L v Director of Public Prosecutions & Ors

SIR JOHN THOMAS: There are before us two renewed applications for judicial review in each of which the claimants challenge the decision of the Crown Prosecution Service not to prosecute. In one of them, the Commissioner of Police for the Metropolis is also a party. The court certifies that this decision is one which may be cited as authoritative.

The applicable principles

The law is very clear as to challenges to decisions of the Crown Prosecution Service. It is set out in a decision of this court in the R v DPP ex parte C 1995 1 Cr App R 136 at pages 140-141.

It is not necessary to restate the law, bearing in mind that these are renewed applications. But it was made clear in that case by Kennedy LJ that the grounds upon which challenge can be made are very narrow: (1) because there has been some unlawful policy; (2) because the Director has failed to act in accordance with his own set policy; or (3) because the decision was perverse; that is to say it is a decision that no reasonable prosecutor could have reached.

In subsequent decisions, including Sharma v Brown-Antoine [2007] 1 WLR 780 being against DPP ex parte R v Inland Revenue Commissioner ex parte Mead [1993] 1 AER 772 in Kostuch v Attorney-General for Alberta [1995] 128 DLR 440, and in R(Pepushi) v Crown Prosecution Service [2004] IMAR 549 and R(Birmingham) v Director of the Serious Fraud Office [2007] 2 WLR 635, the courts have indicated that these applications will succeed only in very rare cases.

That is for the good and sound constitutional reason that decisions to prosecute are entrusted under our constitution to the prosecuting authorities, in this case the Director of Public Prosecutions and those who work under him in the Crown Prosecution Service.

It is very important that the constitutional position of the Crown Prosecution Service as an independent decision maker is respected and recognised. The courts have therefore adopted this very strict self denying ordinance. They will, of course, put right cases where an unlawful policy has been adopted or where there has been a failure to follow policy, or where the decisions are perverse. But each of those is likely to arise only in exceptionally rare circumstances and that must be born in mind.

What is also important these days is that the Crown Prosecution Service has been moving to a new policy. As a result of a decision of the Court of Appeal Criminal Division Killick [2011] EWCA Crim 1608, the Crown Prosecution Service has been looking at new processes for reviewing decisions of prosecutors not to proceed. As we understand it, the final version of that process will be published shortly.

The two cases before us illustrate the way in which the new process is likely to work. In each of them a judicial review was commenced. After the commencement of the judicial review, in one case on the CPS's own initiative, and the other at the suggestion of the court, the decision not to prosecute was reviewed by a more senior prosecutor. In the one case, the review was an exceptionally detailed document to which I shall refer in due course. In the other, it is in a short email.

It must, of course, be for the Crown Prosecution Service to decide upon the type of review of the decision that is made. Some cases will call for very detailed review; others can be dealt with in short order. What is important to the future conduct of such cases is to recognise that the CPS now has this procedure in place. It has this consequence. It is highly likely that where a review has taken place, and the review can be seen to be careful and thorough, proceedings for judicial review to challenge the decision will be the more difficult to advance. That is because the CPS will have independently reconsidered the position and, unless it can be shown that that decision is within one of the three categories I have mentioned, it will therefore be the more difficult to show that the decision is one that can be successfully challenged.

It is, I think, important in the light of this new procedure also to point out the following.

First, no judicial review should be brought until the CPS has had an opportunity of conducting a further review under their Victim right of review procedure. In the ordinary case, if a challenge is to be brought before that right of review has been taken up, a court should not entertain it.

Second, if there has been a review in accordance with this procedure, then, it seems to me, that the prospect of success will, as I have said, be very small.

There may, of course, be cases where the right of review has not been taken up. In such a case, it seems to me that in the acknowledgement of service, the CPS should set out its position. They may wish to say: yes, we would like to offer a review, or they may consider that what they have done so far is sufficient. It seems to me, in those circumstances, that the papers should pass to the single judge who can, if the CPS wishes to undertake a review, then adjourn the matter pending that review. If, of course, the CPS does not wish to conduct a review on the basis they have reviewed it sufficiently, then the judge will make his decision on the basis of the papers.

If a review has taken place after the launch of judicial review proceedings, then of course, if the applicant is content, that is the end of the matter. If he is not content, then it seems to me that, in those circumstances, the parties must apply to the judge for appropriate directions. Those would include, first of all, an amendment to the original application to ensure that the challenge to the further review is properly before the court. Secondly, that new grounds should be served indicating why it is said that the review fails in one of the three respects I have set out. And, thirdly, for directions for the CPS to respond. All of that should be done before the judge considers permission. The judge will then, when he has those documents, be able to decide on whether permission should be granted.

I would hope that hereafter these applications should be rare. The right of review is an important development put forward by the Director. As has been made clear, in cases for the future, the CPS may well take the view that it will seek costs against persons who, having had the benefit of such a review, or who have come to this court without seeking such a review.

It must be recalled that the likelihood of success in such cases will be very very small, given the constitutional position of the CPS.

I am not saying that there will not be such a case, but the chances of a claimant succeeding in them, given the new procedure adopted by the Director of Public Prosecutions, are likely to be small. There is no reason why in cases where a challenge has been brought inappropriately hereafter, the CPS should not be entitled to seek the costs from a person who is not successful in a challenge made. These cases consume very considerable resources from the CPS and it cannot be right that people should feel that they can have what is in effect a "free ride" in this court in the light of what the CPS have done. Against those observations I turn to look at the facts of these two quite different cases.

L v DPP

The first is the claimant "L". It is brought by the grandparent of a very young child. The child was born on 6 March 2007 and his father is the claimant's son. By the time of the events to which I will shortly refer, the parents were separated but had done so on amicable terms; both the grandparents and parents of the child saw him and his brother from time to time.

The child was not a well child. From the age of about 4 months, he suffered from Dravet's Syndrome, a severe form of epilepsy. He had frequent episodes, including episodes of falling to the ground unconscious. He attended a community school from September 2010.

In October 2010, his mother, who was then 28, began a relationship with a much younger man, Cameron Rose, who was then 16. He had had a disturbed behavioural past. That relationship was kept secret to the mother, Cameron Rose and two of their mutual friends who had introduced them. The incidents which gave rise to the death of the child thereafter occurred.

On 14 December 2010 staff at the school noted that the child had injuries to his face. On 17 January 2011, he was taken to hospital with injuries. An explanation was given by his mother that this had occurred in the course of one his episodes. He did not go to school after that. On 21 January 2011, an ambulance was called to the home of the mother. It was found that the child was severely injured. An explanation was given that he had had a fit and fallen. He was taken to hospital. Although resuscitation attempts were made, he was shortly pronounced dead.

An extensive series of autopsies and other tests were made. The child was found to have 39 separate injuries, including extensive bruising to his face and ears, a broken leg, and severe brain injuries. He had a subdural haemorrhage.

Professor Risden, who conducted the post mortem, concluded that the child had received a significant impact head injury, and that that had been the cause of his death. There were extensive expert reports from a number of other experts in this field of child injury.

On 26 January 2011, his mother was arrested. She gave an explanation that he had fallen from the counter and been injured. When interviewed, she then spoke of her relationship with Cameron Rose, and explained his role. Rose was then arrested and interviewed.

The grandfather, the claimant in this case, has taken an extensive interest in what should have happened thereafter. He expressed concerns as early as February 2011 as to the way in which the investigation was proceeding, and brought those matters to the attention of the authorities.

In September 2011, both the mother and Cameron Rose were re-arrested, interviewed, and further enquires and evidence assembled. On 13 December 2011, the District Crown Prosecutor was asked for advice by the police. He consulted Ms Sally Howes QC and eventually advice was given and a conference held in February 2012. As a result, the District Crown Prosecutor decided to charge Cameron Rose with assault occasioning actual bodily harm in relation to the incidents on 14 December and 17 January; and to murder, and causing grievous bodily harm with intent, in respect of the death that occurred as a result of injuries sustained on 21 January.

It was decided that there was no evidence to show that the mother had contributed to the death of the child, and no evidence that she had shown neglect. It was decided that there was evidence against her in respect of perverting the course of justice; a decision was made formally to caution her and the two friends for perverting the course of justice. More questions were raised by the claimant but that decision was adhered to.

On 23 April 2012, prior to the trial of Cameron Rose, a judicial review of the decision not to prosecute the mother was brought by the claimant. It was adjourned to enable the claimant to get legal representation. Thereafter, in September 2012, Cameron Rose stood trial at the Old Bailey. He was found guilty of manslaughter. The mother gave evidence against him. His defence in relation to the incident on 17 January 2011, which he admitted, was that it was an accident; on 21 January 2011, the injury occurred when he had been in charge of him, but he had not harmed him. Harm had been inflicted earlier in the day.

Although he had accepted being present on 17 January and 21 January, he did not accept he was present when injury occurred on 14 December. The Crown, in respect of that incident, relied on the evidence of the mother. It is important to note the jury acquitted him in respect of that offence.

After that trial, and while the hearing of this judicial review was pending, an extensive review was carried out by Ms Alison Levitt QC, Principal Legal Adviser to the Director of Public Prosecutions, together with her legal assistant, Tom Emerson. In my judgment, the document produced by Ms Levitt is a model of its kind. It is exceptionally detailed, very thorough, and sets out in a dispassionate and careful manner, a summary of the evidence in relation to the case against Cameron Rose, and to the case against the mother.

It is to be commended for the fact that the review is, in parts, critical of the District Crown Prosecutor's decision and his conduct. It is, as I shall mention in a moment, compelling for the reasons that it gives in relation to establishing why, at this point in time, the decision of the CPS not to prosecute is one that is entirely in accordance with the CPS’s policy, and cannot, in the remotest sense, be considered perverse.

There are four groups of charges which the advice considers in some detail. The first is whether there is a case of murder or assault against the mother in respect of any of the three incidents. It concludes that there is no evidence. Unfortunately, the brother of the child was not able to give any account of what had happened; so the only evidence against her is the evidence that was given by Cameron Rose at the trial.

It is said by the claimant, in submissions to which we pay tribute, and which he has made before us clearly and in a dispassionate manner, to this effect.

He says that, in effect, the mother, being the more powerful personality -- and some 12 years older than Cameron Rose -- took the position that Cameron Rose should be made to carry the responsibility for what had happened, on the basis that he would have a light sentence. Although that is the way in which the claimant puts the case, there is before this court -- and there was before Ms Levitt and Mr Emerson -- no evidence at all that would support that contention. In the absence of such evidence of a case that could be put in that way, there is no evidence at all that can sustain any case of murder or assault against the mother.

The second offence is one under section 5 of causing or allowing the death of the child. For very similar reasons, set out in extensive and exhaustive detail, both as a matter of evidence and legal analysis, Ms Levitt and Mr Emerson came to the view that there was no evidence to sustain such a charge.

The third group of charges relates to child cruelty. The review of Ms Levitt and Mr Emerson concluded that there was sufficient evidence, and the Crown Prosecution Service had been wrong in the decision that it had made, and to which I have referred.

As to perverting the course of justice, the fourth charge, the review agreed with the decision of the prosecutor, that there was sufficient evidence for a charge to be brought. However, in respect of the third and fourth matters, namely the child cruelty and perverting the course of justice, Ms Levitt concluded that, at this point in time, that there could be no public interest in bringing the case. That was because the mother had given evidence at the trial at the Old Bailey against Cameron Rose, on an understanding that the caution she received would be all that she would suffer, apart from the appalling memories that she must have about the death of her own child.

Looking at the matter, therefore, after the trial of Cameron Rose, and looking at it, therefore, as it stands today, which is the relevant time, there can be no basis for criticising the decision that has been made on public interest grounds by Ms Levitt and Mr Emerson. It is right to add that the decision made by the District Prosecutor, both in respect of child cruelty and perverting the course of justice, might well have been different had a review taken place at a much earlier stage.

There were arguments for saying that the District Crown Prosecutor took the right decision in respect of the public interest, because he needed the evidence of the mother against Cameron Rose, and that he might have been right to only administer a caution. But there were very powerful arguments the other way, which a review at an earlier state might have meant that a prosecution could have taken place.

I put that in those terms because it would not be appropriate for us at this stage to take a view. I simply do so because it is clear from Ms Levitt and Mr Emerson's report that they considered the decision that the District Crown Prosecutor had to make was a very difficult one, and that there were arguments both ways.

As it is of the essence of the decisions to prosecute that there is a significant margin of discretion given to the prosecutor, it can be well understood why two prosecutors might differ. That, therefore, underlines the great importance and essential contribution that the Director has made by putting in place this system of review. In circumstances such as that pertaining to difficult decisions on the public interest, it is right and proper that there should be is review of what are very difficult decisions. But I say that by way of underlining the importance of the new procedure for review that is in place, and also as an encouragement for those to use that procedure, rather than resort to this court, because decisions can be made so much more quickly, so much more easily and, above all, in conformity with the proper apportionment of powers under our constitution.

I, therefore, have come to the view, and if my Lord agrees, the claim by the claimant must fail. I would, however, like to say this. First of all, there could have been no greater care and attention given to the difficult decisions in this case than that given by Ms Levitt and Mr Emerson. They have looked at it in a manner that entirely satisfies me. No stone has been left unturned, on the evidence available to them.

Secondly, I would like to commend the way in which the matter has been put before this court by the claimant, who obviously feels very strongly that a miscarriage of justice has occurred. He has worked hard and with great dignity in his pursuit of justice. But it seems to me, on an analysis of the law, and of the evidence that is before the court, although he has done everything possible, there are insuperable obstacles in the way of a successful prosecution not being brought, at least on the evidence there has been so far produced.

Mr Pratt v CPS

I turn, therefore, to the second case before us: that relating to Mr Pratt. This is, in essence, a much simpler case and is an illustration of how a view can be taken in very short order. The facts are briefly these:

On 1 December 2010, the claimant, Kevin Pratt, as is evident from what we have seen in the video camera footage, was assaulted outside a Costcutter store in Sutton. That assault occurred as part of a series of events, much of which we have seen on the CCTV record that has been played to us, where the conduct of Mr Pratt can only be described as thoroughly offensive. As is evident from the CCTV photographs, he attacked the Costcutter shop in Sutton.

As a result of looking at the CCTV, and as a result of a statement taken from the shopkeeper, a Mr Amir, Mr Pratt was charged on 12 January 2011 with using abusive words and behaviour contrary to section 4 of the Public Order Act and of criminal damage to shutter of Mr Amir's shop. He was bailed.

On 18 April 2011, Mr Pratt went again to the Costcutter in breach of that bail. As a result of what occurred on that occasion, he was charged with further offences: aggravated racial assault, criminal damage and assault on police officers.

These two matters came to trial on 5 October 2011. Mr Pratt was acquitted of the charges against him in respect of what had happened on 1 December. He pleaded guilty to some of the offences that had occurred on 18 April 2011, but was found not guilty of the racially aggravated offence under section 4. On the evidence of what we have seen on the CCTV, he might be thought to have been fortunate in respect of the acquittal of some of the charges made against him.

What then happened was that Mr Pratt sought to have Mr Amir prosecuted. The basis of that complaint was that he had been attacked by someone described as an Iranian. It is clear from the CCTV evidence that in the course of the incident concerned, the person described to us as an Iranian obtained a hammer, and when a punch was thrown at him by Mr Pratt, took the hammer out and chased Mr Pratt across the road and inflicted an injury on him. After that injury had been inflicted, the hammer was slid back across the icy road and it was picked up by Mr Amir, the shopkeeper. The incident then continued for some time, but it is not necessary to set out the detail of that. Suffice to say that Mr Pratt is not shown in a good light.

The case that is sought to be made by Mr Pratt is that Mr Amir should have been prosecuted, because he was a secondary party to the assault with the hammer by the Iranian person. The evidence for that is said to be the following: the CCTV, the statement of Mr Amir and the account given by the CPS in their decision not to prosecute. It is said that if one looks at the statement of Mr Amir, it can be seen that Mr Amir had not mentioned the hammer incident at all. If one looks at the account in the letter written by the CPS on their decision not to prosecute, it is plain they accepted that a hammer was used, and one can infer from the CCTV evidence that Mr Amir, the shopkeeper, was a participant in what happened.

After the complaint had been made that Mr Amir should have been prosecuted, it was considered on 8 December 2011 by a member of the prosecution team. The reasons for the decision are not set out in a separate document, but are referred to in a letter dated 21 February 2012, to which I shall refer to in a moment. The decision was that no prosecution should be brought. Therefore, on 8 March 2012, Mr Pratt made an application for judicial review. This came before the single judge who suggested that the matter be adjourned, pending the CPS looking again at the evidence. They did so.

On 11 July 2012, in a very short email, the Borough Crown Prosecutor, Ms Tang, said this:

She then refers to the letter that she had written on 21 February 2012. In that letter, she had made quite clear that there was no evidence against Mr Amir to suggest that he was involved in the actual assault.

Quite exceptionally for this court, we have looked at the CCTV. We have done so because Mr Birch on behalf of Mr Pratt has put forward the allegation that the decision of the Crown Prosecutor was perverse. We think that argument is wholly unsustainable.

First of all, it is clear from the interview that Mr Pratt could not have given any useful evidence in respect of a charge against Mr Amir. In fact, having seen the entire video, we doubt whether any jury would have believed anything he would have said about it. His conduct, as shown on the video, is one of someone who was plainly behaving in an exceptionally disagreeable manner. The violence exhibited by him on that video, not only against people, but against premises, is plain for all to see. He would not have been a credible witness. Therefore, the Crown Prosecution Service was left with the other three matters to which Mr Birch has referred.

I hope I have said sufficient about the CCTV evidence to demonstrate that it shows Mr Pratt in a most disagreeable light. But with regard to the question in relation to Mr Amir's participation, there is nothing on the CCTV to show that he was a person who was there for any other purpose than as a bystander. There was no evidence that he supplied the hammer. There is no evidence that he encouraged the attack. The only evidence is that when the hammer was slid back, he picked it up. I cannot for myself see how that can be evidence against him of participation in the assault by the Iranian, nor do I think that the fact that the statement made by him did not mention the hammer can be. It was plainly a thoroughly unpleasant incident that he described in his statement, and the fact he had omitted to deal with the hammer must have become apparent when the CCTV was reviewed. To suggest that he would be regarded as a witness of untruth on the basis of that is, with all respect to Mr Birch, entirely fanciful.

As regards what is said by the Borough Crown Prosecutor in her letter of 12 February, what is said there is entirely correct.

In my view, in the circumstances of this case, the decision of the CPS not to prosecute Mr Amir for inflicting grievous bodily harm with the hammer is a decision that cannot possibly be described as perverse. It was the right decision on the evidence, and the claim that it was perverse is a claim that is totally without merit.

In the renewed application, it was also suggested that Mr Amir should be charged with perverting the course of justice. As I understand it, it is suggested that the basis of such a charge should be that he had withheld the identity the Iranian man, that he had given two versions of the events, and that he had not told the police initially about the hammer.

In my view, again with respect to Mr Birch, these are submissions that are without merit. It is common experience that people do not necessarily remember everything on the first occasion. The fact that people do give two completely different versions of events is not uncommon in criminal trials. If people were to be prosecuted for giving different versions of events, the crown courts would be full of cases.

Conspiracy to pervert the course of justice is a very serious offence. There is not the remotest suggestion that the evidence comes anywhere near that.

Furthermore, as to the withholding of the identity of the Iranian, there is no evidence to suggest that Mr Amir did so. Although he is not named, there is no evidence to suggest that the police ever asked Mr Amir his name.

In my view therefore, this renewed application is one that should not have been made. The decision of the prosecutor in her review of the matter on 11 July 2012 was a proper and proportionate answer. It fulfilled the new guidelines given by the Director of Public Prosecutions, and that decision having been taken, it seems to me that this is a claim that should have been immediately discontinued. For those reasons therefore, I would, for my part, dismiss this renewed application.

MR JUSTICE SIMON: I agree.

MR EDIS: My Lord, may I say something about the ability of persons to rely upon the judgment as authoritative. It is obviously permission applications that which is not normally something on which any authoritative weight can be placed. But in the circumstances of this case -- I am not talking about the decision on the facts of the original cases. But the guidance that the court has given in relation to how these cases might usefully be approached in the future, now that this review procedure is in place, will be of great value, I have no doubt, to single judges and also to those advising the Crown Prosecution Service and those advising those who wish to bring this kind of claim.

SIR JOHN THOMAS: We will so certify.

MR EDIS: Thank you my Lord. Secondly, can I invite you consider that in the case of "L", you direct that the claim should be amended so that it refers to the challenge to the new decision.

SIR JOHN THOMAS: Yes.

MR EDIS: Thank you. And lastly, I say this, I think it unlikely in any circumstances, although I am not giving any promise, that we would have applied for costs for "L". But I can certainly say that in the new dispensation which will follow the formal implementation of the review scheme, we would certainly have applied for costs against Mr Pratt. But in view of the approach taken currently to these cases, despite the circumstances of this one, I do not make an application.

SIR JOHN THOMAS: Thank you very much.

MR GOULD: My Lord, I have no application for costs. It may well be that it is not my position to raise this point, but I do so in any event. It may well be that you are further assisted for Counsel for the Crown Prosecution Service.

In the decision you have just made, you have indicated that as it is purported it is likely to establish new principle or extend the present law, it is a decision that may be cited, in relation to "L" case you have used the full names of the persons involved. I am unaware as to whether in the criminal proceedings involving a person under the age of 18 --

SIR JOHN THOMAS: They must have been named, surely.

MR EDIS: It is highly likely that they must have been named.

SIR JOHN THOMAS: I would be astonished in a case of this gravity, that a judge would have withheld, but can that be checked. It can be easily checked. If the name was withheld.

THE CLAIMANT: It was withheld until his birthday, but he is over 18 now.

SIR JOHN THOMAS: We are most grateful to you for bringing that to my attention but it appears that he has now been named. It was very helpful for you to have done that. Thank you very much.