Challenges to decisions to prosecute have remained rare

Most authorities with enforcement powers have adopted policies by reference to which decisions to prosecute are taken. '¨Individuals aggrieved by enforcement decisions invariably point to the authority's failures to follow the relevant policies.

A series of recent cases have made it clear that judicial reviews of decisions to prosecute in these circumstances will only be entertained in exceptional circumstances. This serves as an important reminder to those caught up in the criminal process: a trip to the High Court in the context of an ongoing prosecution is likely to be costly but it is unlikely to bear fruit.

Conscientious decision

A v R [2012] EWCA Crim 434 was an appeal against the appellant's conviction and sentence for perverting the course of public justice. The appellant had made, and later retracted, an allegation of rape against her husband. One of the grounds of appeal was that the decision to prosecute the defendant was contrary to CPS Guidance.

Lord Judge CJ deprecated the development of satellite litigation in which the exercise of the prosecutorial discretion is made subject to judicial review. He held that apart from on very few occasions such cases should be dismissed at the permission stage since the defendant is able to raise their concerns in the criminal court itself.

He held that if the decision to prosecute has been undertaken "conscientiously" then "provided that there is evidence from which the jury may properly convict it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute".

Even if "in some respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there has been an abuse of process".

The case of A was applied by the High Court in Moss and Son Limited v CPS [2012] EWHC 3658 (Admin). Moss was an appeal by way of case stated against the dismissal of an abuse of process argument. The High Court dismissed the argument that there had been a breach of the relevant enforcement policy but went on to consider what the position would have been if a breach of it had been established.

The president of the Queen's Bench Division held that a failure to follow and apply a policy would not itself be enough to justify a stay on the grounds of abuse of process. A defendant would have to "go on and establish misconduct or oppression of the type explained in ex parte Bennett [1994] 1 AC 42". The misconduct in Bennett involved the kidnap and irregular extradition of a New Zealand national from South Africa to the UK.

On the facts, the court '¨found that because the prosecutor had given thought '¨to its prosecution policy there had been a conscientious application of the policy. Even '¨if the authority had made some mistakes in applying the policy, the prosecution would still not have been oppressive.

Inimical challenges

In dismissing a judicial review of a conviction for food hygiene offences the High Court in R (Baron's Pub Company) v Staines Magistrates' Court [2013] EWHC 898 (Admin) adopted similar reasoning as in Moss. The court held that if a policy had been considered and improperly applied it would still be necessary to show oppression above and beyond the initiation of a prosecution.

Baron's Pub Company affirms that challenges to decisions to prosecute "are strongly to be discouraged as inimical to the proper administration of justice. We very much hope that such challenges will be very rare indeed in the future." SJ