Article by Katherine Higgins, pupil at 6 Kings Bench Walk.
When should the Crown Prosecution Service (CPS) be able to take over and put a stop to private prosecutions?
- The vast majority of private prosecutions are brought by the state. However in cases in which the state does not bring a prosecution section 6(1) of the Prosecution of Offences Act 1985 (the 1985 Act) allows for individuals to bring private prosecutions. There is a strong historical and constitutional basis in entitling ordinary members of the public to bring private criminal proceedings. With the right of access to justice at the heart of private prosecutions section 6(1) of the 1985 Act forms a historic safeguard against wrongful refusal or failure by public authorities to institute prosecution proceedings.
- The right of an individual is however somewhat tempered. Firstly in that the Attorney General has a long held power to end proceedings by entering a nolle prosequi and secondly by Section 6(2) of the 1985 Act which confers upon the DPP a power to take over a private prosecution for the purpose of discontinuing it. In determining whether or not to take over a prosecution the DPP has a clear policy in which he applies a certain criteria. The DPP's first criteria is based on the strength of evidence in support of the prosecution. Prior to 23rd June 2009, the strength of evidence criteria was based on whether there was no case for the defendant to answer. If the DPP concluded that on the basis of the evidence there was no case to answer he would take over the prosecution and discontinue it. However since June 2009, under the Code for Crown Prosecutors, the DPP has been required to consider 'whether there is sufficient evidence to provide a realistic prospect of conviction.' In short this may be described as the 'reasonable prospect' test and is the evidential threshold for all prosecutions bought by the state.
- This policy and the first set of criteria was the basis of an appeal to the Supreme Court. On 4th October 2012 Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson were asked to review the lawfulness of the DPP's current policy. Judgment was given on 14th November 2012.
- Dalvinder Singh Gurja, the appellant, launched a private prosecution in September 2010 against three men for allegedly assaulting, threatening and intimidating him. The following month, upon reviewing the material, the CPS decided that there was insufficient evidence to provide a realistic prospect of conviction and notified Mr Gujra's solicitors that they intended to take over and discontinue the prosecution. Mr Gujra applied to judicially review the CPS decision and it is that unsuccessful application to the High Court that was subsequently appealed to the Supreme Court.
Judgment of the High Court:
- In rejecting Mr Gujra's judicial review, the High Court found that (i) the CPS policy was lawful and (ii) the decision made in relation to his prosecution was rational. In addressing the 2009 policy, the court recognised but ultimately dismissed the view expressed by Laws LJ in R v Director of Public Prosecutions, ex p. Duckenfield  1WLR 55, a case concerning a private prosecution against two retired police constables connected to the Hillsborough football disaster. Laws LJ stated that applying the 'reasonable prospect' test when considering private prosecutions would emasculate section 6 (1) of the 1985 Act as "the very premise of section 6(1) must be that some cases will go to trial which the DPP himself chooses not to prosecute." The High Court disagreed and concluded that applying the 'reasonable prospect' test was lawful, as section 10(1) of the 1985 Act requires the Code for Crown Prosecutors to be applied to any case. The court further found that the CPS must be entitled to take a view on the prospect of conviction, regardless of who institutes proceedings.
Judgment of the Supreme Court:
- The five strong bench held, by a majority of 3 to 2 (Lord Mance and Lady Hale dissenting), that the new 'realistic prospect of conviction' threshold as set out in the CPS policy did not frustrate the constitutional importance of being able to bring private prosecutions and that this was a more relevant question than 'no case to answer'.
- Lord Wilson, who delivered the leading judgment, commented that the question as to whether an ordinary member of the public can bring a private prosecution was not the question the court were required to focus on in this case. He noted that whatever the debate as to constitutional importance of the right, the fact is, that, by section 6 of the 1985 Act Parliament chose, albeit in qualified terms, to re affirm the right of private prosecutions. He stated that the question the court must answer is whether, in applying the 'reasonable prospect' test, the DPP frustrates the policy and objects which underpin section 6 of the 1985 Act?
- In dismissing the appeal the majority were particularly persuaded by the need for consistency in conducting all prosecutions, no matter whether they are commenced by a private person or a public prosecution agency. They expressed clear concern that an inconsistent approach could lead to a defendant being subject to a private prosecution where there was no evidence giving rise to a realistic prospect of conviction and that this would provide him or her with legitimate grounds for grievance. The majority were also conscious that in applying the more stringent test it protected against the wasting of scarce court resources, which inevitably would lead to the undermining of public confidence. In confirming that private prosecutions have continued in spite of the change of policy in 2009 Lord Wilson highlighted illustrations of private prosecutions which are currently brought and therefore survive the current test. Furthermore Lord Wilson acknowledged what the DPP himself acknowledged, that by para 2.3 of the Code for Crown Prosecutors the DPP would act unlawfully if he were to adopt a rigid approach to the application of his policy in determining whether to institute proceedings and that any determination made by the DPP would be amendable to judicial review.
- In her strongly worded dissenting judgment, Lady Hale felt that the new policy emasculated the right of the private individual and left them at the mercy of the prosecuting authority. The possibility of judicially reviewing a decision was, for Lady Hale, unlikely and the new policy threatened rights under Article 3 and 8 of the ECHR.
- Therefore the current CPS policy on discontinuing prosecutions remains good law, but only just. The lengthy judgments given by all five judges demonstrate the difficult questions faced by the court. The one cohesive element that ran throughout every judgment however, was the respect each had for maintaining the right to bring private prosecutions. The problem lay in deciding how best this would be managed. The arguments put forward in favour of the current test were both practical and sensible. Applying this threshold does not eliminate private prosecutions; it simply promotes consistency and therefore fairness.
1.  EWHC 472 (Admin)
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