Hamberger, R (On the Application Of) v Crown Prosecution Service

Judicial review of a prosecutor’s decision to continue an indictment is ordinarily inappropriate while Crown Court proceedings are in progress. The Administrative Court should intervene only in exceptional circumstances, having regard to the safeguards available within the trial process and on criminal appeal. Issues concerning a defendant’s health, participation, and ability to give evidence should generally be addressed by the trial judge when they arise. Possible safeguards include video-link participation, hearsay evidence, directions concerning failure to testify, and, ultimately, discharge of the jury. A judicial review claim is premature where those protections have not yet been exhausted.

The claimant faced Crown Court proceedings for conspiracy to supply cannabis resin and firearms offences. He relied on medical evidence concerning angina, anxiety, depression, and his ability to participate in the proceedings. The Crown Prosecution Service decided to continue the prosecution after considering his human-rights submissions.

Permission for judicial review was refused on the papers by Foskett J. The claimant renewed the application, arguing that the prosecution should cease because trial participation might contravene Articles 2 and 3 of the European Convention on Human Rights, and that proposed video-link arrangements lacked statutory authority. The central issue was whether the challenge was sufficiently arguable and sufficiently exceptional to justify Administrative Court intervention.

1. The renewed application was refused. The claimant’s challenge was not sufficiently arguable. The fact that the prosecution decision was made by the Crown Prosecution Service did not justify judicial review while a trial on indictment was proceeding in the Crown Court.
2. Following R v DPP, ex parte Kebilene and R (on the application of D) v the Central Criminal Court, the Administrative Court should entertain such a challenge only in exceptional circumstances. The policy against interrupting criminal trials, together with the protections available within the trial and through the Court of Appeal Criminal Division, supported that restrictive approach.
3. The claimant’s statutory point concerning evidence and video-link participation did not justify intervention at this stage. Any question about the reception of his evidence would arise only after the prosecution case, when his physical and mental condition could be reassessed. The statutory conditions in section 33A(5) of the Youth Justice and Criminal Evidence Act 1999 might or might not then be satisfied.
4. The trial judge retained potential means of securing a fair trial under common law and Article 6, including hearsay under section 116(2)(b) of the Criminal Justice Act 2003, a direction under section 35 of the Criminal Justice and Public Order Act 1994, and, if necessary, discharge of the jury. The court did not determine whether any particular measure would succeed; those matters were for the trial judge when appropriate.
5. Video-link participation before the claimant gave evidence could be available with the trial judge’s consent. The trial process was dynamic, and it would be wrong to foreclose case-management measures before the relevant stage had been reached. The application was therefore also premature.

High Court (Administrative Court): Foskett J refused permission on the papers. The renewed application was heard by Lord Justice Treacy and Mr Justice Nicol and refused.