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

A prosecutor may change the prosecution decision, even after taking a wrong view of the law. But continuation of proceedings may be an abuse of process where there was an unequivocal agreement that the prosecution would not proceed, the defendant relied on that agreement, and no good reason justifies the change.

In assessing the fairness of continuing a prosecution, the court should consider whether any asserted consultation failure actually produced a substantive reason for changing position. A failure to consult, followed by no consultation and no evidence of its consequences, does not justify reopening an agreement. The remedy may require the prosecution to offer no evidence.

The claimant sought judicial review of the Crown Prosecution Service decision to continue prosecuting him for harassment contrary to section 2 of the Protection from Harassment Act 1997. He also sought a mandatory order requiring the CPS to adhere to an arrangement discussed before the magistrates’ court.

On 24 February 2010, the prosecution and defence agreed in court that the CPS would offer no evidence and that, following acquittal, the claimant would accept a restraining order. The matter was adjourned briefly so that the claimant, who had not been present, could attend. The CPS later withdrew from that course, relying on an incorrect jurisdictional argument and the absence of consultation with the complainant and support agencies.

The central issue was whether continuing the prosecution, despite the agreement, would be unfair and constitute an abuse of process.

1. The claim succeeded. It was an abuse of process to continue the prosecution other than in accordance with the agreement that the CPS would offer no evidence, provided the claimant remained willing to accept a restraining order.
2. It was not, by itself, an abuse of process for a prosecutor to change position, including because of an initially wrong view of the law. In a domestic violence case, consultation with the complainant and supporting agencies could be a proper consideration.
3. Where such reasons are relied on, the claimant must show a strong case that there was an unequivocal promise that the prosecution would not proceed and that he suffered prejudice. On the facts, there had been an agreement between the prosecution and defence lawyers, expressed to the court, that no evidence would be offered and that a restraining order would follow acquittal.
4. The short adjournment was intended to enable the claimant to attend, not to allow the CPS to reconsider its position. No reservation had been entered. The claimant’s absence was consistent with ordinary practice in magistrates’ court proceedings and had deprived him of the agreed disposal.
5. The jurisdictional objection was plainly wrong. The failure to consult did not justify continuing the prosecution because no evidence showed that consultation had taken place after the agreement or that its consequences had provided a substantive reason for changing position. The asserted need for consultation could not justify the change when the consultation had not been undertaken.
6. The court declined to remit the matter for a fresh decision after consultation. The CPS had ample opportunity to consult, and the material before the court showed no realistic basis on which consultation would alter its understanding of the complainant’s willingness to give evidence.
7. The CPS was therefore required to offer no evidence. If the claimant withdrew his willingness to accept a restraining order, the prosecution could proceed. The question of costs out of central funds was adjourned for consideration on paper by a divisional court, with the claimant’s costs subject to detailed assessment.

First-instance judicial review proceedings. The judgment does not state an appellate history.