Hubert, R (on the application of) v Director of Public Prosecutions & Anor

Judicial review of prosecutorial decisions must be exercised sparingly. The court should be particularly circumspect when reviewing the prosecutor’s assessment of evidential sufficiency, and still more so when reviewing the public-interest judgment. Where the evidence provides a proper foundation for prosecution, intervention is exceptional. The same two-stage evidential and public-interest test applies when the Director of Public Prosecutions considers prosecutions brought by the police and private prosecutions. A challenge cannot succeed by recasting a decision not to prosecute a particular offence as an alleged usurpation of the jury’s function. Delay may independently justify refusal of permission where a claimant abandons an earlier challenge in order to pursue a private prosecution and later seeks to revive the same challenge.

The claimant challenged decisions by successive Directors of Public Prosecutions concerning private prosecutions of two doctors who had been covertly recorded during consultations about abortions. The original DPP concluded in 2013 that the evidential test was not met for gender-specific abortion, although it was narrowly met in relation to an allegedly insufficient assessment of the pregnant woman’s health. The public-interest test was not met.

After the claimant commenced private prosecutions, the DPP intervened under section 6(2) of the Prosecution of Offences Act 1985 and discontinued them. The 2015 decision considered the available evidence, the proposed offences and the wider evidence known to exist, and adopted the earlier public-interest analysis. The claimant sought renewed permission for judicial review, alleging errors concerning the jury’s role, the public interest in gender-specific abortion and the DPP’s reliance on professional discipline.

1. Permission refused. The court rejected the renewed applications on both substantive and delay grounds.
2. The decisions under challenge did not determine whether gender-specific abortion could ever be prosecuted. Such a prosecution was legally possible where reliable evidence showed that termination had been authorised solely on gender-specific grounds and without a legitimate justification.
3. The successive DPP decisions concluded that the evidential test was not satisfied for an offence founded on gender-specific abortion. The evidential test was only narrowly met on the different question whether the doctors had failed sufficiently to assess risks to the pregnant woman’s physical or mental health.
4. The 2015 DPP decision was analytical, reasonable and properly balanced. It was permissible to consider all evidence that might become available, possible offences beyond the private prosecutor’s chosen charge, the absence of clear professional guidance, the uncertainty surrounding the doctors’ duties, and ongoing professional disciplinary proceedings.
5. For constitutional reasons, prosecutorial decisions are reviewed sparingly: R v DPP, ex parte Manning [2001] QB 330, R (Purdy) v DPP [2010] 1 AC 345 and R v DPP ex parte Kebilene [2000] 2 AC 326. That restraint applies whether the decision is to prosecute or not to prosecute. It is especially important when the challenge concerns evidential assessment or the public-interest judgment. The criticism here fell well short of the threshold for intervention, consistent with R v A [2012] 2 CAR 80.
6. The claim was also substantially delayed. The second judicial review was effectively a continuation of an earlier challenge abandoned in order to pursue private prosecutions. That tactical choice did not provide a good reason to extend time or revive the challenge.

The judgment describes an earlier judicial review challenge issued in January 2014 and withdrawn in February 2014. The claimant then commenced private prosecutions, which the DPP discontinued in March 2015. Permission for the renewed judicial review was refused on paper by Nicol J on 19 August 2015. The present court refused the renewed applications.