B, R (on the application of) v Director of Public Prosecutions & Anor

A prosecutor applying the evidential stage of the Code for Crown Prosecutors must assess the substantive merits of the evidence, including the likely defence case. The prosecutor must not treat a witness as inherently unreliable merely because the witness has a mental illness. A general equality duty does not alter the substantive evidential test, although it may require reasonable steps to assist a disabled witness to give evidence. In exceptional cases, terminating a prosecution may breach Article 3 where the criminal justice process fails to provide effective protection against serious violence and increases the victim’s vulnerability.

The claimant sought judicial review of the CPS decision to offer no evidence against a defendant charged with biting off part of the claimant’s ear and intimidating him. The decision was taken shortly before trial after a psychiatric report stated that the claimant’s mental disorder might affect his perception and recollection. The claimant argued that the decision was irrational, breached the duty under section 49A(1)(c) of the Disability Discrimination Act 1995, and violated Article 3 of the Human Rights Convention.

1. Domestic public law and the Code. The claim succeeded. The evidential stage of the Code for Crown Prosecutors requires an objective assessment of whether there is a realistic prospect of conviction, taking account of the possible defence case and the reliability of the evidence. The prosecutor should adopt a merits-based approach, asking whether the evidence makes conviction more likely than not, rather than relying on statistical predictions about jury verdicts.
2. The prosecutor’s reasoning was irrational. The psychiatric report stated only that the claimant’s illness might affect perception and recollection. It did not establish that he was incapable of giving reliable evidence. The prosecutor failed to consider whether the claimant’s identification of the assailant was likely to have resulted from hallucination, and terminated the prosecution before further questions could be put to the psychiatrist.
3. Disability Discrimination Act 1995. Section 49A(1)(c) may be relevant at the investigative stage and when considering measures to assist a disabled witness, including special measures under Part II of the Youth Justice and Criminal Evidence Act 1999. It does not alter the substantive assessment of the merits of evidence. If the evidential test is properly applied and not met, the general duty adds nothing to the ordinary public law position.
4. Article 3. Article 3 entails a positive obligation to provide protection through the criminal justice system against serious violence. The abandonment of this prosecution on the eve of trial, because the claimant was treated as incapable of being a credible witness owing to his mental illness, humiliated him and increased his sense of being beyond the protection of the law. That amounted to a violation of Article 3.
5. The decision was irreversible because the CPS immediately offered no evidence and the defendant was acquitted. The claimant was awarded £8,000 for being deprived of the opportunity for the proceedings to run their proper course and for the resulting damage to his self-respect.