Wed, 23 Dec 2020
On 23 December 2020 the Divisional Court handed down judgment allowing the judicial review brought by No5’s Philip Rule and quashing this decision, in R (Purvis) v Director of Public Prosecutions  EWHC 3573 (Admin).
This is in fact the second time that the High Court, differently constituted, has quashed the DPP’s refusal to prosecute Detective Constable Uren for the untrue statements he made under oath in Crown Court proceedings which in consequence were aborted after 7 days of trial and the jury discharged.
As well as making untrue statements in the witness box the officer had altered the dates given in an original witness statement of a witness of recent complaint twice, allegedly to better reflect her revised account given to him. After the first alteration he was told by prosecuting counsel he must not do so; and then within a day or two he had done so again. Despite this being witnessed by both counsel in the criminal case he maintained he had not made the second alteration under oath on a voir dire. He many months later admitted what he had done, long after both counsel had called out this untruth and became witnesses in the trial, causing it to be unable to proceed.
The Crown Prosecution Service initially decided that there was evidence of the offences of perjury, perverting the course of justice and misconduct in public office. However, the CPS decided that the second part of the charging test was not met – deciding that the public interest test did not require prosecution of these serious offences.
That decision was challenged by judicial review, and the Divisional Court quashed that decision in 2018: R (Purvis) v Director of Public Prosecutions  4 WLR 118;  2 Cr. App. R. 34;  A.C.D. 104;  EWHC 1844 (Admin).
Subsequently, a fresh decision by the DPP decided that the public interest required a prosecution, but this time reversed the evidential conclusion previously reached. It decided that it would take into account the ‘defence’ given by the officer in the disciplinary proceedings that had by then concluded. Those were proceedings going to a different issue of dishonesty, and misconduct under specific regulations, and where no witness was asked to give evidence save for DC Uren himself. On this CPS review it was decided that the evidential threshold for prosecution was not met, and the offences would not be likely to be proved at trial. This new suggestion that the evidential threshold for prosecution was not met was challenged by judicial review.
Mr Justice Garnham, sitting with Lord Justice Stuart-Smith, ruled in favour of the Claimant’s submissions that the DPP failed to consider the correct legal ingredients of the offence of perjury. The Defendant’s second decision has also been quashed.
The Court noted the 2019 decision and review decision restated the test for perjury as being:
“In other words, was he being deliberately dishonest … or was his assertion on this point an honest mistake?”. However, crucially, that re-statement omits the second part of the expression in the first sentence “knowing it to be false or not believing it to be true." Critically, it treats the word “wilfully” as qualifying the state of knowledge rather the making of the statement. The statutory test is now expressed as being whether DC Uren was “deliberately dishonest”.
The only alternative to deliberate dishonesty being contemplated… was honest mistake. But the second part of the statutory test requires the decision-maker to ask, in addition, whether the [officer] did not believe the statement to be true. The significance of the point is that, on the Defendant’s formulation of the statutory question, the choice is between a deliberate lie and an honest mistake, whereas the statute permits a third possibility. That third possibility is that the maker of the statement did not know it was false, but neither did he positively believe it to be true. In other words, the formulation of the test adopted by [the Defendant] excludes the possibility that DC Uren made the statement recklessly, without thought at all, or not caring whether or not the statement was true.
The Divisional Court concluded that, if it was not a deliberate lie given on the voir dire, it was at least potentially an answer given without thought and without a belief that it was true. If that is a possibility, then it was one the Defendant failed to consider, and the decision not to prosecute for perjury is flawed in consequence.
Philip was instructed by Shkar Kider of Kesar & Co.
Philip is head of the public law group, and a member of the criminal group at No5. He is recognised as a leading junior in these fields by the Legal 500 and Chambers UK Bar directories. Philip is extremely experienced in judicial review matters, both in a criminal and prisons context and in matters concerning social care, inquests, human rights, legal aid, regulatory issues and public interest litigation. Philip’s public law profile is here.