Chaudhry, R (On the Application Of) v Director of Public Prosecutions

A victims’ right-of-review scheme may define the decisions falling within its scope. The right to review a decision not to prosecute is not an unlimited entitlement to review every prosecutorial decision. A scheme may exclude cases where some, but not all, possible suspects are charged, provided the prosecutor retains a discretion to consider exceptional cases. That approach may properly protect prosecutorial independence, trial efficiency, finite resources and the interests of defendants and victims. The criteria for exercising the exceptional discretion are sufficiently transparent where they are informed by publicly available prosecution guidance.

The claimant’s children had been abducted by her former husband. After his conviction, the Crown Prosecution Service continued to decline to prosecute his sister. The claimant challenged the Victims’ Right of Review Guidance, arguing that its exclusion of cases involving some but not all possible suspects was unlawful under the Directive and common law.

The CPS conducted an exceptional review, reaching the same conclusion. The claimant did not challenge that conclusion but maintained that the guidance unlawfully restricted the right to review and that the amended guidance lacked transparent criteria.

1. The claim was dismissed. The claimant’s challenge was considered despite reservations about standing and the academic nature of the proceedings.
2. The original paragraph 11(iii) of the Victims’ Right of Review Guidance did not impose an absolute bar. The CPS had in fact exercised a discretion to review the case. That conclusion defeated the principal challenge.
3. The right to review recognised in R v Killick [2011] EWCA Crim 1608; [2012] 1 Cr App R 10 and article 11 of the Directive 2012/29/EU did not require an unlimited scheme. The Directive was expressed at a high level of generality and expressly left procedural rules to national law.
4. The exclusion was lawful. Decisions about which suspects to prosecute are paradigmatic exercises of independent prosecutorial judgment. A general review right could create significant resource pressures, delay criminal proceedings, undermine efficient case management and generate difficulties in jury trials. The scheme appropriately distinguished cases involving no prosecution from cases in which prosecution continued but its scope was limited.
5. The 2016 amendment lawfully made the exceptional discretion express. The ordinary rule could be that decisions not to prosecute some suspects would not be reviewed, subject to consideration in very exceptional circumstances. A general right subject only to an exclusionary discretion was not required.
6. The criteria were transparent. The publicly available Code for Crown Prosecutors, including its provisions on reconsidering prosecution decisions, informed the exercise of the exceptional discretion. Greater precision would be impractical and potentially counter-productive.
7. Mr Justice Nicol agreed with Lord Justice Gross.