Hubert, R (on the application of) v Director of Public Prosecutions & Anor [2015] EWHC 3733 (Admin)

Case No CO/2809/2015[2015] EWHC 3733 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2015
Before
LORD JUSTICE BURNETTMR JUSTICE IRWIN
Between
R (on the application of AISLING HUBERT)Claimant
Paul Diamond (instructed by The Claimant) for ClaimantSteven Kovats QC (instructed by Crown Prosecution Service) for DefendantJonathan Barnard (instructed by Hempsons Solicitors) for First Interested PartyHearing Hearing date: 1 December 2015
Judgment
[1]The Court addresses two applications for permission to apply for judicial review. The principal application concerns the decision by the Director of Public Prosecutions [“the DPP”] to take over and discontinue two private prosecutions brought by the Claimant. The second case is an associated matter of costs. We have refused permission in both cases. In this judgment I give my reasons in the substantive matter.[2]It is important to make clear from the outset that this case is not about whether it is possible to prosecute a doctor who has carried out an abortion on the ground of the gender of the foetus. It is possible to prosecute on such a basis, where there is good evidence to show that termination was authorised solely on gender-specific grounds and provided there is no legitimate reason for such a termination, such as a risk of sex-linked abnormalities or other clear legal and ethical justification.[3]This case is about whether, bearing in mind all the specific circumstances including delay, the decision taken by the DPP in the cases of these two doctors was an unlawful exercise of judgement.

The Facts

[4]In 2012, the Daily Telegraph was investigating whether terminations of pregnancy [“ToP”] were being offered on the ground of the gender of the foetus. A pregnant woman using a false name, accompanied by a journalist, approached a number of clinics to test the ground. They had meetings with Dr Sivaraman in Manchester and Dr Rajmohan in the Birmingham area. The essential facts of the events which followed were subsequently summarised by the then DPP, Sir Keir Starmer QC, in 2013 in the following terms, which I accept as accurate:
“The case against Dr S On 8 February 2012, a pregnant woman (referred to herein as “E”) attended a clinic using a false name. She was accompanied by an Investigative Reporter at the Daily Telegraph, posing as E’s step sister. After initial exchanges, E explained to Dr S that she was eight weeks pregnant and that she had had a blood test in France which indicated that there was a “high chance” that she was having a girl. E said that a girl was not really appropriate for her and her partner “right now” and that they were hoping for a boy. Dr S asked what sort of test took place in France. E then stated that she had had a previous pregnancy involving a girl which did not go to plan. She said that there was a chromosomal abnormality and the pregnancy was lost at 22 weeks. Dr S said, “I’m curious” and asked for reports of the test that took place in France. E said that she did not have any reports. Dr S said, “I don’t ask questions, if you want a termination, you want a termination.”
After a general discussion about E’s health and a scan, Dr S clarified whether E wanted to go to a private clinic. Dr S then telephoned a colleague to make the necessary arrangements and, in doing so, said “she’s had a foetal loss before at 22 weeks, but this time it’s basically social reasons.” When Dr S was interviewed by the police, she produced a prepared statement. She said that E told her that she had previously miscarried a female foetus, which was found to have a foetal abnormality. She also said that although E told her that she had had a test in France which indicated the gender of the foetus, she (Dr S) did not believe her. Dr S said that she did not know of any non-invasive test that could identify gender at such an early stage of pregnancy. She thought that E was not telling the truth and that there must have been some other reason why E wanted a termination. Dr S said:
“A woman claiming to have discovered that the foetus is female when that is a scientific impossibility is plainly hiding the truth. It follows that the truth is likely to mean that there are serious problems surrounding the pregnancy such that a termination would be in accordance with the Act.”
Dr S said that she believed that her management of E would be supported by a reasonable and responsible body of obstetricians and gynaecologists. The case against Dr R On 10 February 2012, the same pregnant woman (“E”) was again engaged by the Daily Telegraph to attend a clinic, again using a false name. After a scan conducted by a nurse, E told Dr R that she had had a previous pregnancy that ended at 22 weeks because the female foetus had “chromosomal defects’. When Dr R later asked E why she wanted a termination, E said:
“...me and my partner found out the gender in France through a blood test that you can have there in pregnancy and we found out it’s another girl. We don’t want a girl again because of the last time.”
Dr R confirmed that this was the reason and then said “it’s like female infanticide isn’t it”. E then asked if Dr R could put another reason down and Dr R agreed indicating that foetal gender is “not a good reason anytime”. Dr R agreed to put down that E was too young for a pregnancy. When interviewed by the police, Dr R provided a prepared statement in which he said he assessed the patient and the circumstances as explained to him and concluded that an abortion was justified on health grounds. He said the assessment was reasonable and arrived at in good faith. An abortion can only be authorised if two medical practitioners are of the opinion, held in good faith that one of the lawful grounds for an abortion is made out, Form HSA/1 is the form that is used to record the decision of the two medical practitioners. In the case of Dr R. there is evidence that another doctor in the same clinic, Dr K, pre-signed the form HSA/1 which was subsequently signed by Dr R. Dr K indicated on the form that he had not seen the patient. He signed as if he were the second doctor, but left the date blank.” “A woman claiming to have discovered that the foetus is female when that is a scientific impossibility is plainly hiding the truth. It follows that the truth is likely to mean that there are serious problems surrounding the pregnancy such that a termination would be in accordance with the Act.” The case against Dr R “...me and my partner found out the gender in France through a blood test that you can have there in pregnancy and we found out it’s another girl. We don’t want a girl again because of the last time.”

The case against Dr R

[5]Following referral by the newspaper, a police investigation followed. Subsequently, the Crown Prosecution Service was asked for advice on possible criminal charges. The evidence at this stage included the complete DVD of covertly-filmed footage, and statements from the woman and the journalist, in addition to the record of interviews with the two doctors.[6]The CPS considered the evidence under Section 58 of the Offences Against the Person Act 1861, which makes it an offence to procure an abortion. That offence is not made out if the ToP is procured in compliance with Section 1 of the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990), and it is the terms of the later Act which are important. The section reads: “(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.” (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.[7]On 27 August 2013, the Metropolitan Police announced that no charges would be brought against either doctor. On 7 October, the DPP spelled out his reasons for that decision. The Director noted that there was no express prohibition on gender-specific abortions. Rather there is in law a prohibition on any abortion which takes place “without two medical practitioners having formed a view, in good faith, that the health risks (mental or physical) of continuance outweigh those of terminations”, giving a wide discretion to doctors in assessing the health risks of the pregnant woman.[8]The Director went on to quote the 2012 guidance from the British Medical Association’s Handbook of Ethics and Law on the issue:
“Abortion on the grounds of fetal sex Fetal sex is not one of the criteria for abortion listed in the Abortion Act and therefore termination on this ground alone has been challenged as out with the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman’s health, or that of her existing children, would be put at greater risk than if she terminated the pregnancy, the abortion would arguably be lawful under section 1(1) (a) of the Abortion Act. (see page 283) [Morgan D (2001) Issues in medical law and ethics, Cavendish Publishing, London, pp147-9]. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone, except in cases of severe sex-linked disorders. The pregnant woman’s views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide legal and ethical justification for a termination. They should be prepared to justify the decision if challenged.”
[9]The Director went on to note that in his view this guidance “was far from clear”. It did however mean that, in the view of the British Medical Association, termination on the sole ground of the gender of the foetus is not lawful, unless the gender of the foetus gives rise to risks of injury to the physical or mental health of the mother, or existing children of her family, which were greater from continuance of the pregnancy than from termination.[10]The decision to prosecute is governed by the Code for Crown Prosecutors [“the Code”]. First, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of a conviction. If the prosecutor is satisfied of that, the second stage is to consider if prosecution is required in the public interest.[11]The Director analysed the evidential test in the case of Dr Sivaraman. Her account was that she did not believe that the woman ostensibly seeking an abortion had in fact had a test in France identifying the gender of the foetus. Dr Sivaraman was unaware of any such non-invasive test. The Director observed that in order to prove that Dr Sivaraman had authorised a gender-specific abortion, any prosecution would have to prove that she was lying when she said that she knew of no such test, able to identify gender at such an early stage. A prosecution would have to prove, contrary to her assertions, that she did believe that the woman knew the gender of the foetus and that she (Dr. Sivaraman) had authorised a termination on this ground alone. The Director observed that there was some evidence supportive of a prosecution on such a basis, in particular that Dr Sivaraman did not indicate to the woman at the time that she disbelieved her account, that Dr Sivaraman made clear she did not “ask questions” and that she told her colleague that the proposed termination was for “basically social reasons”.[12]There was the further complication that the woman had referred to a previous pregnancy involving a girl with an alleged chromosomal abnormality, where the pregnancy failed at 22 weeks. This account introduced a gender-specific health issue of potential relevance to the termination. The Director concluded with those facts in mind that it would not be possible for the prosecution to prove beyond reasonable doubt that Dr Sivaraman was lying in her account.[13]The Director went on to consider the different question of whether there was enough evidence to provide a realistic prospect of conviction against Dr Sivaraman on the ground that she had not carried out a sufficiently robust assessment of the risks to the woman’s mental and physical health, so as to form an opinion “in good faith” that the continuation of the pregnancy would involve risk to the physical or mental health of the woman greater than termination. The Director considered that question was very difficult to evaluate. There was limited clear professional guidance to doctors, setting out how far they should probe the relevant health risks. Nor was there clear guidance about how much detail a doctor should record. Next, the extant BMA guidance made it clear that, although gender-specific abortion was generally unethical, the guidance suggested that “the pregnant woman’s views about the effect of the sex of the foetus on her situation and on the existing children should nevertheless be carefully considered”. Further, Department of Health data relating to the reasons for abortions, taken with the extant guidance, meant that many doctors felt that an unwanted pregnancy could cause considerable stress and anxiety. That gave some support to Dr Sivaraman’s explanation that she concluded there was some other serious problem surrounding the pregnancy.[14]The Director’s final conclusion was that the evidential stage of the Code test, on the question whether the doctor had failed to carry out a sufficiently robust assessment, could just be passed, principally on the basis of Dr Sivaraman’s assertions that she did not ask questions when a patient seeks an abortion, combined with her description of the motivation as “basically social reasons”.[15]It is important to emphasise that even in this limited conclusion, the DPP did not find that the evidential test was passed in relation to gender-specific termination. The test was “just” passed in relation to an insufficiently robust assessment of the mother’s mental and physical health.[16]The Director went on to an analysis of the evidential test in relation to Dr. Rajmohan. The DPP began by observing that if the pregnant woman “had simply asked for a gender-specific abortion” the analysis would be straightforward. She did not do so. The woman made reference to her previous failed pregnancy at 22 weeks because of “chromosomal defects”. When asked for her reasons for a termination, she emphasised that history:
“we don’t want a girl again because of the last time”
. As the Director observed, this introduced a gender-specific health issue of real potential relevance to the assessment of the reasons for termination. Dr Rajmohan was obliged to take into account the problems that the woman claimed she had had with the previous female pregnancy. Whether her fear of a repeat of “chromosomal problems” was rational or not, it would be relevant.[17]It was significant that Dr Rajmohan agreed to put down a reason for the termination which he either knew to be untrue or never checked, namely that the woman was too young to continue with the pregnancy. However, because of the reference to the previous female pregnancy, the Director concluded it would be impossible for the prosecution to prove that when Dr Rajmohan stated an abortion was justified on health grounds, he was not only lying as to the cause, but in addition authorised the termination on the ground of gender alone.[18]As with Dr Sivaraman, the Director went on to consider whether there was enough evidence for a realistic prospect of conviction, not on the ground of a gender-specific abortion, but on the ground of insufficiently robust assessment of the risks to the mother’s health. Once more, the Director concluded this was a very difficult question to evaluate, for the reasons expressed in relation to Dr Sivaraman. The DPP considered that the judgement on the evidential test was “very finely balanced indeed”. It was relevant that Dr Rajmohan had been given a form HAS/1 (the standard form of authority for abortion) which had been pre-signed by another doctor. Investigation had demonstrated that pre-signing forms was common practice. Such a practice did not preclude consultation between the two necessary doctors. It did mean there was a possibility that no further consideration of the grounds for an abortion would be given by the other medical practitioner: the additional signature from the single doctor seeing the woman, might mean that the paper process was complete.[19]In the end, the Director concluded that the lack of probing of the woman’s reasons for requesting a termination, combined with the recording of a reason which was either untested or false, meant that the evidential stage of the Code test was just made out. However, the Director concluded that “even on this narrow basis the evidence is not strong and the prospects of conviction would not be high”.[20]The DPP then went on to consider the application of the public interest test. Here the Director emphasised that he was not considering the public interest in prosecutions for gender-specific abortion. He observed that there “might be powerful reasons for a prosecution in the public interest in such circumstances”. But no prosecution could be brought on such a basis in relation to these two doctors. The point at issue was the degree of public interest in prosecution for a failure to conduct sufficiently robust assessment of the risk to the pregnant woman’s health. This was what the Director described as “a narrow case”, meaning no doubt cases specific to their facts, which were in addition only just sufficient to pass the evidential threshold. It was relevant there was no guidance on how a doctor should set about the assessment of risk to health, no guidance on where the threshold of risk lay, no guidance on a proper process for recording. The Director went on:
“The discretion afforded to a doctor in assessing the risk to the mental or physical health of a patient wanting an abortion is wide and, having consulted an experienced consultant in obstetrics and gynaecology, it appears that there is no generally accepted approach among the medical profession.”
[21]The expert consulted had made clear that there was no explicit requirement under the Abortion Act that both or either medical practitioners are required to examine, or have direct contact with, the woman in question. That conclusion was drawn in part from the terms of the form HAS/1 itself, which on its face permits a doctor to certify that he or she has formed an opinion without seeing or examining the patient. Investigations across the country showed that the practice of pre-signing HAS/1 forms was widespread. The Director quoted a number of such instances as discovered by the Care Quality Commission [“CQC”].[22]Moreover, it was of evident relevance to the public interest that soon after the investigation of these cases, much clearer guidance than that previously issued by the BMA was promulgated by the Department of Health. It was to be noted that even the new guidance did not stipulate that each doctor must see and examine the patient, merely requiring that each doctor must have enough evidence of her circumstances to justify an opinion held in good faith that the ground for termination exists. Any prosecution would have to prove beyond reasonable doubt that there was bad faith on the part of the doctor. That would be of great difficulty in the absence of considered medical guidance. The Director went on to conclude:
“It is questionable whether the interests of justice are served in bringing a prosecution where such levels of uncertainty exist. In the absence of guidance the jury would have no yardstick by which they could measure the conduct of any doctor facing prosecution. … There is a serious risk that different juries would reach different decisions on essentially the same facts.”
[23]The Director also bore in mind the fact that both doctors had been referred to the General Medical Council Interim Order Panel and each had had conditions imposed on his or her registration. It was a relevant factor that, following consultation with the GMC, it was clear they would pursue these cases. The Director considered that despite the absence of criminal powers, it was “arguably more appropriate” for a professional disciplinary body to evaluate the proper approach to be taken by doctors in this context, than for a conclusion in the criminal court. The DPP reached the final view that the public interest test in this case was also finely balanced. However, bearing in mind the narrow basis of any prosecution, public interest factors against prosecution outweighed those in favour.[24]In addition to the public statement explaining his reasons, the DPP wrote to the Attorney General in similar terms.

The First Judicial Review

[25]The Claimant is a volunteer with a “pro-life” campaigning organisation. According to the amended statement of facts, she has the support of that organisation and the Christian Legal Centre. In January 2014, the Claimant filed an application for judicial review of the Director’s decision of October. That claim was issued just before the expiry of three months from the decision. That challenge was to the substance of the decision by the Director not to institute criminal proceedings against both doctors. The action was withdrawn in February 2014. According to the amended grounds in the later proceedings, “the principal reason for withdrawal was the propriety of judicial review only as a remedy of last resort. It was considered that a private prosecution must be attempted first”. In the course of the hearing before us a rather different explanation was given. It was suggested that the critical point was that the Claimant would wish to advance further evidence in the form of expert opinion. Whatever the reasoning, the matter was dropped, with the consequence that the DPP and the interested parties will have concluded there would be no challenge to the Director’s decision and no criminal proceedings.

Private Prosecution

[26]The Claimant did obtain expert opinion evidence. We have reports from two consultant obstetricians and gynaecologists, Dr Taylor of 5 April 2014 and Professor Lamont of 21 April 2014. We have also seen a report from Dr Gardner, a GP expert, of 14 October 2014. Following obtaining the reports, on 23 October 2014, the Claimant applied to the magistrates’ courts in Manchester and Birmingham for summonses for each of Dr Sivaraman and Dr Rajmohan. Between November 2014 and January 2015, summonses were issued against each and their cases sent to the Crown Court.[27]In the course of the application for summonses, the Claimant spelled out her criticisms of the decisions reached by the DPP in terms broadly consistent with the attack made previously in the judicial review claim, and in the current applications.[28]The evidential basis offered by the Claimant in the private prosecution was a good deal more restricted than the material before the DPP when he took his decision in October 2013. The evidence consisted of an unsigned, undated statement from the Claimant, some articles from the Daily Telegraph from 22 and 23 February 2012, extracts only from the DVD of the interviews with the two doctors which had been placed on the Daily Telegraph website, material from the CPS website and the website of the GMC, as well as the three expert witness reports.[29]On 27 November 2014, the Crown Prosecution Service wrote to the Claimant’s solicitors informing her that the DPP had been requested to intervene in the private prosecution in accordance with Section 6(2) of the Prosecution of Offences Act 1985 and to make a decision as to whether the proceedings should be discontinued.[30]The Claimant had commenced a private prosecution for conspiracy to commit an offence contrary to Section 59 of the Offences Against the Person Act 1861. That is to say, not the offence of procuring an abortion, but the slightly different offence of the procurement or supply of “poison or other noxious thing knowing that it was intended to be unlawfully used with intent to procure a miscarriage”. On 13 March 2015 the legal advisor to the DPP wrote to the Claimant’s solicitors informing them that the Director would intervene and stop the prosecutions. The letter pointed out that the evidence advanced by the Claimant consisted only of extracts from the covert footage. It did not contain any of the witness statements obtained during the original investigation, notably those of the undercover journalist and the pregnant woman. The Claimant had no personal knowledge of the events in question and could give no admissible evidence about them. The letter went on to say:
“The only potentially admissible evidence is that contained in the extracts from the covert footage produced as exhibits. However these are heavily edited and reduced in length. It may be argued that the manner in which they have been edited means that they do not provide a fair and balanced representation of events at each consultation. Moreover, no witness who was actually present is relied upon who could perhaps be asked questions to put these extracts in their proper context. In these circumstances the judge is likely to exclude these extracts as evidence under Section 78 of the Police and Criminal Evidence Act 1984. When considering the evidential stage of the code for crown prosecutors, prosecutors must consider the admissibility of evidence.”
[31]The Director’s representative went on to observe that there was no admissible evidence to support any offence and therefore insufficient evidence put forward by the prosecutor in either case. On the basis of the evidence advanced, there was no real prospect of conviction.[32]However, the Director’s office went on to broaden their consideration. They considered the charges selected by the private prosecutor against all of the available evidence known to exist, on the assumption no doubt that despite that evidence not being available at the time, it might possibly be made available. Even then, the conclusion was there was no evidence capable of supporting either the substantive offence under Section 59 or a conspiracy to commit that offence.[33]As a further step, the Director’s representative further widened the consideration, looking to see if there could be a prosecution for any abortion offence on the evidence which was known to exist. The Director’s representative noted that there were differences between the experts. Pertinent examples included the fact that the two consultants considered that a doctor did not need to see, let alone examine, the pregnant woman before authorising an abortion by signing HAS/1. They also differed in their view as to the absence of professional guidance at the time, as to how doctors should go about the comparative risk assessment.[34]Taking all that material into account, the Director (in 2015) referred back to the conclusions as to the public interest expressed in the decision of the previous DPP on 7 October 2013, and adopted those conclusions. The final paragraph of the letter reads:
“On the current evidence before the court there is insufficient evidence to form a realistic prospect of conviction. Even taking into account all the other evidence, there is insufficient evidence of a conspiracy to commit an offence contrary to Section 59. Whilst there is sufficient evidence for a realistic prospect of conviction of an offence under Section 58, this is truly very finely balanced indeed. However the public interest considerations in not pursuing a prosecution outweigh those in favour, as concluded and set out in 2013.”

The Second Judicial Review

[35]Two months after the decision to discontinue, on 15 May 2015 the Claimant issued the second judicial review. In the body of the grounds, the Claimant described these proceedings as “effectively a continuation” of the judicial review which had been withdrawn in February 2014, in relation to the decision of October 2013.[36]On 19 August 2015, permission to apply for judicial review was refused on paper by Mr Justice Nicol on grounds of substance and delay. By this route the matter came before us on a renewal of the application for permission.

The Claimant’s Arguments

[37]The Claimant begins by arguing that the question of the “good faith” of the doctor sanctioning abortion is a question for the jury (see R v Smith (John) [1974] 1 All ER 376), and that the DPP has, in these cases, usurped the role of the jury (see: R (Joseph) v DPP (2001) Crim LR 489 and R v DPP, ex parte Manning [2001] QB 330).[38]The heart of the claim centres on the importance of, and thus public interest in, gender-specific abortion, or what the Claimant’s counsel termed “gendercide”. The decisions taken by successive Directors not only removed from a prospective jury a question properly left to them, but failed to grasp or reflect the importance of that issue.[39]Mr Diamond sought to rely on European as well as English law. He cited to us the decision of the European Court of Human Rights in Vo v France (2004) Application No 53924/00. This was a decision of the Grand Chamber. Following a review of case law, the Court concluded (paragraph 80) that in considering the various laws on abortion across the member states, the Court had not taken the view that the unborn child was to be “regarded as a “person” directly protected by Article 2 of the Convention, and that if the unborn do have a “right to life”, it is implicitly limited by the mother’s rights and interests”. The Court concluded that the issue of when the right to life begins “comes within the margin of appreciation which the Court generally considers that states should enjoy in this sphere…”[40]However, Mr Diamond did not place reliance on this central conclusion of the ECtHR save to show (he said) that Article 2 was engaged. Rather, he referred to the dissenting opinion of Judge Ress (paragraph 50) who emphasised the importance of criminal law in enforcing and protecting the values “now in need of protection”. Disciplinary penalties for a doctor offered insufficient deterrence and protection.[41]Thus Mr Diamond argued that in assessing the public interest in these prosecutions, successive Directors had placed too much reliance on medical discipline. This was to be considered in the light of English authority on the role of the Director. Here Mr Diamond relied on a citation from R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310: the public interest test is not a “free-wheeling palm tree”. Where reasons are given by the DPP (as here) they must satisfy the norms of public reason, transparency and justification, see: R (Purdy) v DPP [2010] 1 AC 345.[42]I reject the approach of the Claimant on several grounds. The first and most basic is that the Claimant’s arguments fail to grapple with the reality of the decisions taken by the successive Directors. In each case they concluded that the evidential test could not be satisfied in relation to a prosecution for any offence founded on gender-specific abortion. Mr Diamond failed to get to grips with that fact. No general proposition that the Director has invaded the function of the jury can overcome that hurdle. It follows also that any challenge on public interest fails, if the public interest in question is gender-specific abortion. As I emphasised at the outset of this judgment, this case is concerned with the specific decisions in this case, not a general proposition which does not arise here.[43]On any view, the approach taken by the DPP in 2015 was as broad as could be asked for. The Director might simply have concluded that the evidence offered by the prosecutor Claimant was insufficient to prove the offence for which she was prosecuting the two doctors, a conspiracy to commit an offence contrary to Section 59 of the 1861 Act. The Director did not do so. Rather she made the assumption that all the evidence which might be made available would be deployed, and considered any offence which might be in question: in effect considering conspiracy to commit an offence against Section 58 of the Act, by means of inadequate assessment and/or bad faith on the part of the doctors. The Claimant offered no detailed or analytical critique of the reasoning of the Director in 2015, or her predecessor in 2013, the latter having been adopted by the letter of 2015.[44]In my judgment, the approach adopted by the Director in 2015 was analytical, reasonable, and properly balanced. The conclusions are not open to attack as being irrational, perverse or otherwise unlawful. Even if all the evidence which might have been available was brought to bear, and if a conspiracy to commit a section 58 offence was to be considered, the analysis of the Director was unimpeachable. Insofar as she referred back to the approach taken to public interest in 2013, that reasoning, too, appears to me to be sound. The evidential test was only just passed. She was entitled to conclude that there was limited public interest in the good faith and adequacy of investigation by two doctors on specific facts. It was logical and appropriate to consider that professional disciplinary proceedings were in train, that the historic published guidance was less than clear, and that fresh authoritative guidance had been issued.[45]For sound constitutional reasons, the Courts have been careful to emphasise that the power to review prosecutorial decisions must be exercised sparingly, see R v DPP, ex parte Manning [2001] QB 330, at paragraph 23; R(Purdy) v DPP [2010] 1 AC 345, see Lord Neuberger at paragraph 99; R v DPP ex parte Kebilene [2000] 2 AC 326. This is so, whether the decision is for or against prosecution, provided the evidence exists as a proper foundation for prosecution. As

Lord Judge CJ emphasised in R v A [2012] 2 CAR 80:

“Provided there is evidence from which the jury may properly convict, it can only be in the rarest of circumstances that the prosecution may be required to justify the decision to prosecute.”
[46]In my judgment the criticism of the decision under challenge falls very far short of the point where the jurisdiction to intervene should properly be exercised. The cases to which I have referred demonstrate that where the challenge is to the DPP’s assessment of the evidence for the purposes of deciding whether the evidential test is satisfied before bringing a prosecution, the courts are circumspect in judicial review proceedings. That circumspection is all the more necessary when the court is being asked to question the DPP’s assessment of the public interest in a prosecution.[47]I have addressed the substance of the application quite deliberately, given the sincerity of the Claimant and the public interest in the general question of gender-specific abortion, despite my view that the question does not directly arise on these facts. However, I should indicate that I would in any event refuse permission here on the ground of delay. The sequence of events and dates are set out above and I will not repeat them. This application is indeed a “continuation” of the first judicial review, abandoned in early 2014. There was no good reason to abandon that challenge, in order to pursue a private prosecution. As the Interested Party has pointed out, were such an obligation to arise here, it would do so in every case. That is not the law. Insofar as the first judicial review was thought to be inadequate in some way because it would prove difficult to introduce fresh, expert evidence, that represents a tactical decision by the Claimant. There is no challenge to the proposition that the same two-stage evidential and public interest test falls to be applied when considering prosecution at the behest of the police (as in 2013) and considering the exercise of the Director’s powers in relation to private prosecutions (as in 2015). This was an unwarranted prolongation and delay of a legal challenge which should either have been pursued in time, or not at all.[48]For these reasons, I rejected the renewed application for permission.[49]I agree.