The applicants sought judicial review of the decision of the Director not to prosecute anybody after the death of their brother in prison custody, and while under restraint by prison officers. The jury at a coroner’s inquest had returned a verdict of unlawful killing. A specialist senior caseworker in the CPS subsequently took a decision not to prosecute any of the officers of any offence arising out of the death, in particular unlawful act manslaughter, on the basis that he was not satisfied that the available evidence would provide a realistic prospect of conviction.
Held: The Director of Public Prosecutions is answerable to the Attorney General and to no one else. While the power of judicial review is to be sparingly exercised, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.
Lord Bingham of Cornhill LCJ said: ‘Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review . . But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.’
Lord Bingham of Cornhill LCJ, Morison J
[2000] EWHC Admin 342, [2001] 1 QB 330, [2000] Inquest LR 133, [2000] Po LR 172, [2001] HRLR 3, [2000] 3 WLR 463, [2000] EWHC 562 (QB), [2001] QB 330
Bailii, Bailii
England and Wales
Citing:
Cited – Regina v Director of Public Prosecutions, ex parte C QBD 1995
The plaintiff sought judicial review of the DPP’s decision not to prosecute a husband suspected of buggery.
Held: The application succeeded. The Respondent had failed to consider the criteria required by the Code. However, the power to review . .
Cited by:
Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
Cited – Bryant and Others, Regina (on The Application of) v The Commissioner of Police of The Metropolis Admn 23-May-2011
Several claimants sought leave to bring judicial review of decisions taken by the defendant in the investigation of suggestions that their telephone answering systems had been intercepted by people working for the News of the World. They said that . .
Cited – Da Silva, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 14-Dec-2006
An innocent bystander had been shot dead by police mistaking him for a suicide bomber. The claimant, a cousin, challenged decisions not to prosecute any officer for murder or manslaughter or any other criminal offence.
Held: Review was . .
Cited – NXB v Crown Prosecution Service QBD 12-Mar-2015
The claimant, saying that she had been abused as a child by another, sought damages alleging breach of her human rights after the defendant failed to prosecute her attacker: ‘it is the Claimant’s case that the CPS made a series of rushed, . .
Cited – F, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 24-Apr-2013
Application for judicial review of the refusal of the Director of Public Prosecutions to initiate a prosecution for rape and/or sexual assault of the claimant by her former partner. The claimant said that she had initially consented to sex with her . .
Cited – Loughlin, Re Application for Judicial Review SC 18-Oct-2017
The court was asked as to the circumstances in which sentences passed on offenders who have given assistance to prosecuting authorities should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act . .
Lists of cited by and citing cases may be incomplete.
Crime, Constitutional, Police, Judicial Review
Leading Case
Updated: 31 October 2021; Ref: scu.135939