Dean Francis v Director Public Prosecutions

Judicial review of a decision to offer no evidence may be sought without first exhausting the Victims’ Right to Review scheme where that review would occur only after the prosecution had irreversibly ended. However, the claimant must still show a properly arguable ground of challenge.

Where the CPS has considered the dangerous-driving charge on both deliberate and non-deliberate bases, and the evidence shows that the defendant reacted reasonably to an unexpected hazard, the decision that there is no realistic prospect of conviction may be unchallengeable. A Divisional Court decision on the lawfulness of the VRR scheme provides a powerful reason for a single High Court judge to follow it.

The claimant was seriously injured when a serving police officer’s vehicle struck him during an operation to stop a minicab. The CPS had charged the officer with inflicting grievous bodily harm and causing serious injury by dangerous driving, but later decided to offer no evidence after further expert evidence supported the officer’s account that he had swerved to avoid the claimant.

The claimant sought judicial review and an interim injunction preventing the CPS from communicating that decision to the Crown Court. He argued that the CPS had failed properly to consider the dangerous-driving charge and that a VRR review was ineffective because it would occur only after the prosecution had ended. The issue was whether there was a real issue to be tried and, if so, where the balance of the risk of injustice lay.

1. Interim-relief test. The application was governed by the familiar two-stage test: whether there was a real issue to be tried and, if so, which course carried the lower risk of injustice.
2. Access to judicial review. The claimant was not barred in principle from seeking judicial review of the decision to offer no evidence before the VRR review. L concerned decisions not to prosecute and did not establish that a VRR review was a suitable alternative remedy where it could not restore the prosecution. The right to seek judicial review extended to a decision to stop a prosecution.
3. No arguable challenge to the CPS decision. The evidence showed that the CPS had considered whether the dangerous-driving charge could proceed on a non-deliberate basis. The three experts agreed that the officer had reacted within a split second to avoid the claimant and had no reasonable time for a further manoeuvre. In those circumstances, it was impossible to see how a jury could find that the driving fell far below the standard of a competent and careful driver or that its danger would have been obvious. The proposed error-of-law, irrelevant-consideration, error-of-fact and inadequate-enquiry grounds therefore disclosed no real issue to be tried.
4. VRR timing. Hayes authoritatively determined that the VRR policy could lawfully operate so that a review of an offer-no-evidence decision occurred only after the proceedings had ended. The policy was not distinguishable on the facts and no exception was required.
5. Balance of risk. Although the risks were finely balanced, maintaining the injunction would have carried the lower risk of injustice if there had been an arguable challenge to the decision to offer no evidence. By contrast, if the only arguable issue concerned VRR timing, discharge would have carried the lower risk because the prospect of a review restoring the prosecution was speculative.

The interim injunction was discharged.