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

The Crown Prosecution Service is responsible for prosecutorial functions, not criminal investigation. The Director of Public Prosecutions’ statutory duty to advise police forces does not include a power to refer an allegation to the police merely to prompt an investigation. The Code for Crown Prosecutors and CPS guidance cannot create such a power or alter the statutory division between investigation and prosecution. A judicial review claim also requires an identifiable decision capable of challenge. Convention-based investigative obligations require an arguable basis showing the relevant risk and an ineffective investigation; speculative consequences are insufficient. Apparent lack of independence cannot arise where the alleged decision was never made. Permission may be refused where the proposed grounds are unarguable.

The claimant sought renewed permission to bring judicial review proceedings against the Director of Public Prosecutions. He alleged that the DPP had unlawfully failed to refer reported conduct by Dominic Cummings to the police for investigation under regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations and for possible public nuisance.

Permission had been refused on paper by Swift J. The claimant challenged that decision, maintaining that the DPP possessed a statutory or extra-statutory power to refer the matter, and that the failure engaged public law, Convention, independence and transparency grounds. The central issues were whether such a power existed, whether the correspondence contained a reviewable decision, and whether any of the proposed grounds were arguable.

1. Outcome. The Divisional Court refused the renewed application for permission. The challenge was not arguable.
2. No power to refer for investigation. Sections 2 and 3 of the Prosecution of Offences Act 1985 establish a deliberate distinction between investigative agencies and the prosecutorial role of the DPP. Section 3(2)(e), requiring advice to police forces on matters relating to criminal offences, concerns advice. A referral or informal prompt to initiate an investigation is qualitatively different and would trespass across the investigation/prosecution boundary. R (on the application of the DPP) v Sunderland Magistrates’ Court [2014] EWHC 613 (Admin) supported that conclusion.
3. Guidance. The Code for Crown Prosecutors and the December 2018 CPS guidance reinforce, rather than alter, the statutory allocation of functions. They permit advice concerning an existing or contemplated investigation, but state that prosecutors cannot direct police investigators. The guidance on requests for police enquiries was inapplicable: the conduct was already widely known, a police investigation had occurred, and the claimant’s letter sought information and indicated a possible private prosecution rather than making a complaint requesting referral.
4. No reviewable decision. The DPP’s letter of 10 June 2020 merely explained that no referral had occurred and that the DPP lacked the asserted power. It did not communicate a positive decision refusing referral. Grounds based on failure to exercise a discretion therefore could not succeed.
5. Convention and independence grounds. The alleged Articles 2 and 3 obligations required, at minimum, an arguable risk of death or ill-treatment and an ineffective investigation. The claimant relied only on speculative possible consequences. Grounds alleging apparent lack of independence and lack of transparency also failed: there was no relevant decision to impugn, and the allegations had no evidential substance. The final order was refusal of permission.

• High Court, Administrative Court: Swift J refused permission on paper on 31 July 2020.
• High Court, Divisional Court (Administrative Court): The renewed application for permission was refused on 3 November 2020, with reasons given in [2020] EWHC 2962 (Admin).