Wyatt & Anor, R (On the Application Of) v Thames Valley Police

A police decision to close a criminal investigation is lawful where the investigation is impartial, proportionate and pursues all reasonable lines of inquiry. Judicial review involves a reasonably intensive standard of review, but the court does not substitute its own view on whether prosecution should occur. The police must give intelligible and adequate reasons for deciding not to proceed with potential charges. A legal error will not justify relief where it is highly likely that the outcome would have been substantially the same. The Full Code Test requires an objective assessment of whether the evidence gives a realistic prospect of conviction, followed by consideration of the public interest.

The claimants challenged the Chief Constable’s decision, following a criminal complaint concerning the preparation and use of a planning enforcement plan, to close the investigation because the evidence did not meet the CPS threshold. They alleged failures to investigate diligently and independently, inadequate reasons, errors concerning copyright offences, and a misdirection concerning perverting the course of justice.

The investigation considered fraud, forgery, perjury and copyright offences. The court also permitted argument on the mens rea required for perverting the course of justice.

1. Investigation. The investigation was impartial, reasonable and proportionate. It involved extensive witness interviews, documentary examination and repeated opportunities for the claimants to provide information. The obligation under section 23(1) of the Criminal Procedure and Investigations Act 1996 and the associated Code of Practice required all reasonable steps and reasonable lines of inquiry, which had been pursued.
2. A reasonably intensive standard of review was appropriate, having regard to the statutory investigation duty, the importance of diligent investigation and the court’s competence to assess investigative steps. That review remained subject to proportionality and a margin of appreciation. Previous investigative failures formed part of the context but did not automatically taint the later investigation.
3. The omission of an express analysis of perverting the course of justice did not invalidate the decision. The reasoning on perjury, fraud and intent addressed the material issues, and the evidence would not have provided a realistic prospect of conviction. The outcome would in any event have been unchanged.
4. Independence and reasons. A fair-minded and informed observer would not conclude that there was a real possibility of bias. The report gave adequate and intelligible reasons for the decision, including why further investigation was unnecessary.
5. Copyright. The report contained an error in stating that copyright matters were purely civil. Nevertheless, the evidence disclosed formidable obstacles to any prosecution under sections 107(1) and 107(2A) of the Copyright, Designs and Patents Act 1988, including proof of distribution, knowledge, infringement and the possible application of section 45(1) concerning judicial proceedings. It was highly likely that the same decision would have been reached without the error.
6. The court granted permission on the additional perverting-the-course-of-justice ground but dismissed it on the merits. The claim for judicial review failed. Relief was also barred by section 31(2A) of the Senior Courts Act 1981.