Constable v The Crown Prosecution Service (CPS) (Rev 1)

The Administrative Court will intervene in a prosecutorial decision only in rare cases. A challenge to a decision not to prosecute must show more than disagreement with the prosecutor’s assessment of evidence, weight or prospects of conviction. The claimant must establish an arguable case that the decision was perverse or one which no reasonable prosecutor could reach. Multiple independent applications of the correct evidential test, supported by rational reasons, make such intervention especially difficult. A court may refuse permission where the challenge is totally without merit.

The claimant sought judicial review of the Crown Prosecution Service’s decisions to take over and discontinue private prosecutions alleging fraud and conspiracy to defraud. The CPS reviewed the matter on several occasions and concluded that the evidence did not provide a realistic prospect of conviction, particularly because dishonesty and conspiracy could not be proved.

The claimant renewed his application for permission and sought an extension of time, arguing that the CPS had misunderstood the evidence and the law. The central issue was whether the CPS decision was perverse or one which no reasonable prosecutor could have reached.

1. The application for an extension of time and the renewed application for permission to seek judicial review were refused. The claim was found to be totally without merit.
2. The Administrative Court’s jurisdiction to review a prosecutorial decision exists but is exercised sparingly. Applying R (Bermingham and others) v Director of the SFO [2007] QB 727, prosecutorial decisions involve expert assessments of evidential weight and balance which ordinarily fall within the professional judgment of the prosecutor.
3. The claimant had to show an arguable foundation for the proposition that the CPS decision was perverse or one which no reasonable prosecutor could reach. He did not come close to satisfying that demanding standard.
4. The CPS had applied the correct evidential test. At least four CPS lawyers had independently considered the proposed prosecutions and reached the same conclusion. Their reasons addressed the absence of evidence capable of proving dishonesty, conspiracy, coercion, unlawful pressure, criminal intent or loss to the Exchequer.
5. The claimant’s disagreements with the assessment of the evidence, including the omission of information from the inheritance-tax form and the alleged absence of an immediate tax loss, did not establish a misunderstanding of law or fact. The conclusion that prosecution prospects were insufficient was one the prosecutors were entitled to reach.
6. The respondent was awarded costs of £1,507.20. The claimant’s limited means and alleged technical bankruptcy did not justify withholding the order.

This was a renewed application for permission in the Administrative Court. The judgment records that an earlier application for permission had been refused on paper by Sir Wynn Williams.