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

A decision not to prosecute is reviewable only on orthodox public-law grounds and judicial review remains a highly exceptional remedy. The prosecutor must nevertheless identify and apply the correct legal ingredients of each suspected offence. For perjury under the Perjury Act 1911, the relevant mental element includes making a statement without believing it to be true; the alternatives are not confined to deliberate dishonesty and honest mistake. Prosecutors may assess all potentially relevant material, including explanations tested in disciplinary proceedings, when applying the evidential stage of the Full Code Test. A court must respect the prosecutor’s primary role and must not substitute its own assessment of the evidence.

The claimant sought judicial review of the Director of Public Prosecutions’ decision not to prosecute a police officer for perjury, perverting the course of justice and misconduct in public office. An earlier decision not to prosecute had been quashed by the Divisional Court in [2018] EWHC 1844 (Admin), which directed a fresh decision.

The fresh decision concluded that there was insufficient evidence to provide a realistic prospect of conviction. The issues were whether the prosecutor had misunderstood the legal ingredients of perjury and perverting the course of justice, improperly assessed the evidence, failed to consider relevant material, or reached an irrational conclusion.

1. Outcome. The application succeeded in part. The decision not to prosecute for perjury was flawed and was quashed to that extent. The decisions not to prosecute for perverting the course of justice and misconduct in public office were lawful. The perjury issue was remitted to the DPP for reconsideration.
2. Standard of review. A prosecutorial decision is amenable to judicial review on recognised public-law grounds, including application of an unlawful policy, failure to follow settled policy or guidance, and a decision to which no reasonable prosecutor could have arrived. The remedy is highly exceptional because prosecution decisions primarily involve the prosecutor’s informed assessment of evidence and likely trial outcomes.
3. Perjury. Section 1 of the Perjury Act 1911 requires proof that a person lawfully sworn in judicial proceedings wilfully made a material statement which he knew to be false or did not believe to be true. The prosecutor correctly identified the statutory wording initially, but then reformulated the issue as a choice between deliberate dishonesty and honest mistake. That omitted the distinct possibility that the statement was made without thought or without belief in its truth. The omission was material, and the decision was therefore legally flawed.
4. Perverting the course of justice. The offence requires a positive act or course of conduct having a tendency to, and intended to, pervert the course of public justice. Inaction is insufficient. A laudable motive does not necessarily negate the required intention, but the prosecutor was entitled to conclude that there was no realistic prospect of a jury finding the necessary intention on these facts. The authority of R v Cotter was materially distinguishable.
5. Evidence and jury function. Prosecutors were entitled to consider all potentially relevant material, including the suspect’s explanations and how they fared under cross-examination in disciplinary proceedings. That did not usurp the jury’s function. The decision-maker remained entitled to assess whether the evidential threshold was met, while the court’s role remained supervisory.

The judgment describes an earlier Divisional Court decision which quashed the first decision not to prosecute and directed reconsideration: [2018] EWHC 1844 (Admin). The present Divisional Court reviewed the fresh decision and granted relief only in relation to perjury.