L, R (On the Application Of) v The Director of Public Prosecutions

A prosecutor assessing whether a charge has a realistic prospect of conviction must identify the essential elements of the alleged offence and assess the available evidence against them. A bare conclusion that the evidence is insufficient does not demonstrate that this task was performed. In judicial review proceedings, the court must refuse relief under section 31(2A) of the Senior Courts Act 1981 only where it is highly likely that the outcome would not have been substantially different. That threshold remains high, particularly where the original decision-making process was fundamentally flawed and the lawful outcome remains a matter for the executive.

The claimant, a Filipino national, challenged the CPS decision not to charge her former employers under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. She alleged that they had deceived her about her pay and working hours in order to induce her to enter the United Kingdom and provide domestic services.

The CPS accepted that its decision letters had not addressed evidential sufficiency under section 4(4)(c), but argued that the letters read together showed that issue had been considered, or that the outcome would inevitably have been substantially the same. The central issue was whether the decision maker had assessed the evidence against the elements of the section 4(4)(c) offence and, if not, whether relief had to be refused under section 31(2A) of the Senior Courts Act 1981.

1. Claim allowed. The decision of 13 August 2019 was quashed and the DPP was required to reconsider and remake the charging decision.
2. Section 4(4)(c) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 provided a distinct potential route to criminal liability based on deception designed to induce the provision of services. The decision maker had to assess the evidence concerning the alleged deception, the claimant’s inducement to enter the United Kingdom, and whether that evidence gave a realistic prospect of conviction.
3. Although the June decision letter referred to being forced, threatened or misled to provide services, that assertion was not supported by any analysis of the relevant evidence. The references to pay and working hours were made in the context of section 4(4)(a), concerning slavery, servitude and forced labour.
4. The August decision letter likewise focused on section 4(4)(a). Its reference to considering every potential route did not establish that section 4(4)(c) had been considered. The decision maker had not grappled with the evidence that the claimant had been promised particular pay and hours, that the actual terms were materially worse, and that the promised terms were the reason she came to the United Kingdom. The approach was fundamentally flawed.
5. The CPS’s wide discretion in charging decisions did not protect a decision reached by applying the wrong legal approach. Section 31(2A) of the Senior Courts Act 1981 did not require the court to refuse relief. In light of the fundamental flaw, it was impossible to say that it was highly likely that a lawful reconsideration would produce substantially the same outcome. The court was not to indicate what the charging decision should be.

The claim followed earlier police and CPS reviews. The CPS’s decision not to charge was maintained in June 2019 and reconsidered in August 2019. The Administrative Court allowed the judicial review claim and quashed the August decision.