |
| Docket Number | Case No: C1/2020/0720 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 March 2021 |
[2021] EWCA Civ 350
IN THE COURT OF APPEAL (CIVIL DIVISION)
HEARING THE MATTER OF A JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Lord Justice Holroyde
and
THE RT HON Lady Justice Elisabeth Laing DBE
Case No: C1/2020/0720
Phillippa Kaufmann QC, Jennifer MacLeod and Emma Mockford (instructed by Centre for Women's Justice) for the Claimant
Tom Little QC and Clair Dobbin (instructed by The Government Legal Department) for the Respondent
Hearing dates: 26 and 27 January 2021
Approved Judgment
Introduction
This is the judgment of the court on an application for judicial review being heard at first instance in the Court of Appeal. The claimant is a campaigning organisation with deep concerns about the low and declining rate of prosecutions for rape and serious sexual offences when compared with the number of alleged offences reported to the police. There is a widespread and legitimate interest in the underlying question which has animated these proceedings, shared by successive Directors of Public Prosecutions, the wider legal community, the judiciary and many more. A Government review led by the Ministry of Justice is underway looking at this issue with wide-ranging participation.
The President of the Queen's Bench Division identified the fundamental complaint in these proceedings when giving the judgment of the Divisional Court refusing permission to bring judicial review proceedings, [2020] EWHC 929 (Admin):
“The fundamental complaint made by the claimant is that the defendant has changed the policy of the Crown Prosecution Service (“the CPS”) in relation to the prosecution of rape and other sexual offences since about late 2016. The claimant submits that there has been a change of policy from the merits-based approach to the bookmaker's approach, which is unlawful. In the alternative, the claimant contends that the defendant has taken steps which amount to a change in practice. Even if not in policy. The defendant denies that there has been any change of policy or practice.” (para 2)
The terms ‘merits-based approach’ (“MBA”) and “bookmaker's approach” are found in the judgment of Toulson LJ, with whom Forbes J agreed, in R (FB) v. DPP [2009] EWHC 106 (Admin); [2009] 1 WLR 2072 a judgment we will discuss in more detail. They contrast two different ways in which a prosecutor might determine whether a prosecution is more likely than not to succeed. In short, the first is an objective approach, the second a predictive approach based upon experience of juries. Importantly, the second would consider perceived prejudices of juries arising from so-called rape myths as relevant to whether to prosecute. It is no longer submitted that there has been a substantive change to the bookmaker's approach, but rather that the change in policy created a risk that prosecutors would understand that they should apply the bookmaker's approach.
The claimant sought permission to appeal the order of the Divisional Court. The application was adjourned to an oral hearing and came before the Court on 30 July 2020. When considering such an application the Court of Appeal has wide powers, including the power to grant permission to apply for judicial review (rather than permission to appeal); and, if it grants permission, it may retain the substantive claim for judicial review and determine that claim itself rather than remit the case to the High Court: see CPR 52.8(1), (5) and (6). The court granted permission to apply for judicial review and retained the claim in the Court of Appeal. In the result the suggested change of policy or practice is now challenged on five grounds:
a) it was irrational.
b) It led to a risk of systemic illegality because it created confusion in the mind of prosecutors about the test they should apply in making decisions whether or not to prosecute.
c) It was unlawful because the DPP should have consulted ‘stakeholders’ before making the decision, as, by reason of the DPP's previous practice of consultation, they had a legitimate expectation that they would be consulted.
d) The decision was made in breach of section 149 the Equality Act 2010 (‘the 2010 Act’).
e) The decision was a breach of the DPP's duty of transparency to publish her policies.
The parties agree that prosecutors must apply the Code for Crown Prosecutors in deciding whether to prosecute. It has a two-part test for deciding whether a criminal prosecution should be brought. That test applies to every offence. This case is about the first part of the test which deals with evidence, or “the evidential limb”, of that test rather than the second, which is concerned with the public interest. For convenience, we will refer to this as “the full Code test”. There is common ground on one important point. The parties agree that the MBA and the full Code test “are the same thing”.
The claimant's challenge is to “the abrupt change in policy or practice by the defendant, pursuant to which the CPS ceased to apply the ‘merits-based approach’ to prosecuting cases of sexual violence, in particular cases of rape and the introduction of a new policy or practice to that effect”. Mr Little QC accepted that when she was DPP, Dame Alison Saunders DCB decided in the summer of 2016 that prosecutors should receive further training about the test to be applied when an allegation of rape or a serious sexual offence had been made. These are known as “RASSO” cases. That training was given in the course of “RASSO roadshows”. She also decided that the term “merits-based approach” should be excised from training materials and guidance, and that a separate guidance document entitled “Code for Crown Prosecutors Test – Merits Based Approach” (“the MBA Guidance”) should be withdrawn.
That “new policy or practice” (if such it is) has now been superseded by further interim guidance, which is the subject of a current consultation. The claimant is content with the terms of this interim guidance, which, in part, at least, restore some of the text of the MBA Guidance although without reference to the MBA itself.
The parties to the application therefore agree that the DPP made a relevant decision (or decisions). We will use the word “decision”. They do not agree about the effect and implications of that decision, or about whether it was lawful. The central dispute is whether the DPP changed the policy or practice in the way which the claimant alleges. The premise of many of the grounds of challenge is that there was such a change; and of the defence to those grounds, that there was not. This dispute, which turns on a comparison of the meaning and legal effect of the old guidance and the new guidance respectively, lies at the heart of this claim. A central plank of the DPP's case is that the full Code test has always applied and that this has never changed.
The functions of the Director of Public Prosecutions The statutory provisions
Section 1 of the Prosecution of Offences Act 1985 (“the 1985 Act”) establishes the CPS. The DPP is the head of the CPS (section 1(1)(a)). The CPS also includes Chief Crown Prosecutors (“CCPs”) who are responsible to the DPP for supervising the operation of the CPS in each of their areas, and other staff appointed by the DPP (section 1(1)(b) and (c)). The DPP may designate Crown Prosecutors from members of the CPS (section 1(3)). The DPP must divide England and Wales into areas (section 1(4)). Every Crown Prosecutor has all the powers of the DPP “as to the institution and conduct of proceedings but shall exercise those powers under the supervision of” the DPP (section 1(6)).
The DPP is appointed by the Attorney General (section 2(1)). He or she must make annual reports to the Attorney General, which the Attorney General lays before Parliament (section 9).
Section 10 is headed “Guidelines for Crown Prosecutors”. Section 10(1) requires the DPP to issue a Code for Crown Prosecutors:
“giving guidance on general principles to be applied by [prosecutors]
(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; or
(ii) what charges should be preferred; and
(b) in considering, in any case, representations to be made by them to any magistrates' court about the mode of trial suitable for that case.”
Section 10(2) gives the DPP power to make alterations to the Code. The provisions of the Code are to be set out in the DPP's report to the Attorney General (section 10(3)), as is any alteration to the Code (section 10(3)).
The merits-based approach
The phrase “the merits-based approach” was used in the judgment of Toulson LJ in FB. FB was a challenge to a decision of the DPP not to prosecute a suspect in respect of an allegation of an assault contrary to section 18 of the Offences Against the Person Act 1861. The complainant alleged that he had been attacked by an assailant, whom he named. There was no doubt that the complainant's ear had been bitten off. The CPS decided not to prosecute the suspect because concerns about the complainant's mental state meant that there was no realistic prospect of conviction. The Divisional Court quashed the decision on the grounds that it was irrational.
Toulson LJ quoted para 5 of the 2004 edition of the Code, which was headed “The Full Code Test”. He...
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