End Violence Against Women Coalition, R (On the Application Of) v Director of Public Prosecutions

Prosecutors must apply the evidential limb of the full Code test when deciding whether to prosecute. The merits-based approach is another way of expressing that test, not an alternative or lower threshold. Prosecutors must assess all the evidence objectively, assuming a properly directed and impartial tribunal, without relying on myths, stereotypes or predictions based on previous verdicts.

Removing references to the merits-based approach from prosecutorial guidance does not change the governing policy where the remaining guidance continues to require the full Code test. A public authority may alter the language of guidance to remove confusion without consulting stakeholders where the alteration makes no substantive policy change.

The claimant challenged the Director of Public Prosecutions’ decision to remove references to the merits-based approach from guidance and training concerning rape and serious sexual offences. It alleged that the decision unlawfully encouraged a predictive or bookmaker’s approach to charging and was irrational, created a risk of systemic illegality, required prior consultation, breached the public sector equality duty and violated a duty of transparency.

The Divisional Court refused permission to apply for judicial review in [2020] EWHC 929 (Admin). The Court of Appeal subsequently granted permission under CPR 52.8, retained the substantive claim and heard the judicial review at first instance. The central issue was whether the removal of the terminology changed the legal substance of the prosecution policy.

1. The application for judicial review was dismissed. The merits-based approach, properly understood, was shorthand for the evidential limb of the full Code test. It was neither an alternative test nor a lower threshold for rape and serious sexual offence cases. The bookmaker’s approach, which predicts verdicts by reference to past experience and perceived jury prejudices, was not lawful prosecutorial decision-making.

2. The Director had not adopted legally erroneous guidance or changed the substance of prosecution policy. The evidence showed that some prosecutors had misunderstood the merits-based terminology as creating a presumption in favour of prosecution or permitting weaknesses in the evidence to be disregarded. The roadshows and revised guidance reinforced the requirement to evaluate all the evidence objectively under the full Code test. Removing the confusing terminology did not expressly or impliedly authorise the bookmaker’s approach.

3. The decision was not irrational under the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and CCSU v Minister for the Civil Service [1985] AC 374. The Director and senior prosecutors were entitled to rely on their accumulated experience, performance information and the Inspectorate’s findings. They had ample material for concluding that the full Code test was being misunderstood. The claimant’s proposed alternative course did not establish that the chosen course was irrational.

4. The decision created no risk of systemic illegality. It removed an identified source of confusion and emphasised the only lawful test. The court refused the claimant permission to rely on statistical expert reports because they were not reasonably required to resolve the proceedings and could not establish what caused the decline in prosecution rates.

5. There was no duty to consult stakeholders. Consultation is directed to substantive policy decisions, whereas the decision merely restated the existing lawful policy in different language. The court also doubted whether any established practice imposed a legal duty to consult about substantive changes to guidance or training materials.

6. The decision did not breach section 149 of the Equality Act 2010. That provision requires the regard which is due in the particular context; it neither dictates a result nor demands formulaic box-ticking. The decision reinforced a lawful and non-discriminatory charging test. In any event, the Director’s evidence showed that she understood the gender context and gave the relevant equality needs due regard.

7. The transparency ground also failed. A public policy affecting the exercise of public functions generally must be published so that affected persons can direct their representations appropriately. The disputed guidance was addressed to prosecutors to assist compliance with their legal duties, while the governing Code was public and transparent. There was no different secret policy.

1. Court of Appeal (Civil Division): Granted permission to apply for judicial review, retained the substantive claim and dismissed it: [2021] EWCA Civ 350.

2. High Court, Divisional Court: Refused permission to apply for judicial review: [2020] EWHC 929 (Admin).