R (End Violence Against Women Coalition) v DPP

The court held that prosecutors must apply the Code for Crown Prosecutors' two-part "full Code test" and that the "merits-based approach" (MBA) is a shorthand expression of the evidential limb of that test rather than a separate test. The Director of Public Prosecutions' decision to run RASSO roadshows and to remove discrete references to the MBA from CPS guidance did not change the legal test or adopt guidance wrong in law. The challenge alleging irrationality, a risk of systemic illegality, a failure to consult, a breach of section 149 Equality Act 2010, and a breach of a duty of transparency was dismissed.

Key legal principles: (i) the full Code test (evidential limb) applies to all offences; (ii) the MBA is equivalent to the full Code test as explained in R (FB) v DPP; (iii) judicial review of prosecutorial guidance is available but where a change of language does not alter legal effect it is not necessarily unlawful; and (iv) a public authority's compliance with the public sector equality duty is assessed in context.

This is a judicial review brought by a campaigning organisation concerned at falling prosecution and charging rates in rape and serious sexual offences. The claimant challenged decisions by the Director of Public Prosecutions in 201617 affecting training and written guidance for RASSO (rape and serious sexual offences) prosecutors: the running of "RASSO roadshows", removal of the discrete "Merits Based Approach" guidance and excision of the phrase "merits-based approach" from CPS materials.

The procedural posture: the Divisional Court refused permission to bring judicial review ([2020] EWHC 929 (Admin)); the Court of Appeal granted permission to apply for judicial review on 30 July 2020 and retained the substantive claim, hearing it at first instance in the Court of Appeal.

The claimant advanced five grounds: (i) irrationality; (ii) risk of systemic illegality because prosecutors would apply a "bookmaker's approach" rather than the full Code test; (iii) failure to consult stakeholders and legitimate expectation of consultation; (iv) breach of the public sector equality duty (section 149 Equality Act 2010); and (v) breach of the DPP's duty of transparency to publish policies.

The court accepted the CPS evidence that senior leaders were legitimately concerned by Inspectorate findings and performance data showing falling conviction rates and that some prosecutors had misunderstood the MBA as a separate or lower test. The RASSO roadshows aimed to clarify that the full Code test applied and to correct perceived over-application of the MBA. The court refused to admit expert statistical reports as unnecessary to resolve the legal issues. On each ground the court found no legal error: the change of language did not alter legal substance; the decisions were not irrational; they did not create a real risk of systemic illegality; no legal duty to consult arose on the facts; the public sector equality duty had been met in context; and the transparency argument was inapplicable because the controlling public statement of law is the Code itself.

The court therefore dismissed the application for judicial review and accepted the essence of the Divisional Court's reasoning.

The application for judicial review is dismissed. The court reasoned that the DPP's actions (RASSO roadshows and excision of the discrete MBA guidance) did not change the legal test, were a legitimate response to Inspectorate findings and performance data, were not irrational, did not create a real risk of systemic illegality, did not require consultation in the circumstances, complied with the public sector equality duty in context, and did not breach any duty of transparency.

The Divisional Court refused permission to bring judicial review: R (End Violence Against Women Coalition) v DPP [2020] EWHC 929 (Admin). The claimant applied to the Court of Appeal for permission; the Court of Appeal granted permission to apply for judicial review and retained the substantive claim after an oral hearing on 30 July 2020. The Court of Appeal heard the substantive judicial review and dismissed the claim by judgment handed down 15 March 2021 ([2021] EWCA Civ 350).