COL v Director of Public Prosecutions

Prosecutorial decisions are reviewable on conventional public-law grounds, but intervention is exceptional. The court must respect the prosecutor’s evaluative expertise and significant margin of discretion, while correcting clear errors of law or decisions unsupported by the evidence.

For fraud by abuse of position, an employer–employee relationship does not automatically exclude the operation of section 4(1)(a) of the Fraud Act 2006. The court must examine whether particular features create an objectively assessed expectation that the defendant will safeguard, or not act against, the complainant’s financial interests.

Visa and employment documents may provide evidence of deception directed at both immigration authorities and the worker. A decision-maker must assess the evidence against the statutory ingredients of the alleged offence.

The claimant, a Filipino national employed as a domestic worker, sought judicial review of the CPS decision not to prosecute her former employers. She alleged that she had been induced to come to the United Kingdom by promises about salary and working hours, which were not honoured, and that she was exploited.

The CPS considered possible offences under section 71 of the Coroners and Justice Act 2009, section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, and section 4 of the Fraud Act 2006. The claimant challenged the decision on the grounds that the CPS had misdirected itself on section 4 of the 2006 Act and had irrationally assessed the evidence concerning deception and credibility.

1. Outcome. The claim succeeded and the CPS decision dated 28 May 2021 was quashed.
2. Decisions not to prosecute are amenable to judicial review, but the court intervenes only on conventional public-law grounds. A prosecutor has a significant margin of discretion, particularly when assessing disputed evidence and the likely outcome of a criminal trial. Decision letters must be read broadly and sensibly. The court must not substitute its own view, but may intervene where the decision is irrational or legally misconceived.
3. The CPS treated the employer–employee relationship as conclusive against section 4(1)(a) of the Fraud Act 2006. That was a misdirection. Under R v Valujevs and Mezals, the question is whether the particular position objectively gives rise to an expectation that the defendant will safeguard, or not act against, the complainant’s financial interests. Employment is relevant but is not necessarily decisive.
4. The CPS failed to consider relevant features of the relationship, including the claimant’s vulnerability as a migrant domestic worker, her dependence on the employers under the Tier 5 visa system, the provision of accommodation, and the potential significance of the sponsor’s position. Those matters were capable of taking the relationship outside the ordinary commercial sphere and engaging section 4(1)(a). The CPS therefore ended its assessment before considering the other elements of the offence.
5. The CPS also misdirected itself under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The Certificate of Sponsorship and associated employment documentation, which the claimant was required to sign, were capable of evidencing deception directed at the claimant as well as the UK authorities.
6. The alleged inconsistencies in the claimant’s accounts were largely minor, contextual, or not genuine contradictions. The reasoning did not justify the conclusion that there was no realistic prospect of conviction. The decision was therefore not reasonably open to the CPS and infringed Wednesbury principles.
7. The court did not determine whether an enhanced or anxious standard of scrutiny applied in the context of Article 4 of the ECHR. The decision was unlawful applying ordinary public-law principles.

The judgment records that an earlier CPS decision was quashed by the Divisional Court in R (on the application of L) v DPP [2020] EWHC 1815 (Admin). A later decision was withdrawn after permission for judicial review was granted. The present claim concerned the CPS decision of 28 May 2021.