Divisional Court quashes decision not to prosecute – Philip Rule acts for successful claimant

Thu, 26 Jul 2018

On 25 July 2018 judgment was handed down by the Divisional Court (Holroyde LJ; Andrews J) in P v The Director of Public Prosecutions [2018] EWHC 1844 (Admin) quashing a decision by the CPS not to prosecute a police officer who had both altered dates in a witness’s police statement, and given untruthful evidence on a voir dire before the Crown Court, causing both counsel in the case to become witnesses and withdraw, and the jury trial to be aborted on its fifth day.

The Court observed that the authorities in this area indicate that it is only in rare cases that the Administrative Court will interfere with a prosecution or non-prosecution decision. Nonetheless, this case was one of them.

Philip Rule successfully argued that it was appropriate for the Court to interfere with the decision on two bases:

  1. the decision was Wednesbury-unreasonable or perverse; and
  2. the decision, that the evidential test for a charge of perverting the course of justice was not met, was wrong in law.

Under the Code for Crown Prosecutors although a prosecution will not necessarily be brought whenever the evidential test is met, it will usually be brought unless there are public interest factors tending against prosecution which outweigh the factors in favour. The Reviewing Lawyer had found sufficient evidence to charge perjury and misconduct in a public office. The conduct had serious consequences including that a Crown Court trial had to be stopped after some five days.

The principal reason adopted not to prosecute appeared to have been that prosecution would be disproportionate to the alleged offending, “in light of the potential alternative personal outcome” for the officer. One reason that the decision was flawed was that at the time when she was making her decision, it was a matter of speculation what sanction the officer might suffer as a result of the pending disciplinary proceedings, and to base the decision in part on an expectation as to that sanction was to put the cart before the horse. 

Likewise, whilst the prospect that disciplinary proceedings might result in dismissal was a relevant factor, it was not necessarily a reason why there should be no prosecution.  There are many cases in which a prosecution is appropriately brought notwithstanding that the accused faces disciplinary proceedings which may result in his being unable to work again in his chosen field. 

The Code also required consideration be given to the significance of the likely penalty in the event of conviction, and the need to maintain public confidence in the impartiality of decision-making in relation to prosecutions of police officers suspected of serious crimes. 

On the evidence available to the Reviewing Lawyer it was not reasonably open to her to decide that the public interest did not require a prosecution. 

As to the offence of perverting the course of justice, the Court agreed with Mr Rule that the Reviewing Lawyer fell into error when she dismissed any possibility of a successful prosecution for the offence of doing acts tending and intended to pervert the course of justice.  The offence may be committed even if an accused’s motive was to achieve what he believed to be a just result.  There is a distinction between the course of justice – which in this case undoubtedly was perverted, as the trial had to be stopped and the claimant retried at a later date – and the ends of justice.

Philip Rule, is a specialist in public law and criminal law matters, and in particular judicial review claims.

View Philip Rule's profile here: http://www.no5.com/barristers/barrister-details/436-philip-rule/

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