SY, R (on the application of) v The Director of Public Prosecutions & Anor

A decision not to prosecute is amenable to judicial review on orthodox public-law grounds, including illegality, irrationality and procedural impropriety. The court must distinguish between reviewing the legality of the decision and substituting its own assessment of prosecutorial judgment.

Where a proposed prosecution arises from substantially the same facts as earlier proceedings, the abuse-of-process jurisdiction may apply even though the later offence is legally different. The relevant question is whether a Crown Court would inevitably stay the proceedings absent special circumstances. A genuine disagreement with an earlier evidential assessment, substantial delay, the accused’s denial of the offence and the absence of prompt corrective action may make a stay inevitable.

The claimant, a woman with learning disabilities, sought judicial review of the Director of Public Prosecutions’ refusal to institute rape proceedings against the interested party. Earlier proceedings for sexual activity with a person with a mental disorder impeding choice under section 30 of the Sexual Offences Act 2003 had ended in an acquittal after the prosecution offered no evidence.

The CPS later accepted that rape charges could have been considered but concluded that a further prosecution would be barred by abuse of process. The central issue was whether the decision-maker was correct to conclude that a Crown Court would inevitably stay any subsequent rape prosecution based on the same underlying events.

1. Claim dismissed. The decision under challenge was not merely an exercise of discretion. Its central conclusion, that a subsequent prosecution would inevitably be stayed for abuse of process, was either legally correct or legally wrong.

2. A decision not to prosecute is reviewable on orthodox administrative-law grounds. The court may intervene for illegality, irrationality or procedural impropriety, including a failure properly to understand or apply the law. It should not, however, substitute its own view for a reasonable prosecutorial assessment of difficult evidential matters.

3. The proposed rape charges and the earlier charges under section 30 of the Sexual Offences Act 2003 arose from the same, or substantially the same, facts. Although the offences required different legal elements, the physical sexual activity relied upon would be the same. The abuse-of-process jurisdiction was therefore engaged.

4. The applicable principle, derived from Connelly v Director of Public Prosecutions (1964) 48 Cr App R 183, was that a second prosecution based on the same or similar facts is generally oppressive unless special circumstances make it just and convenient. The prospective question was whether a Crown Court would inevitably stay the proceedings, including whether continuation would offend the court’s sense of justice and propriety or undermine public confidence in the criminal justice system.

5. The decision-maker was entitled to conclude that rape had been considered at the initial charging stage and that the earlier decision not to proceed reflected a genuine assessment that the evidential test was not met. The court accepted that the contemporaneous handling of the case was unsatisfactory, including the failure to seek an adjournment, consult the claimant and her family, and avoid unfair assumptions arising from her disability. Those failures did not determine the legality of the later decision under review.

6. The relevant circumstances pointed decisively towards a stay. The accused denied the rape, more than eight years had passed, the earlier decision was not an admitted charging error promptly corrected, and the serious allegation had never been tried. The exceptional cases in which a second prosecution had been permitted involved prompt correction of serious charging errors, usually where guilt was admitted. Those features were absent here.

7. The court therefore concluded that a Crown Court judge would inevitably grant a stay for abuse of process. The judicial-review claim was dismissed.