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

The statutory right to institute and conduct a private prosecution is subject to the Director of Public Prosecutions’ power under section 6(2) of the Prosecution of Offences Act 1985 to take over and discontinue it. The Director may lawfully apply the same evidential threshold used for public prosecutions. He may therefore intervene where the evidence does not provide a realistic prospect of conviction, meaning that conviction is not more likely than acquittal.

The policy does not frustrate the statutory right because private prosecutions may still be instituted and may continue where the evidential and public-interest requirements are met. The Director must apply the policy flexibly, consider any materially different circumstances and make an expert, impartial assessment of the evidence. His decision remains amenable to judicial review.

R (on the application of Gujra) v Crown Prosecution Service concerned two private prosecutions arising from an alleged assault and a subsequent threat. After reviewing the evidence, the Crown Prosecution Service concluded that neither prosecution had a realistic prospect of conviction. The Director took them over and discontinued them under section 6(2) of the Prosecution of Offences Act 1985.

The appellant sought judicial review, contending that the Director’s 2009 policy unlawfully restricted the statutory right of private prosecution. The Divisional Court dismissed the claim in [2011] EWHC 472 (Admin), [2012] 1 WLR 254. The central issue before the Supreme Court was whether applying the ordinary Full Code evidential test to private prosecutions frustrated the policy and objects of section 6.

1. The appeal was dismissed by a majority of three to two. Lord Wilson, Lord Neuberger and Lord Kerr held that the Director’s 2009 policy was lawful. Lord Mance and Lady Hale dissented.

2. Section 6(1) of the Prosecution of Offences Act 1985 preserves the right to institute and conduct a private prosecution, but does so expressly subject to section 6(2). The latter gives the Director a broadly expressed discretion to take over a private prosecution, including for the purpose of discontinuing it. Applying Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, that discretion must promote, and must not frustrate, the policy and objects of the Act.

3. The reasonable-prospect policy did not emasculate or frustrate the statutory right. Individuals remained free to institute private prosecutions. A prosecution could continue privately where it had a better-than-even prospect of success, was not contrary to the public interest and presented no particular need for CPS conduct. Consistency between public and private prosecution standards accorded with the aims of the 1985 Act. The policy was also supported by fairness to defendants, the proper use of court and public resources, and confidence in criminal justice.

4. The majority disapproved the contrary observations in R v Director of Public Prosecutions, Ex p Duckenfield [2000] 1 WLR 55. Those observations had addressed an unargued and conceded issue. The Director must nevertheless avoid rigid application of the policy, consistently with British Oxygen Co Ltd v Board of Trade [1971] AC 610. Individual decisions remain reviewable for unlawful inflexibility or irrationality.

5. The Director was not required to ask whether some other reasonable prosecutor might consider conviction more likely than acquittal. The CPS was entitled to make its own expert and impartial assessment. The challenge to the rationality of the particular evidential assessment was also rejected.

6. Lord Mance and Lady Hale would have allowed the appeal. They regarded private prosecution as a constitutional form of access to justice which could be curtailed only by clear statutory language. In their view, the Director could ordinarily discontinue for evidential weakness only where the prosecution could not reasonably succeed. Alternatively, a prosecution should not be stopped where a reasonable prosecutor could conclude that a reasonable court was likely to convict.

• United Kingdom Supreme Court: By a majority of three to two, dismissed the appeal and affirmed the Divisional Court’s dismissal of the judicial review claim: [2012] UKSC 52.
• Divisional Court of the Queen’s Bench Division: Richards LJ and Edwards-Stuart J dismissed the application for judicial review: [2011] EWHC 472 (Admin), [2012] 1 WLR 254.