Clive Alexander Solly, R (on the application of) v Crown Prosecution Service

Paragraph 3.2 of the Code for Crown Prosecutors concerns coordination between prosecuting and investigating agencies. It does not ordinarily create an enforceable public law duty requiring the CPS to advise a private prosecutor about possible lines of enquiry, evidential requirements, procedures, disclosure or investigation strategy. Such advice arises where appropriate and where the prosecutor has something on which to base it. The provision does not prevent the CPS from refusing consent to a private prosecution where the proposed case is assessed as lacking evidential support. In those circumstances, the refusal is not unlawful, unreasonable or unfair merely because the CPS did not provide investigative assistance.

The claimant sought judicial review of a Deputy Chief Crown Prosecutor’s decision of 25 January 2023 not to proceed with the Director of Public Prosecutions’ consent to his proposed private prosecution for alleged offences under the Bribery Act 2010. Consent was required by section 10 of that Act. The decision, following earlier decisions of 17 November and 23 December 2022, concluded that the claimant had supplied insufficient admissible evidence.

Permission had been refused on the papers by Sir Duncan Ouseley. At the oral renewal hearing, the claimant argued that paragraph 3.2 of the Code for Crown Prosecutors imposed a duty on the CPS to advise him, as an investigator, about possible reasonable lines of enquiry. The central issue was whether the absence of such advice arguably rendered the CPS decisions unlawful.

1. Permission to apply for judicial review was refused. The court reached its own independent view on the oral renewal of the paper refusal, with particular caution because the claimant was acting in person and refusal of permission in a criminal cause or matter brought the judicial review proceedings to an end.

2. Paragraph 3.2 of the Code for Crown Prosecutors, issued under section 10 of the Prosecution of Offences Act 1985, is directed to coordination between prosecuting and investigating agencies as a matter of good practice. It addresses advice on possible reasonable lines of enquiry, evidential requirements, pre-charge procedures, disclosure management and overall investigation strategy.

3. The provision operates in the context that police and other investigators remain responsible for conducting enquiries and deciding how to deploy resources. Advice on possible reasonable lines of enquiry assists investigators to complete an investigation within a reasonable time and build the most effective prosecution case. It arises where appropriate and where the prosecutor has something to go on.

4. Paragraph 3.2 did not arguably impose an enforceable public law duty to advise a private prosecutor whose proposed bribery prosecution had been assessed as lacking evidential support. Nor did it require the CPS to provide advice on evidence, procedure, disclosure or strategy, or prevent it from refusing to proceed with DPP consent in those circumstances.

5. The court therefore found no realistic prospect that the January 2023 decision, or the earlier decisions, involved public law unlawfulness, unreasonableness or unfairness.

• High Court (Administrative Court): Permission for judicial review was refused on the papers by Sir Duncan Ouseley. On oral renewal, Mr Justice Fordham reconsidered permission afresh and refused it: [2023] EWHC 1542 (Admin).