N (Father of J) v The Director of Public Prosecutions (R. Prosecution Service)

The CPS’s decision not to prosecute may be subject to judicial review in an appropriate case. Although courts are generally reluctant to interfere with prosecutorial discretion, the threshold must not be set so high that a successful challenge is impossible. Relevant and irrelevant considerations, including the relationship between criminal proceedings and the Family Courts and the interests of children, may require careful examination. Where the issues concern both jurisdictions, it may be appropriate for the application to be considered by a judge experienced in both.

The claimant, the father of J, brought a renewed application for permission to seek judicial review of the CPS decision not to prosecute J’s mother for removing him from the jurisdiction, allegedly contrary to section 1 of the Child Abduction Act 1984. Permission and interim relief had previously been refused on the papers by Wilkie J. The renewed application raised questions about the reviewability of prosecutorial discretion, the factors considered by the CPS, and the relationship between criminal proceedings and the Family Courts. The court had to determine how the application should proceed.

1. The court recognised the general reluctance to interfere with prosecutorial discretion, reflected in R v Commissioner of Police for the Metropolis Ex Parte Blackburn, R v DPP Ex Parte Blackburn, R v DPP Ex Parte C, R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 and R v DPP Ex Parte Manning [2001] QB 330.
2. The observations of Lord Bingham in Manning showed that the threshold for intervention must not be set so high that a successful application could never be made.
3. The claimant’s criticisms of the CPS decision at least raised questions whether relevant factors had been considered and irrelevant factors taken into account. The relationship between the criminal jurisdiction and the Family Courts was material, particularly because child-related considerations might support or oppose prosecution.
4. It was appropriate for the renewed permission application, and any substantive application if permission were granted, to be listed on a rolled-up basis before Holman J, who had experience of both jurisdictions. Reunite International was permitted to intervene by written representations.

1. High Court (Administrative Court): Wilkie J refused permission and interim relief on the papers on 17 December 2010. The renewed application was then directed to be heard on a rolled-up basis before Holman J in July 2011.