Slade & Anor, R (On the Application Of) v HM Attorney General Of England And Wales

The Attorney General’s superintendence of prosecuting authorities does not require a separate investigation whenever a serious prosecution collapses. Decisions whether to undertake further inquiry are subject to judicial review only in exceptional circumstances, particularly where a detailed review has already been conducted under the aegis of the Director of Public Prosecutions.

The Attorney General may take account of work undertaken by prosecuting authorities without unlawfully delegating his function. Reasons need not be extensive, but must enable the affected person to understand the basis of the decision. Fairness does not ordinarily require a provisional view or disclosure of material protected by public interest immunity before the decision is made.

The claimants sought judicial review of the Attorney General’s decision of 27 February 2017 not to commission a separate review into the collapse of their murder retrial and the safety of related robbery convictions.

The Attorney General had considered a detailed report prepared for the Director of Public Prosecutions, further investigative material and resulting CPS policy and training changes. The claimants argued that the decision involved unlawful delegation, inadequate reasons and procedural unfairness, including reliance on undisclosed and allegedly non-independent material.

1. Disposition. The Divisional Court dismissed the claim for judicial review on all three grounds.
2. Superintendence and inquiry. Section 3(1) of the Prosecution of Offences Act 1985 places the Director of Public Prosecutions under the Attorney General’s superintendence. The Protocol between the Attorney General and the Prosecuting Departments confirms that the Attorney General may engage with particularly sensitive cases or cases revealing systemic issues, while preserving prosecutorial independence. The function includes responsibility for prosecution policy and the overall effectiveness of prosecuting agencies.
3. The Attorney General’s decision whether to undertake further inquiry was even less susceptible to intervention than an ordinary prosecutorial decision. The court applied the exceptional-intervention principle explained in R (Corner House Research) v SFO [2009] 1 AC 756. The Attorney General did not delegate his function by considering the detailed review already undertaken. His obligation was to decide whether further inquiry was needed, not necessarily to conduct the inquiry personally.
4. The initial instruction to prepare the detailed review could not be impugned. The later decision to take no further steps was made personally by the Attorney General, against the background of that review and additional investigation. The court rejected the reliance on inadequate inquiry by reference to Secretary of State for Education and Science v Tameside MBC [1977] AC 1014.
5. Reasons. Assuming that a common-law duty to give reasons arose, the Attorney General’s letter, supplemented by the evidence, adequately explained why no further review was required. The common law required adequate, not ample or detailed, reasons. The court followed the approach reaffirmed in Dover District Council v Campaign to Protect Rural England [2017] UKSC 79.
6. Fairness. The claimants had an opportunity to make meaningful representations on the matters identified by the trial judge and did so. They had no entitlement to make representations on material which they had no right to see because public interest immunity had been upheld. This was not a case requiring the decision-maker to disclose a provisional view before making a final decision. The alleged lack of independence of a police report did not determine the Attorney General’s decision and did not justify relief.