Tolhurst v Director of Public Prosecutions

Judicial review of prosecutorial decisions within an ongoing criminal prosecution is exceptional. The court should intervene only where there is a compelling reason to do so, having regard to the disruption and potential injustice caused by interrupting the ordinary criminal process. A decision by the Crown Prosecution Service remains reviewable in an appropriate case, subject to the cautionary principles governing such intervention. A decision to continue a prosecution will not be unlawful merely because the claimant disputes the weight given to relevant factors, where the decision is reasonably open on the facts.

The claimant sought judicial review of the Crown Prosecution Service’s decision to continue prosecuting him under section 5 of the Sexual Offences Act 2003. He had pleaded guilty to sexual intercourse with a 12-year-old girl and later sought to change his plea and have the charge amended. The CPS reconsidered the prosecution decision under the Code for Crown Prosecutors, including the claimant’s previous police interview concerning sexual activity with another girl under 16.

The central issue was whether the CPS decision was an exceptional case warranting judicial review during an unfinished criminal prosecution.

1. Claim dismissed. The court emphasised that judicial review should very rarely be introduced into the criminal process. Applications may interrupt the ordinary trial, cause delay and create potential injustice. This was the vice addressed by section 29 of the Supreme Court Act, as explained in R v Director of Public Prosecutions ex p Kebiline [2002] 2 AC 326.
2. The court retained jurisdiction to intervene in an appropriate case. A decision made by the CPS is capable of being judicially reviewed, but only subject to the cautionary principles applicable to intervention in criminal proceedings.
3. The CPS had considered the relevant factors in the Code for Crown Prosecutors. The claimant could not identify a particular factor which was clearly required to be considered but had been omitted. The circumstances included the significant age difference, opportunistic and penetrative sexual activity, the distress caused to the victim’s family, and the claimant’s previous warning concerning sexual intercourse with girls under 16.
4. Viewed against those circumstances, the decision to continue the section 5 prosecution was reasonably capable of justification and was not perverse. The claim was therefore dismissed.

This was a first-instance judicial review claim. Leave to bring the proceedings had been granted in April 2008. The Divisional Court dismissed the claim.