GIR, R (on the application of) v Chief Constable of Thames Valley Police

In judicial review, a person is “directly affected” by a claim where the remedy would affect that person without the intervention of an intermediate agency. The question is assessed by reference to the remedy sought, not merely to the possibility of a later adverse outcome. A person may therefore be directly affected where quashing a decision would require a fresh reconsideration that places them under immediate practical and professional obligations. The conclusion remains fact-sensitive. The mere risk that a person may later be charged, following further investigative or prosecutorial decisions, does not generally constitute direct effect.

The claimant challenged Thames Valley Police’s decision to take no further action on her rape allegation and its decision not to seek early advice from the Crown Prosecution Service. The alleged suspect, ISL, applied to be joined as an interested party under CPR 54.1(2)(f), contending that the remedy sought would directly affect him. The claimant and the police opposed joinder, relying on the need for intermediate decisions by the police or CPS and contending that R (Watson) v Chief Constable of Greater Manchester Police was wrongly decided or distinguishable.

The issue was whether, on the particular facts, ISL was directly affected by the claim and its possible remedy.

1. Application granted. ISL was directly affected by the claim and was joined as an interested party. The court also continued the anonymity order concerning ISL.

2. Under CPR 54.1(2)(f), “directly affected” means affected by the claim without the intervention of an intermediate agency, and in the relevant sense affected simply by reason of the grant of the remedy. The assessment must be made by reference to the remedy sought. Mere inevitability or necessity of effect is insufficient.

3. The possible remedies were quashing the police decisions and remitting the matter for fresh decisions concerning the evidential question and early advice. The court accepted that the Victim’s Right of Review scheme required a fresh consideration of the case, rather than merely a review of the earlier decision. A successful challenge would therefore return ISL to a position in which he was again subject to the relevant process.

4. On the evidence accepted about ISL’s public-facing professional roles, he would be obliged to disclose that he was subject to a police investigation, interest, inquiry or status as a suspect when seeking relevant opportunities. That professional obligation made the effect of the remedy sufficiently direct, despite the absence of an automatic charge or compulsory referral to the CPS.

5. The decision in R (Watson) v Chief Constable of Greater Manchester Police was materially distinguishable because it concerned an immediate investigation. The court nevertheless expressed doubts about the generality of its reasoning. Being at risk of charge does not, by itself, make a person directly affected where further discretionary steps intervene. Those observations were unnecessary to the decision.

6. The court identified, but did not determine, wider questions concerning the participation of the subject of a prosecutorial decision in judicial review, including disclosure, candour, public interest arguments and possible abuse of process issues.