Gray, R (on the application of) v Crown Prosecution Service

A decision by the police to end an investigation and take no further action is amenable to judicial review only on established public-law grounds. In deciding whether to investigate or prosecute, the police may consider the public interest, proportionality and evidential matters, including discrepancies in witness accounts. Where the Crown Prosecution Service decides not to prosecute, the court will not interfere unless there are truly compelling reasons. The court does not determine disputed facts in a permission application. A claim lacking any arguable basis will be refused and may be certified as totally without merit.

The claimant had faced criminal proceedings arising from allegations of racially abusive conduct under section 31(1)(a) and (b) of the Crime and Disorder Act 1998. The proceedings ended without a conviction.

He subsequently complained that witnesses and police officers had committed offences, including perjury and perverting the course of justice. The police investigated and decided that no further action was proportionate or in the public interest. The Crown Prosecution Service independently reviewed the matter and likewise declined to prosecute.

Blair J refused permission on the papers. The claimant renewed the application before the Divisional Court, challenging the police and CPS decisions.

1. Renewed application refused. The claimant had not shown an arguable basis for judicial review of either the police decision or the CPS decision. The application was misconceived and totally without merit.

2. The court’s function was limited to deciding whether arguable grounds for judicial review existed. It was neither required nor enabled, on this application, to make findings about what had occurred during the underlying incidents or to resolve disputed evidence.

3. The police had considered the alleged discrepancies and other available evidence. Their decision letter showed that they applied the relevant criteria, including whether further investigation or prosecution was proportionate and in the public interest. The court found no basis for concluding that the investigation had been conducted unlawfully or that the police had applied an incorrect test.

4. The decision whether to prosecute lay primarily with the CPS and was to be taken without interference from the court unless there were truly compelling reasons. The absence of any police basis for prosecution, together with the CPS review, disclosed no arguable public-law error and no compelling reason for intervention.

5. Although the police challenge appeared to have been brought outside the three-month period, the court would not have rejected it on time alone because a serious issue should not be excluded solely for that reason. That point did not affect the result, since the claim had no arguable merit.

Lord Justice Maurice Kay agreed with Wyn Williams J’s reasoning and ordered that the application be refused as totally without merit. A transcript was made available to the claimant at public expense.

• High Court (Administrative Court): Blair J refused permission on the papers. The Divisional Court, on renewal, refused permission and certified the application as totally without merit: [2009] EWHC 239 (Admin).