Johnson, R (On the Application Of) v Crown Prosecution Service

Judicial review of a prosecutorial decision is confined to strict public law grounds. The court must not substitute its assessment of the evidence for that of the specialist prosecutor or subject the decision letter to excessively punctilious textual analysis. A prosecutor may assess the evidential stage by reference to the likely outcome of an insanity defence, including a likely special verdict, before considering the public interest. The public interest factors in the Code for Crown Prosecutors are not exhaustive and need not be addressed mechanically. In judicial review, further disclosure is required only where it appears necessary to resolve the matter fairly and justly; a public authority’s duty of candour ordinarily requires disclosure of its reasoning and a fair summary of significant evidence, rather than the underlying expert report itself.

The claimant, the widower of Lauren Johnson, challenged the Crown Prosecution Service’s decision not to prosecute George Steele for causing death by dangerous driving. The decision followed an earlier review which was accepted to be legally indefensible and a further review by a specialist prosecutor. The further decision concluded that the evidential test was satisfied, but that prosecution was not in the public interest because a jury would probably return a special verdict of not guilty by reason of insanity, followed by an absolute discharge.

The claimant sought permission to bring judicial review proceedings on four grounds, including error of law, misunderstanding of medical evidence, failure to ask the proper medical question and irrationality. He also sought disclosure of the medical evidence. The central issues were whether the decision was arguably unlawful and whether disclosure was necessary for the court to assess it fairly.

1. Permission refused and disclosure refused. The decision not to prosecute was rational and lawful, and the grounds were not properly arguable.
2. The evidential stage of the Full Code Test was satisfied. For this purpose, the likely outcome of a trial could include a finding of not guilty by reason of insanity. The prosecutor was entitled to conclude that the defence was more likely than not to succeed, having regard to the burden of proof and the requirement for evidence from at least two medical practitioners under s.1 of the Criminal Procedure (Insanity & Unfitness to Plead) Act 1991.
3. Judicial review does not permit the court to reweigh the evidence or reach its own conclusion on whether the driver lost control or whether the medical evidence established a seizure. The prosecutor was entitled to assess the accident evidence first and then consider the medical evidence in its context. The MRI evidence was not conclusive in isolation, but it was a relevant piece of evidence in the overall assessment.
4. The prosecutor was not required to ask whether the medical evidence alone established unconsciousness. The proper question was whether, considering all the evidence together, a reasonable jury would be likely to find that the loss of control had a medical basis.
5. The public interest stage did not require a mechanistic consideration of every factor in the Code for Crown Prosecutors. The listed questions are non-exhaustive and their weight varies with the facts. In the unusual circumstances of a likely insanity verdict and absolute discharge, it was lawful to focus on public protection and disqualification, while taking account of the seriousness of the offence and its impact on the family and community.
6. The CPS complied with its duty of candour. The decision letter and subsequent correspondence fairly summarised the medical evidence. Applying the test in Tweed v Parades Commission for Northern Ireland, disclosure of the underlying medical reports was not necessary to resolve the claim fairly and justly.

On 9 November 2018, HHJ Pelling QC, sitting as a Deputy High Court Judge, extended time but refused permission on the papers. The claimant renewed the permission application before the Administrative Court. Mrs Justice Yip considered the matter afresh and refused permission, also refusing disclosure.