Shaw, R (On the Application Of) v Cheshire Constabulary

Judicial review of a decision not to prosecute, investigate further, or take specified investigative steps is available only in wholly exceptional circumstances. Decisions involving evidential sufficiency and the public interest fall within the broad judgment of the investigating or prosecuting authority. The court will be extremely reluctant to direct the police to pursue particular lines of inquiry, such as obtaining evidence or interviewing witnesses. A claimant who cannot establish unlawfulness in the decision itself must accept the investigative conclusion reached by the police.

The claimant sought permission for judicial review of Cheshire Constabulary’s decisions not to investigate further allegations of fraud against a solicitor. The police had investigated the allegations and concluded that seeking a production order for computer backup tapes was unlikely to succeed and would probably not produce relevant evidence. They also declined to interview two former information-technology employees.

Permission had previously been refused on paper by Wilkie J. The renewed application challenged both the decision to close the investigation and the refusal to take the specified investigative steps.

1. The renewed application for permission to apply for judicial review was dismissed. Although delay or want of promptness was potentially relevant, the court considered the merits.
2. The approach in R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 2000 (Admin), [2007] QB 727 established that, save in a wholly exceptional case, the court will not intervene by judicial review in a discretionary decision whether to investigate or prosecute fraud. Decisions of this kind involve assessments of evidential sufficiency and the public interest, together with a broad range of competing considerations.
3. The present decision involved a police investigation that had already been conducted, but that difference did not make the decision unlawful. The police were entitled to conclude that a production order under section 345 of the Proceeds of Crime Act 2002 was unlikely to succeed and that the tapes would not yield relevant evidence.
4. The court would direct how an investigation was to be conducted only in the most truly exceptional circumstances. It would not order the police to seek the production order or interview the proposed information-technology witnesses. Since no further investigative step was required, the claimant had to accept the police’s conclusion.
5. The claimant was ordered to pay the defendant’s acknowledgement-of-service costs in the sum of £2,031.12. The judge indicated that any further appeal or application would require a genuinely arguable point of law.

Permission to apply for judicial review was refused on paper by Wilkie J. The claimant renewed the application before the High Court (Administrative Court), which dismissed it.