D, R (On the Application Of) v White

A decision following a Victim’s Right to Review scheme not to prosecute is subject to judicial review, but the grounds remain narrow. The court must respect the constitutional responsibility of the prosecutor and intervene only where an established public law error is shown, such as irrationality, Wednesbury unreasonableness, reliance on irrelevant considerations, failure to consider relevant matters, or, if available, a material mistake of fact causing unfairness. A disagreement about the weight given to evidence is insufficient. The court assesses fairness objectively, by reference to the reasonable observer, rather than the complainant’s subjective perception. An error in reasoning will not normally justify relief where the same decision must have been reached in any event.

The claimant challenged the decision of the Director of Public Prosecutions, following reviews under the Victim’s Right to Review scheme, not to prosecute the interested party for historic child sexual abuse allegations. The reviewing prosecutor applied the evidential stage of the Full Code Test and concluded that there was no realistic prospect of conviction.

The claimant alleged irrationality, reliance on irrelevant considerations, and mistake of fact causing unfairness. The challenge concerned the prosecutor’s assessment of inconsistencies in the claimant’s account, the absence of supporting evidence, and material that would have required disclosure.

1. The claim was dismissed. The reviewing prosecutor was entitled to conclude that the evidential test in the Code for Crown Prosecutors was not met. The decision was not vitiated by irrationality, Wednesbury unreasonableness, reliance on irrelevant considerations, or mistake of fact.
2. A decision not to prosecute remains amenable to judicial review after a Victim’s Right to Review procedure. The court should intervene sparingly because prosecutorial decisions are constitutionally entrusted to the independent prosecuting authorities. The applicable approach, reflected in R v DPP, Ex p Manning [2001] QB 330 and R(L) v DPP [2013] EWHC 1752, permits intervention where an established public law error is shown. If reasonable prosecutors could disagree, a challenge is unlikely to succeed.
3. The court must consider the review as a whole. It should not undertake a close textual analysis of individual examples or substitute its assessment of evidential weight for that of the prosecutor. The matters relied upon, including inconsistencies, lack of corroboration, and potentially undermining unused material, were relevant considerations. Even if one observation concerning penetration had been erroneous, it would not have been sufficiently material to vitiate the decision.
4. The court assumed, without deciding, that mistake of fact causing unfairness could constitute a further ground of challenge, applying the ingredients identified in E v Home Secretary [2004] EWCA Civ 49. The alleged mistake was not established. Although the prosecutor may have overstated the claimant’s description of other potential victims, the evidence showed that some had been put forward as victims and none supplied support for the allegations.
5. Fairness is assessed objectively. The subjective perception of the complainant or victim is not the legal yardstick. The independence of prosecutorial decision-making remains of constitutional importance.

This was a first-instance judicial review claim. The judgment records earlier CPS charging and review decisions, culminating in the specialist prosecutor’s July 2016 Victim’s Right to Review decision, but no prior court judgment in the same proceedings.