John-Baptiste, R (On the Application Of) v The Director of Public Prosecutions

A decision by the Director of Public Prosecutions or the Crown Prosecution Service not to prosecute is amenable to judicial review, but intervention is confined to highly exceptional cases. The court must respect the prosecutor’s experience and judgment about how the evidence and likely defences would fare at trial.

An inference is distinct from speculation. An inference is justified where the evidence leads to a sure conclusion rather than several plausible explanations. A decision that the evidential test is not met is not irrational merely because another experienced prosecutor might reach a different conclusion.

The claimant sought judicial review of the decision, made on behalf of the Director of Public Prosecutions, not to prosecute her daughter’s former partner for manslaughter following her fatal fall from a fifth-floor balcony.

The proposed prosecution depended on proving that the suspect had committed common assault by putting the deceased in fear of violence, causing her to flee and fall. The CPS obtained advice from three experienced criminal barristers. Two advised that the evidence did not provide a realistic prospect of conviction; the third considered that the evidential threshold was met. The central issue was whether the final decision not to prosecute was irrational.

1. The claim was dismissed. The decision not to prosecute was not irrational.
2. A decision by the DPP or CPS not to prosecute is amenable to judicial review, but the power to intervene is exercised sparingly. Parliament has entrusted prosecutorial decisions to an independent professional authority. The court must therefore adopt a strict self-denying approach, while preserving an effective remedy in an appropriate case.
3. The relevant question was whether it was more likely than not that a properly directed jury would convict. That required assessment of the evidence likely to be available at trial and the likely defences. The decision-maker was entitled to consider the competing explanations of homicide, accident and suicide.
4. The distinction between inference and speculation was material. An inference could be drawn where disparate evidence led to a sure conclusion. Speculation involved filling evidential gaps by guesswork where several plausible conclusions remained.
5. The evidence did not compel the conclusion that the deceased had been fleeing an immediate threat of violence. The evidence of the argument, neighbours’ observations, the suspect’s differing accounts, alleged bad character and items found in the flat could reasonably be viewed as insufficient to prove the necessary assault. The competing accounts remained equally consistent with accident or suicide.
6. The fact that experienced prosecutors and counsel reached different conclusions demonstrated that more than one rational view was available. The final decision-maker was entitled to conclude that the evidential threshold was not met. The claim was therefore dismissed.