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

The CPS may lawfully take over and discontinue a private prosecution where its review concludes that the evidential stage of the Full Code Test is not met. Applying the same realistic prospect of conviction test to private prosecutions does not nullify the statutory right to bring them. The CPS decision-maker may form an independent judgment on the evidence; the court need not ask only whether the private prosecutor’s view was within the range of rational responses. Judicial review of an independent prosecutor’s assessment of witness reliability and conviction prospects is confined to highly exceptional cases.

The claimant brought private prosecutions against three individuals for common assault and a public order offence. After reviewing the evidence, the CPS took over the proceedings under section 6(2) of the Prosecution of Offences Act 1985 and discontinued them because there was no realistic prospect of conviction.

The claimant challenged both the lawfulness of the CPS policy, which applied the evidential stage of the Full Code Test to private prosecutions, and the rationality of its application to the evidence. The central issues were whether the policy unlawfully restricted the statutory right of private prosecution and whether the CPS’s assessment was irrational.

1. The claim for judicial review was dismissed. The CPS’s policy and its decision to take over and discontinue the prosecutions were lawful.

2. Section 6(1) of the Prosecution of Offences Act 1985 preserves the right to institute private prosecutions, while section 6(2) gives the Director a broad power to take over proceedings at any stage. Section 10(1)(a) requires the Code for Crown Prosecutors to guide decisions on whether proceedings under the CPS’s conduct should be instituted or discontinued.

3. It was lawful to use the Code’s evidential test—whether an objective tribunal is more likely than not to convict—when deciding whether to take over and discontinue a private prosecution. The test does not render the statutory right nugatory, since private prosecutions may continue where the evidential and public interest considerations do not justify intervention.

4. The relevant CPS decision-maker was entitled to form his own judgment on the prospect of conviction. It was unnecessary to ask whether the private prosecutor’s assessment was merely within the range of rational views.

5. The relevant observation in R v Director of Public Prosecutions, ex p. Duckenfield that the same realistic prospect of conviction test could not be applied across the board was obiter. It was not necessary to decide that case, and the court was neither required nor willing to follow it in light of section 10(1)(a) and the considerations underlying the new policy.

6. The CPS’s evidential assessment was rational. Its review addressed the inconsistencies, credibility concerns, limited corroboration and background dispute. The court should be very slow to interfere with an expert prosecutor’s assessment of evidence and conviction prospects.

First-instance judicial review proceedings in the Administrative Court. The application was dismissed.