The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a prosecution.
Held: The appeal failed (Lord Mance and Lady Hale dissenting). There had indeed been a change in moving toward a test that a prosecution would be taken over and discontinued unless the prosecution was more likely than not to result in a conviction. The test was not whether a constitutional right had been infringed but whether the test properly reflected the statutory test as laid down in the 1985 Act. The statute had expressly preserved the DPP’s discretion in such matters and his right to intervene. The change to the ‘more likely than to to succeed’ wa a more relevant standard than that of ‘no case to answer’, and had been approved in the Royal Commission leading to the 1985 Act.
Lord Neuberger, President, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson
 3 WLR 1227, UKSC 2011/0115,  UKSC 52,  1 Cr App R 12,  1 All ER 612,  1 AC 484,,  WLR(D) 330
Bailii Summary, SC Summary, SC, Bailii, WLRD
Prosecution of Offences Act 1985 6(1) 692)
England and Wales
Appeal from – Gujra, Regina (on The Application of) v Crown Prosecution Service Admn 9-Mar-2011
The claimant sought judicial review of a decision of the respondent to take over and discontinue his private prosecutions arising from public order incidents, saying that the respondent’s policy was unlawful in restricting such prosecutions.
Cited – Regina v Director of Public Prosecutions ex parte Duckenfield etc Admn 31-Mar-1999
Private prosecutions had been brought against two retired police officers, D and M, in relation to the Hillsborough disaster; and the Director had refused a request by the officers to take over and discontinue those prosecutions, stating that his . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – Scopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
Cited – Jones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
Cited – B, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 27-Jan-2009
The claimant sought judicial review of the defendant’s decision to discontinue a prosecution, saying that the respondent had failed to consider his duties under the 1995 Act. The prosecution had been discontinued for the victim’s mental instability . .
Cited – Regina v Barker (Note) 1975
Lord Widgery CJ said: ‘It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been . .
Cited – Regina v Stafford Justices ex parte Customs and Excise Commissioners 1991
The court confirmed the continued right of private prosecution. Watkins LJ set out section 6 of the 1985 Act and observed: ‘These provisions clearly envisage that persons other than the Director may institute proceedings and prosecute. As Mr Lawson . .
Cited – X and Y v The Netherlands ECHR 26-Mar-1985
A parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested . .
Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
Cited – Raymond v Attorney General and Others CA 1982
The power under statute to take over the conduct of private prosecutions includes a power to discontinue those proceedings, to issue a nolle prosequi. The DPP is free to make decisions, even value judgments on his or her assessment of the public . .
Cited – Virgin Media Ltd, Regina (on The Application of) v Zinga CACD 24-Jan-2014
Zinga had been convicted of conspiracy to defraud in a private prosecution brought by Virgin Media. After dismissal of the appeal against conviction, Virgin pursued confiscation proceedings. Zinga appealed against refusal of its argument that it was . .
Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Williamson v The Attorney General of Trinidad and Tobago PC 3-Sep-2014
(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Constitutional
Updated: 01 November 2021; Ref: scu.465790