X v Y

A prosecutor deciding whether to continue a prosecution must assess any significant risk to the defendant or others under European Convention of Human Rights and Fundamental Freedoms Articles 2 and 3. The prosecution may continue if the prosecutor is satisfied that adequate protective measures can meet the risk. That assessment is continuing and must be kept under review.

Knowledge of relevant material is insufficient. The decision-maker must evaluate material factors and consciously take them into account. A decision reached without evaluating relevant matters is unlawful and may be quashed for reconsideration.

The claimant was facing trial for serious offences and was also a registered informant. The trial judge ordered disclosure of some information concerning that status to co-defendants. The defendant decided to continue the prosecution after considering the associated risks and witness-protection measures.

The claimant sought judicial review, arguing that the risk assessment omitted two relevant matters. The defendant accepted that the matters had not been consciously taken into account, although the decision-maker knew of them. The central issue was whether that omission rendered the decision unlawful.

1. Outcome. The court quashed the decision to continue the criminal proceedings. The decision had to be retaken with proper regard to the omitted matters.
2. Applicable legal framework. The court adopted the reasoning in D v Central Criminal Court [2004] 1 Cr App R 41. Articles 2 and 3 imposed relevant positive and negative obligations. The negative obligation did not automatically require discontinuance of a prosecution because of a risk to life or serious injury. The prosecutor had to consider whether the risk could be adequately met by protective measures.
3. Prosecutorial assessment. The prosecutor had to recognise the significant or increased risk created by continuing the trial, consider what measures could minimise it, and remain under a continuing duty to review the prosecution if circumstances changed. Once satisfied that adequate protection could be provided, the prosecutor’s obligation was met, although implementation of the measures was the responsibility of the relevant authorities.
4. Material factors. A decision-maker’s awareness of relevant material did not suffice. The decision-maker had to evaluate the material and take it into account in reaching the decision. Here, the two matters concerned the area of potential high risk and had not formed part of the risk assessment. They therefore had not been properly evaluated.
5. A fresh risk assessment prepared after the decision could not pre-empt the court’s conclusion or determine the decision-maker’s reconsideration. It had to be considered by the decision-maker for what it was worth.

This was a renewed application for permission to apply for judicial review. Permission was granted and the substantive application was heard by the Divisional Court.