X v Y

This was a renewed application for permission to apply for judicial review of the decision of the Defendant to continue with a prosecution against the Claimant. We granted permission and heard the substantive application. The subject matter of the case is highly sensitive and therefore this judgment which is to be given in public will contain no detail which might lead to the identification of the Claimant. This is the judgment of the court.

X is a Defendant in a trial which will be heard in the Crown Court later this year. The allegations are of serious crime likely to attract a significant prison sentence for any Defendant who is convicted. There are a number of co-Defendants. X is also a registered informant but is not a participating informant in relation to the matters with which the trial is concerned.

In the course of the proceedings, the trial judge, for good reasons which we do not set out here, ordered that the fact that X is a registered informant and some, but not all, of X’s activity in that capacity should be disclosed to the other Defendants. In the light of that order and after receiving submissions from those who represent X, Y has decided to proceed with the trial.

A letter from the case lawyer setting out the reasons for the decision shows that the Defendant had in mind, among other things, the decision of this court in D v Central Criminal Court [2004] 1 Cr App R 41. The facts of that case were similar to the present. The issues of principle were identical.

Scot Baker LJ stressed, in his judgment, that the decision of the judge to order disclosure is not susceptible of judicial review. However, the decision of HM Customs and Excise to continue the prosecution is. Because the issues in that case were so similar to the present and because we respectfully agree with the reasoning in its entirety, it is worth quoting extensively from Scott Baker LJ’s judgment.

He reviewed the written reasons of the decision maker for the prosecution and said this:

“The critical passage, in my judgment, is that he satisfied himself that measures can be taken that will provide protection for the defendant (or claimant as he is in the present proceedings) and his family. There can of course be no absolute protection for the claimant or his family or, indeed, for any other member of the public in respect of whom a risk is identified. What is clear is that Mr McGill was satisfied that adequate protection could be provided. He concluded that any remaining risk was outweighed by the public interest in proceeding with the prosecution.
19 The prosecutor has a continuing duty to keep the future of the prosecution under review. It is possible, albeit perhaps unlikely, that circumstances could change so that adequate protection could for some reason not be provided. The prosecutor would then have to reconsider the position. The issue in this case has been as to the extent of the prosecutor's obligation to take the risk to the claimant and his family into account. But, in the end, there is really no difference between Mr Nicholas Blake Q.C., who has appeared for the claimant, and Mr Barnard, who has appeared for the Defendant.
20 Both Arts.2 and 3 of the European Convention of Human Rights and Fundamental Freedoms are in play. Art.2.1 provides:
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law."
Art.3:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Both Articles are relevant because the claimant and his family are at risk of death, or of reprisals involving serious injury short of death.
21 It was common ground that Articles 2 and 3 each placed both positive and negative obligations upon the State. Thus, for example, in a positive obligation case, the citizen need only show that the State has not done all that could reasonably be expected of it to avoid a real and imminent threat to life: Osman v United Kingdom (1999) 29 E.H.R.R. 245. But the present case is one in which the State's negative obligations arise as well. By continuing with the prosecution it is said that the claimant will be exposed to a real risk of harm, and it is said that whatever his conduct may have been that gives rise to this risk is irrelevant (see Chahal, to which I shall refer in more detail in a moment).
22 Thus the negative obligation is of a more absolute nature than the positive obligation. But, in my judgment, it is necessary to define accurately the nature of the negative obligation in this case. It is not simply not to prosecute the claimant because of the risk to life et cetera, rather it is not to prosecute unless the prosecutor is satisfied that the risk can be adequately met. Of this, the prosecutor was satisfied.”

Scott Baker LJ then considered the duty of the prosecutor and the issue for the court in reviewing his decision:

“26 What is the obligation of the prosecutor? In my judgment, it is to be aware that proceeding with the trial is going to create a significant risk, or increased risk to life or limb of the defendant and his family. He should then ask himself what measures can be taken to minimise that risk. In this case that involved obtaining the necessary information from NCIS and the Prison Service. That he has done. Once satisfied that an adequate level of protection could be provided, his obligation is met. It is not the prosecutor's duty but the duty of others to implement the appropriate measures. Mr McGill, in my judgment, did what was required of him in the present case.”

“29 The issue in the end comes down to whether the decision-maker has acted lawfully. In my judgment, he has because he was aware of the risk and satisfied himself that steps could be taken by others to meet it. Should the appropriate steps not be taken, then those who fail to take them might themselves be open to judicial review; but that is, if ever, for another day.”

Mindful of their obligations under Arts 2 and 3 as interpreted by D v Central Criminal Court, the prosecuting authorities have carried out a risk assessment both in respect of X and also in respect of X’s family. We have seen those risk assessments. They have considered not only the direct risk involved in letting the Co-Defendants know X’s status but also the indirect risk of others drawing conclusions from what is disclosed about what is not disclosed.

The final risk assessment was conducted by the Witness Protection Unit of the National Crime Squad. For the purposes of this judgment, the summary of it must be brief. It concludes that in all respects save one, the risk is low. If one fact is disclosed as part of the disclosure exercise, the risk is high. If that fact is not disclosed, that risk reduces to medium or medium to low. Disclosure of that fact has not been ordered. Overall, the conclusion is that ‘There are no Art.2 issues which cannot be met by implementation of witness protection measures.’

The written reasons for the decision indicate that the prosecutor has considered, as he must, the risk to X as a central part of his obligation in taking the decision to continue the prosecution. His good faith is not, in any way, impugned. It is also accepted that the person taking the decision on behalf of the Defendant is the appropriate person to take the decision and indeed the only person with sufficient seniority and knowledge of the case to do so.

His decision is challenged by Mr Michael Supperstone QC on the grounds that the risk assessment upon which he relied was flawed in that it did not take account of two matters of which it should have taken account. Those two matters both relate to the area of potential high risk. Mr Supperstone does not contend that the only proper decision is to discontinue the proceedings. He submits, and we agree, that X is entitled to a properly informed decision, whichever way it goes. The order he seeks is that the existing decision to continue with the prosecution be quashed and that the Defendant be directed to re-consider it.

Mr Hugo Keith, for the Defendant, concedes that the risk assessment should have taken account of those two matters but argues that, since the decision–maker had knowledge of them, his decision cannot be impugned. He accepts, however, that they were not consciously taken into account. The decision letter does not refer to those two matters.

Mr Keith has asked the court, if it finds a justiciable flaw in the decision-making process, not to grant X any relief because a fresh risk assessment, made yesterday and tendered to the court today, has evaluated the additional risk suggested by the omitted material as inconsequential. We limit ourselves to saying that such material cannot pre-empt either this court's decision or determine that of the decision-maker. It will need to be considered, for what he judges it to be worth, by the decision-maker.

In our judgment it is not sufficient that the decision-maker was aware of the material factors. His obligation was to evaluate them and to take them into account, so evaluated, in reaching his decision. He might have been able to do this had they formed part of the risk assessment, but the author of the risk assessment did not know about them.

These are the essential reasons why at the conclusion of argument we made an order quashing the decision to continue the criminal proceedings against X. Its effect is that the decision must be retaken with due regard to the matters we drew attention to at the conclusion of the hearing.