S v Crown Prosecution Service

Decisions of the Crown Prosecution Service are amenable to judicial review, but intervention is justified only in very rare cases. Under the Victims’ Right to Review scheme, the reviewing prosecutor must reconsider the available evidence and public interest afresh. The issue is whether the resulting decision was open to a reasonable prosecutor, not whether the CPS proves that the earlier decision was wrong to the criminal standard. Natural justice does not generally require the suspect to participate in that review where the reviewer is confined to pre-existing material. Once a prosecution has begun, the trial process ordinarily provides the appropriate safeguards. A threatened judicial review does not require magistrates to adjourn committal proceedings under the mandatory terms of the Crime and Disorder Act 1998. Any particular prejudice should be addressed by seeking relief in the judicial review proceedings.

Two conjoined applications for judicial review arose from a decision by the CPS to prosecute S for rape after an earlier decision not to prosecute. The CPS review was conducted under its Victims’ Right to Review scheme following a request by the complainant. S challenged the reviewing prosecutor’s conclusion that the earlier decision was wrong and that public confidence required a prosecution.

S also challenged the decision of a district judge to send the case to the Crown Court for a preliminary hearing under section 51 of the Crime and Disorder Act 1998, rather than adjourn pending the judicial review application. The further issues were whether S was entitled to disclosure of material relating to the CPS decisions and whether the review scheme was contrary to natural justice.

1. Applications dismissed. The applications for disclosure and for permission to apply for judicial review were refused.
2. Decisions of the CPS are amenable to judicial review, but the grounds of intervention are narrow because of the constitutional importance of prosecutorial independence. The court may intervene where the policy is unlawful, the CPS fails to follow its policy, or the decision is one not open to a reasonable prosecutor. Such challenges succeed only very rarely.
3. The Guidance on a Victims’ Right to Review lawfully required the independent prosecutor to reconsider the case afresh, using only information available when the original decision was made. The relevant question was whether the reviewing prosecutor’s decision was open to a reasonable prosecutor. The CPS was not required to prove, to the criminal standard, that the original decision was unreasonable or wrong in law.
4. Natural justice did not require S to be notified of the victim’s request or invited to make further representations. The reviewer was confined to pre-existing material, including any account given by S during the investigation. The absence of a further opportunity to respond was therefore consistent with the policy’s purpose.
5. The reviewing prosecutor had properly considered the evidence of sexual intercourse, incapacity and consent, and was entitled to conclude that the case should be tried by a jury. The decision was neither irrational nor unreasonable. Any delay in completing the review did not affect its reasonableness.
6. Further disclosure was unnecessary. Although disclosure may exceptionally be ordered where proportionality under the ECHR is in issue, the present challenge concerned whether the CPS decision was open to a reasonable prosecutor, and the decision maker had explained its evidential basis.
7. A possible issue of detriment could arise only if S had relied on an unequivocal representation that he would not be prosecuted. If established, that matter could support an abuse of process application before the trial judge, but it did not provide a basis for challenging the charging decision.
8. The challenge to the district judge’s decision failed. Section 51(1) of the Crime and Disorder Act 1998 was expressed in mandatory terms, subject to the adjournment power in section 52(5). A threatened judicial review did not itself require an adjournment. Any particular prejudice should be addressed by applying for appropriate relief in the judicial review proceedings.

First-instance conjoined judicial review applications. The High Court refused permission and dismissed the application for disclosure.