Deripaska, R (on the application of) v Chernukhin & Anor

Judicial review of an independent prosecutor’s decision is available only in highly exceptional circumstances. The court gives prosecutors a significant margin of discretion when assessing evidential and public-interest considerations. A review decision should be read broadly and sensibly, rather than subjected to punctilious textual analysis. The weight given to relevant factors is for the prosecutor, provided material considerations have been taken into account and the decision is not irrational in the Wednesbury sense. Guidance stating that prosecutions should usually proceed does not displace the two-stage test in the Code for Crown Prosecutors. It requires both sufficient evidence and a public-interest decision in favour of prosecution.

The claimant sought judicial review of the Director of Public Prosecutions’ decision to take over and discontinue a private prosecution of Vladimir Chernukhin for acts tending or intended to pervert the course of public justice. The prosecution arose from contentious civil and arbitral proceedings between the claimant and Mr Chernukhin.

Permission was refused on the papers by Sir Ross Cranston. The claimant renewed the application before Mrs Justice Tipples. Ground 3, alleging improper influence, was abandoned. Ground 2, concerning procedural defects in the intervention, was accepted to lead to the same conclusion as Ground 1. The central issue was whether the DPP’s public-interest decision was irrational or inconsistent with CPS policy and guidance.

1. Application dismissed. Permission to apply for judicial review was refused because none of the grounds had a realistic prospect of success.
2. The court strongly discourages challenges to decisions of independent prosecutors. That inhibition applies equally to assessments of evidential prospects and public interest. Intervention is justified only in highly exceptional circumstances, as explained in R(Cornerhouse Research) v The Serious Fraud Office [2019] AC 756 and R(Gujra) v Crown Prosecution Service [2013] 1 AC 484.
3. The Code for Crown Prosecutors requires a two-stage assessment: first, whether the evidential stage is met; and secondly, whether prosecution is required in the public interest. The Public Justice Offences charging guidance merely restated that approach. Its statement that prosecutions should usually proceed did not create a presumption overriding the public-interest stage. This was consistent with R(on the application of Ram) v Director of Public Prosecutions [2016] EWHC 1426 (Admin).
4. The prosecutor had considered seriousness, culpability, harm, proportionality and other material factors. The review had to be read in a broad and common-sense manner. It was unnecessary for the prosecutor to refer expressly to every item of evidence. The complaint that insufficient weight was given to particular factors could not succeed because weight was quintessentially a matter for the decision maker, subject only to Wednesbury irrationality. The court applied the approach in R(on the application of) “Monica” v The Director of Public Prosecutions [2019] QB 1019 and R(on the application of Greenpeace Limited) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 55 (Admin).
5. The Resident Judge’s email and subsequent correspondence amounted to a request for CPS intervention under the relevant guidance. Ground 2 was therefore hopeless.
6. As exceptional circumstances existed, the claimant was ordered to pay the defendant’s and interested party’s costs of the acknowledgements of service, the renewal hearing and judgment.

1. High Court, Administrative Court: Sir Ross Cranston refused permission on the papers. The claimant renewed the application before Mrs Justice Tipples, who refused permission and dismissed the claim.