L v Director of Public Prosecutions & Ors

A decision by the Crown Prosecution Service not to prosecute is reviewable only where the prosecutor adopted an unlawful policy, failed to follow the applicable policy, or reached a perverse decision which no reasonable prosecutor could have reached. Prosecutors have a substantial margin of discretion, and successful challenges will be exceptionally rare.

A claimant should ordinarily use the CPS victim right of review procedure before seeking judicial review. A careful and thorough internal review makes a subsequent challenge still harder. Where a review occurs after proceedings begin, the claimant must place the reviewed decision before the court through amended grounds and obtain appropriate directions.

Two claimants renewed applications for judicial review of CPS decisions not to prosecute. L, the grandparent of a young child who had died from inflicted injuries, challenged the decision not to prosecute the child’s mother. A detailed senior review concluded that some charges lacked evidential support and that prosecuting other offences would no longer be in the public interest.

Kevin Pratt challenged the decision not to prosecute a shopkeeper as a secondary party to a hammer assault or for perverting the course of justice. A Borough Crown Prosecutor reconsidered the evidence, including CCTV footage, and maintained the original decision.

The court considered whether either reviewed decision fell within the narrow grounds permitting judicial intervention. It also gave authoritative procedural guidance concerning the CPS victim right of review procedure.

1. Both renewed applications were dismissed. Judicial review of a CPS decision not to prosecute is confined to three narrow grounds: adoption of an unlawful policy, failure to act in accordance with the prosecutor’s own policy, or perversity in the sense that no reasonable prosecutor could have reached the decision. This strict approach respects the constitutional responsibility and independence of prosecuting authorities: R v DPP ex parte C 1995 1 Cr App R 136 applied.

2. Successful challenges will be exceptionally rare. Decisions whether to prosecute, particularly assessments of the public interest, involve a significant prosecutorial margin of discretion. Reasonable prosecutors may differ without either decision becoming unlawful.

3. A claimant should not ordinarily commence judicial review until the CPS has had an opportunity to conduct a further review under its victim right of review procedure. A court should normally decline to entertain a premature challenge. Where the CPS has completed a careful and thorough review, the prospect of establishing one of the three recognised grounds becomes still smaller.

4. If a CPS review occurs after judicial review proceedings begin and the claimant remains dissatisfied, the parties should seek directions. The claimant should amend the application to challenge the reviewed decision, serve new grounds identifying which recognised ground of review is engaged, and allow the CPS to respond before permission is determined.

5. In L’s case, the senior review was exceptionally detailed and careful. It reasonably concluded that murder, assault and the offence under section 5 lacked evidential support. Although evidence could support child cruelty and perverting the course of justice, prosecution was no longer in the public interest after the mother had given evidence at the homicide trial on the understanding that her caution represented the extent of the proceedings against her. The reviewed decision complied with CPS policy and was not perverse.

6. In Pratt’s case, the CCTV disclosed no evidence that the shopkeeper supplied the hammer, encouraged the assault or otherwise participated in it. Nor was there evidence approaching the threshold for perverting the course of justice. The reviewed decision was proper and proportionate, and the allegation of perversity was totally without merit.

• High Court (Administrative Court): The court dismissed both renewed applications for judicial review and certified its procedural guidance as authoritative. L’s claim was directed to be amended to encompass the CPS review decision.
• Single judge: In Pratt’s proceedings, the matter had been adjourned to permit the CPS to reconsider the evidence. L’s proceedings had also been adjourned to permit the claimant to obtain legal representation.