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

A decision not to prosecute is reviewable only in rare circumstances, but the court will intervene where the prosecutor materially misapplies the evidential or public-interest stages of the Full Code Test. Pending disciplinary proceedings may be considered, but they cannot automatically displace a strong public interest in prosecuting serious alleged offences by a police officer. The seriousness of the offence, its effect on the administration of justice, the consequences of the conduct and public confidence must be addressed. In considering an allegation of attempting to pervert the course of justice, the prosecutor must distinguish the accused’s motive from the intention required for the offence. A desire to achieve what the accused regards as a just result does not necessarily prevent the conduct from tending, and being intended, to pervert the course of justice.

The claimant sought judicial review of the decision of the Director of Public Prosecutions not to prosecute a police officer for perjury, misconduct in a public office and attempting to pervert the course of justice. The reviewing prosecutor concluded that the evidential test was met for perjury and misconduct, but that prosecution was not in the public interest because the officer faced disciplinary proceedings and had acted from a desire to correct evidence.

Permission to apply for judicial review was ultimately granted by the Court of Appeal. The issues before the Divisional Court included whether the decision-maker was appropriate, whether disciplinary proceedings could be considered, whether the public-interest conclusion was irrational, and whether the prosecutor had applied the law correctly to the proposed perverting-the-course-of-justice charge.

The claim succeeded. The court quashed the reviewing prosecutor’s decision dated 11 September 2015 and directed that the charging decision be remade by a member of the Special Crime Unit.

1. Review of prosecution decisions. Challenges to decisions whether to prosecute succeed only in rare circumstances. This was nevertheless such a case because the decision was seriously flawed in its treatment of both the public-interest and evidential stages of the Full Code Test.
2. Police allegations and disciplinary proceedings. The alleged conduct did not amount to “seriously corrupt activity” or conduct likely to seriously harm the administration of justice within the CPS guidance. Those expressions connoted, respectively, an element of venality or personal gain, and a risk to the justice system generally rather than interference with an individual trial. Referral to the Special Crime Unit was nevertheless highly desirable to avoid any appearance of local partiality.
3. The reviewing prosecutor was entitled to take pending disciplinary proceedings into account. They were not, however, a substitute for a criminal prosecution. Only limited weight could be given to the speculative prospect of dismissal or demotion. The prosecutor failed to address adequately the seriousness of perjury, the impact on the Crown Court trial, the resulting delay, expense and anxiety, the likely penalty, and public confidence in prosecuting serious offences by police officers.
4. In relation to attempting to pervert the course of justice, the prosecutor wrongly treated the officer’s desire to avoid an injustice as decisive. Motive may illuminate intention, but the offence concerns the course of justice, not merely the accused’s intended ends of justice. The available evidence required a careful analysis of what a jury could infer about intention.
5. The court reviewed the decision on the evidence available to the prosecutor and expressed no concluded view on the fresh decision, which could take account of later disciplinary evidence.

• Court of Appeal: On 9 January 2018 Lewison LJ granted permission to apply for judicial review against the refusal of permission by Wyn Williams J and directed that the claim be returned to the Administrative Court.
• High Court (Administrative Court), Divisional Court: The court rejected a late jurisdictional amendment, allowed the substantive challenge on two grounds, quashed the decision and directed reconsideration by the Special Crime Unit.