Chaudhry, R (On the Application Of) v Director of Public Prosecutions [2016] EWHC 2447 (Admin)

[2016] EWHC 2447 (Admin)

Case No CO/2944/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/10/2016

Before

LORD JUSTICE GROSS

MR JUSTICE NICOL

Between

THE QUEEN ON THE APPLICATION OFClaimant

ABIDA CHAUDHRYClaimant

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

Dan Squires QC (instructed by Bhatt Murphy Solicitors) for Claimant

Duncan Penny QC (instructed by Crown Prosecution Service) for Defendant

Hearing Hearing date: 27 May, 2016

Judgment Approved

Lord Justice Gross :

INTRODUCTION

[1]Mrs Chaudhry (“the Claimant”) and her elder son (“Ahmed”) were victims, truly so-called, of a dreadful wrong. The Claimant’s younger children (“Ali” and “Aqsa”) were abducted by her then husband (“Choudhry”, he and his family apparently use a different spelling of their surname) in April 1998, when aged 3 and 2 respectively and removed from this jurisdiction to Pakistan. By the time they returned to this country in late 2012, they had become estranged from the Claimant and now have no contact with her. In 2013, Choudhry was located in the Netherlands. In 2014, he was extradited to this country pursuant to a European Arrest Warrant; subsequently, he was tried and convicted on two charges of child abduction and sentenced to 7 years’ imprisonment.

[2]The Claimant has always taken the view that Choudhry’s sister, Farkhanda Choudhry (“FC”), apparently a dentist, was deeply implicated (to put it no higher) in the abduction of Ali and Aqsa. Other than serving a short sentence of imprisonment for contempt of court in 1998 when resolutely refusing to assist the Court in connection with the whereabouts of Ali and Aqsa very shortly after their abduction, no proceedings have been brought against FC and she has never been charged in connection with the abduction. The Defendant (“the CPS”) declined to prosecute FC, taking the view in November 2013 that there was no realistic prospect of a conviction. That view was reconsidered after Choudhry’s trial and conviction but the CPS conclusion remained unaltered. The Claimant alleged that the CPS should have prosecuted FC and maintained this view even after Choudhry’s conviction and sentence.

[3]Various exchanges followed as to the scope of the CPS Victims’ Right of Review Guidance (“the VRR”). The key issue related to a part of para. 11(iii) of the VRR. That paragraph and others will be set out more fully later and set in context but, for the moment, it suffices to set out the terms of para. 11(iii) itself:

“ The following cases DO NOT fall within the scope of the VRR. (iii) cases where charges are brought …..against some (but not all) possible suspects;”

[4]In the event, on 18th June, 2015, the Claimant commenced proceedings for Judicial Review, claiming that the CPS erred in law in its application of the VRR and/or that the VRR Guidance is itself unlawful and contrary to Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012, establishing “minimum standards on the rights, support and protection of victims of crime” (“the Directive”) and common law, on the following grounds: i) That the CPS had interpreted para. 11(iii) of the VRR as an absolute bar on its reviewing the decision not to prosecute FC; the imposition of such a bar was unlawful. ii) Alternatively, if para. 11(iii) of the VRR did not impose an absolute bar, that the CPS had acted unlawfully in treating it as doing so and/or in failing to indicate to the public the circumstances in which a review apparently barred by para. 11(iii) would nevertheless be conducted.

[5]In the meantime, the CPS, while maintaining that the VRR scheme did not entitle the Claimant to a further review of the decision not to prosecute FC, nonetheless decided on 15th June, 2015 – by way of what it termed an “exceptional course” - to conduct such a review and did so, between June and November 2015. The upshot of this review was that the CPS reached the same conclusion as before: there was no realistic prospect of a conviction of FC. The Claimant does not seek to challenge the substance of that decision.

[6]Nonetheless, the Claimant has pursued this claim for Judicial Review. Giving permission on the 25th November, 2015 (but, it would seem without being aware of the final outcome of the review), Wilkie J said this:

“1. It still appears that the decision challenged is claimed by the defendant to have been taken on the ground that the claimant’s application for a review fell outside the review scheme as a matter of absolute policy and that any ad hoc review agreed to be undertaken would be outside the review scheme. 2. It remains arguable, therefore, that the defendant’s construction of the scheme is erroneous or that the terms of [the] scheme constitute an unlawful fetter on the DPP’s discretion to grant a review pursuant to the scheme. 3. Even though what is now on offer, on an ad hoc basis outside the ambit of the scheme, may in substance amount to the same or similar, it is arguable that the entitlement of the claimant to have the scheme applied to her is a matter of substance and not academic. ”

The result, it may at once be noted, is that these proceedings have continued although the Claimant no longer seeks and is not in a position to obtain any practical benefit with regard to the prosecution of FC; the prospect of any such prosecution has gone. On the material available to us, FC may well be lucky – but I cannot express any conclusion in this regard as the merits of the decision not to prosecute her have not been argued before us.

[7]In the course of these proceedings, the CPS indicated that para. 11(iii) of the VRR Guidance would be amended to make it clear that the CPS may exercise its discretion to depart from the strict terms of the scheme to accept cases that would otherwise be excluded, when there was good reason to do so. Revised guidance to this effect was to be published on the 21st July, 2016 – and, as I understand it, has now been published (“the VRR 2016”).

[8]This proposed amendment to the VRR did not serve to bring the proceedings to an end. The Claimant continued to maintain her two grounds of complaint, though, at least in my judgment and as Nicol J observed in argument, the Claimant’s position has shifted. Initially, the Claimant challenged what she alleged to be an absolute bar to the CPS considering a claim not strictly falling within para. 11(iii) of the VRR. Now, there appears to be an assertion of a general right to a review of a decision not to charge one or more of a number of suspects, subject only (as the Claimant would have it) to a discretion in exceptional circumstances to refuse to accept such a case.

[9]In a nutshell, the rival cases as ultimately deployed before us can be outlined as follows. For the Claimant, Mr Squires QC, submitted that para. 11(iii) of the VRR was unlawful. Apart from declaratory relief, he sought the quashing of para. 11(iii) of the VRR. Alternatively, he contended that the words “or against some (but not all) possible suspects” should be deleted from para. 11(iii) of the VRR. In the further alternative and as to the amendment to the VRR, Mr Squires submitted that it was not proportionate to replace the right to a review “…with a faint hope that a discretion will be exercised in victims’ favour…”. Instead, the right course was “…to recognise that there is generally a right to a review, but to indicate that there may be exceptional circumstances in a particular case where it is not possible fairly and proportionately to conduct the review…” – though even that, Mr Squires asserted, was difficult to reconcile with the right accorded by the Directive and the common law. Moreover, the criteria on which the CPS would exercise a discretion to review (in a case falling outside the VRR) were not transparent – even under the VRR as amended.

[10]For the CPS, Mr Penny QC, submitted that there were “sound, rational and compelling reasons associated with the role of the independent prosecutor” in our adversarial system, not least given the feature of jury trials, which justified the scope of the VRR and, in particular, para. 11(iii) thereof. Operational prosecutorial discretion was involved, together with questions of practicality. The facts of this case demonstrated that the VRR did not operate as an absolute bar to reviewing a decision not to prosecute. Any doubt in this regard was in any event resolved by the amendment contained in the VRR 2016 (set out below). So far as the exercise of discretion was concerned, this was itself informed by publicly available CPS Code for Crown Prosecutors, January 2013 (“the Code”).

THE STANDING OF THE CLAIMANT

[11]At the outset, I confess to considerable reservation as to proceeding with this claim beyond dismissing it, summarily, on the simple ground that the Claimant can obtain no substantive relief beyond that which she has already obtained – a review, the outcome of which is unchallenged before us. Instinctively, I incline to the view that these proceedings are thus essentially academic from the Claimant’s perspective – in that she has no real interest in a consideration of the lawfulness of the VRR other than so far as it has impacted on her claim. The proceedings are publicly funded.

[12]It was, however, urged on us by Mr Squires that the Claimant did not lack standing to pursue this claim. Having regard to R(O) v Secretary of State for International Development

[2014] EWHC 2371

and the authorities there cited, at [12] and following, it was submitted that the Claimant had a “sufficient interest in the matter”, within S.31(3) of the Senior Courts Act 1981. The test excluded a “mere busybody” but was not to be approached unduly restrictively; the Claimant had a legitimate concern in the matter and, in any event, judicial review was a means of vindicating the rule of law – a matter of relevance here as, if the Claimant was otherwise correct, victims were being deprived of a right of review furnished by the Directive and common law. The Claimant was acting in the public interest in relation to an issue affecting members of the public who were or might be victims of crime.

[13]Such arguments were, with respect, less than persuasive. The Claimant is an individual, not a representative body or an NGO. The basis for the Claimant acting in the public interest is unclear, at least to me. It is, however, unnecessary to reach a final conclusion. I am prepared to proceed on the assumption (without deciding) that the Claimant has the necessary standing for the claim to be determined on its merits. The reason is that the parties had fully prepared for the hearing, so that it was in practical terms convenient to deal with the matter in this Court rather than to decline to hear it – and less wasteful of public money. Moreover and though in no way decisive, it is perhaps instructive that Mr. Penny QC for the CPS, did not press objections to the Claimant’s standing with any vigour.

VICTIMS AND THE CRIMINAL JUSTICE SYSTEM – THE EVOLVING FRAMEWORK

[14](1) Introduction: Putting private prosecutions to one side, a criminal prosecution in this jurisdiction is brought by the Crown on behalf of the State or public at large; it is emphatically not a matter of individual vengeance for the victim of crime or the victim’s family. The prosecutor is required to exercise independent operational judgment – as exemplified by the creation of the CPS pursuant to the Prosecution of Offences Act 1985 in order that it should function as an independent prosecuting authority.

[15]An independent focus on the public interest is not, of course, incompatible with paying adequate attention to the interests of complainants, victims (mentioned separately as not all complainants are victims) and witnesses in the Criminal Justice System (“CJS”); indeed, quite the contrary. For whatever reason, however, it is fair to acknowledge that, for too long, inadequate attention was paid to the interests of complainants, victims and witnesses – all of whom are entitled to be treated with dignity and respect throughout the CJS process and to have their respective interests taken into account. In this regard, there has been a sea change in recent years. One aspect of this sea change is the VRR, a scheme of real significance for public confidence in the CJS. The VRR in force at the material time was the July 2014 version. The scope of para. 11(iii) of the VRR is, as already noted, at the centre of this dispute.

[16]It must, however, be noted that, as will appear, the increased focus on the position of complainants, victims and witnesses has not resulted in any dilution of prosecutorial independence. That independence remains, as it always has been, a consideration of fundamental importance.

[17](2) R v Killick: The first relevant authority in this area to which we were referred was R v Killick

[2011] EWCA Crim 1608

;

[2012] 1 Cr App R 10

. The factual background concerned the tension between the interest of a victim in the review of a decision not to prosecute and the defendant’s interest in the certainty of indications that the matter would be discontinued. Following the reversal of a decision not to prosecute, the defendant sought a stay of the proceedings as an abuse of process. The defendant’s contentions failed; he was convicted and his appeal was dismissed.

[18]Giving the judgment of the Court, Thomas LJ (as he then was) emphasised (at [47]) the role of the CPS as the “independent prosecutor”. There was no VRR at the time, with the result that the request for a review of the decision not to prosecute was, as a matter of form, made as a “complaint”: [48]. However, as Thomas LJ put it (ibid):

“ Far from the CPS being able to refuse to do this, it was bound to do it. In the first place, the CPS has made clear that it will review decisions….if a ‘complaint’ is made. Second, it has for some time been established that there is a right by an interested person to seek judicial review of the decision not to prosecute….; it would therefore be disproportionate for a public authority not to have a system of review without recourse to court proceedings. Third, it is clear that in considering whether to prosecute the prosecutor has to take into account the interests of the state, the defendant and the victim – the three interests in a criminal proceeding….. As a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek a review of such a decision, particularly as the police have such a right under the charging guidance.”

[19]Thomas LJ continued as follows (at [49]):

“ Thus, although it was contended by the Crown that complainants had no right to request a review of a decision not to prosecute in contradistinction to the ability to make ‘a complaint’, we can discern no reason why what these complainants were doing was other than exercising their right to seek a review about the prosecutor’s decision. That right under the law and procedure of England and Wales is in essence the same as the right expressed in art. 10 of the draft EU Directive…dated May 18, 2011 which provides ‘Member States shall ensure that victims have the right to have any decision not to prosecute reviewed.’ ”

[20]Finally, Thomas LJ re-emphasised the independence of the prosecutor (at [51]); while the complainant had the right to a review, it was for the independent prosecutor to reach a decision impartially, subject only to review by the court.

[21]A number of themes appear from Killick: i) Building on the draft version of the Directive, Killick foreshadowed the VRR and prompted its coming into existence. ii) The VRR was preferable to leaving a dissatisfied victim with judicial review as the only means of challenging a decision not to prosecute. A necessary corollary is that the VRR must ensure that the right to review is an effective right. That said, Killick says nothing as to the scope of the right to review; on any view, it is not prescriptive in that regard. iii) The independence of the prosecutor is emphasised throughout.

[22](3) The Directive: The Directive evidences an increased focus on the position of victims - epitomised by a number of the Recitals. An example is Recital (26), which is in these terms:

“ When providing information, sufficient detail should be given to ensure that victims are treated in a respectful manner and to enable them to make informed decisions about their participation in proceedings. In this respect, information allowing the victim to know about the current status of any proceedings is particularly important. This is equally relevant for information to enable a victim to decide whether to request a review of a decision not to prosecute…..”

The “right to review” is dealt with specifically by Recital (43):

“ The right to a review of a decision not to prosecute should be understood as referring to decisions taken by prosecutors and investigative judges or law enforcement authorities such as police officers, but not to the decisions taken by courts. …..The right to a review of a decision not to prosecute does not concern special procedures, such as proceedings against members of parliament or government, in relation to the exercise of their official position. ”

[23]Art. 1 states that the purpose of the Directive “…is to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings”. A “victim” is defined by Art. 2.1(a)(i) as “a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence.”

[24]Art. 11.1 is central for present purposes and provides as follows:

“ Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law. ”

Art. 11.3 focuses on the provision of timely and sufficient information to victims, so that they can decide “…whether to request a review of any decision not to prosecute…”.

[25]As will at once be apparent, the Directive is expressed at a high level of generality and, in my judgment, needs to be read as such. This point is highlighted in that, manifestly, not all of the Directive is applicable to the CJS of each Member State. Thus the final sentence of Recital (43) is inapplicable to this jurisdiction, as is Art. 11.2 (which it is unnecessary to set out here). The width of the Art. 11.5 “carve-out” is itself of interest: the right of review is excluded if a decision not to prosecute results in an out-of-court settlement, insofar as national law makes such provision.

[26](4) The VRR: We were told that the VRR was published on the 4th June, 2013. The VRR (as explained at para. 6) gives effect to the principles laid down in Killick (supra) and the Directive. The “right” in question (para. 8) is the right to request a review of the decision; it is not “a guarantee that proceedings will be (re) commenced”.

[27]Paras. 9 – 12 of the July 2014 VRR are central and provide as follows:

“ Which decisions are subject to the scheme? 9. The right to request a review arises where the CPS: (i) makes the decision not to bring proceedings (i.e. at the pre-charge stage); or (ii) decides to discontinue…..all charges involving the victim, thereby entirely ending all proceedings relating to them; (iii) offers no evidence in all proceedings relating to the victim; or (iv) decides to leave all charges in the proceedings to ‘lie on file’ 10. These are known as ‘qualifying decisions’. 11. The following cases DO NOT fall within the scope of the VRR: (i) cases where the qualifying decision was made prior to the 5 June 2013; (ii) cases where the police exercise their independent discretion not to investigate or not to investigate a case further ….and the CPS have not been requested to make a formal decision to charge. Requests for review of such decisions must be addressed to the relevant Police Force; (iii) cases where charges are brought in respect of some (but not all) allegations made or against some (but not all) possible suspects; (iv) cases where a single charge or charges are terminated but another charge or charges relating to that victim do continue; (v) cases where proceedings against one (or more) defendants are terminated but proceedings (relating to that victim) against other defendants continue; (vi) cases where a single charge or charges are substantially altered but proceedings involving that victim continue; (vii) cases where some (but not all) charges are left on file; (viii) cases which are concluded by way of out of court disposal; and (ix) cases where the victim requests that proceedings be stopped or withdraws support for the prosecution and a decision is therefore taken not to charge/to terminate proceedings. 12. Concerns about legal decisions which do not fall within the scope of the VRR scheme and service complaints will be dealt with in accordance with the CPS Feedback and Complaints policy…..”

[28]Mention has already been made of the amendment to the VRR, introduced by the VRR 2016. Immediately following the words “DO NOT” in para. 11, there is a footnote reference which provides as follows:

“ As Lord Judge CJ explained in A v R [2012] EWCA Crim 434 at paragraph 84 there may be instances in which ‘it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance’. It follows that there may be very exceptional circumstances in which cases that fall within the exceptions of paragraph 11 may nevertheless be considered for inclusion in the VRR scheme on the advice of the ARU manager or other senior manager.”

[29]The VRR 2016 was further amended by the addition of a para. 11 (x), excluding from the scope of the scheme cases brought to an end in circumstances where the prosecution may have a right of appeal or where a decision was made not to oppose an application to dismiss charges.

[30]The VRR proceeds in stages. The first stage involves an attempt at “Local Resolution” (paras. 22 and following). Where the victim’s dissatisfaction has not been resolved locally, the decision of which review is sought will be subject to an independent review by “the Appeals and Review Unit or relevant Chief Crown Prosecutor as appropriate”: paras. 29 and following. A flow chart attached to the VRR assists in explaining the process.

[31]The VRR recognises (at para. 32) the important principle that people should be able to rely on decisions taken by the CPS as being final “and that such decisions should not ordinarily be revoked”. However, there was a need for “a careful balance” to be struck between certainty in CPS decision-making and not allowing wrong decisions to stand. The VRR continues as follows:

“ 32. …..It is right therefore, in order to maintain public confidence in the criminal justice system, that the CPS will sometimes have to look again at a prosecution decision, and change it if it is found to be wrong. If a decision is found to be wrong, it may be necessary to commence or re-institute criminal proceedings. 33. The …[VRR]…provides a victim with a specifically designed process to exercise the right to review. The reviewer must conduct a …review of the case afresh, and in order to overturn a decision not to prosecute they must be satisfied: • that the earlier decision was wrong in applying the evidential or public interest stages of the Full Code Test (as set out in the Code for Crown Prosecutors); and • that for the maintenance of public confidence, the decision must be reversed.” • that the earlier decision was wrong in applying the evidential or public interest stages of the Full Code Test (as set out in the Code for Crown Prosecutors); and • that for the maintenance of public confidence, the decision must be reversed.”

[32]This reference to the Code makes it convenient to outline its provisions here: i) Para. 2 serves to emphasise the independence of the prosecutorial discretion. Thus, under para. 2.2 of the Code, it is the duty of prosecutors “..to make sure that the right person is prosecuted for the right offence….”. Prosecutors are there reminded that casework decisions “…taken fairly, impartially and with integrity help to secure justice for victims, witnesses, defendants and the public.” Para. 2.4 underlines that prosecutors must be “fair, independent and objective”; they must not be affected “by improper or undue pressure from any source” and must always act in the interests of justice. ii) Paras. 3 and 4, dealing with the decision to prosecute and the application of the two stage of the “Full Code Test” reinforce the operational independence of prosecutors. These stages are:(1) the evidential stage and

(2) the public interest stage: para. 4 of the Code. As is there made clear, unless prosecutors are satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge, the case (so far as it concerns that suspect or charge) “must not proceed, no matter how serious or sensitive it may be”. Where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest; in this jurisdiction (unlike some European jurisdictions) prosecution does not invariably follow acts which in law amount to a criminal offence: see, Lord Hughes JSC in R (Nicklinson) v Ministry of Justice

[2014] UKSC 38

;

[2015] AC 657

, at [269] and following. As Lord Hughes went on to say (at [271]):

“ ….The prosecutor is expected to exercise independent judgment in scrutinising all the myriad facts of each particular case put before him…..” iii) The Code further highlights that prosecutors are under a duty to review a case as it develops, taking into account, inter alia, what is known of the defence case: para. 3.6. Review is there described as a “continuing process”. iv) Para. 6 deals with the selection of charges and provides in terms (para. 6.2) that prosecutors may not always choose or continue with the most serious charge where there is a choice. Para. 6.5 obliges prosecutors to take account of any relevant change in circumstances as the case progresses after charge. v) Finally, para. 10 is of direct relevance for present purposes and provides as follows: “ Reconsidering a Prosecution Decision 10.1 People should be able to rely on decisions taken by the CPS. Normally, if the CPS tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But occasionally there are reasons why the CPS will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will restart the prosecution, particularly if the case is serious. 10.2 These reasons include: a) cases where a new look at the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision; …… ”

[33]For completeness, it may be noted that victims have a right to review police – as well as CPS – decisions not to prosecute. Although there are differences between the arrangements applying to different police forces, the ACPO National Policing Guidelines on Police Victim Right to Review (2015) (“the ACPO VRR”) set out a framework for police VRR schemes. Interestingly, the ACPO VRR contains a provision (para. 4.5 II), mutatis mutandis, in the same terms as para. 11(iii) of the VRR.

[34](5) Subsequent authorities: R v A (RJ)

[2012] EWCA Crim 434

;

[2012] 2 Cr App R 8

is the authority referred to in the amendment to para. 11(iii) of the VRR, introduced by the VRR 2016. The background concerned a wife’s conviction for perverting the course of public justice following her retraction of a true complaint of rape by her husband. The wife’s appeal was dismissed. Giving the judgment of the Court, Lord Judge CJ warned (at [80]) against “satellite litigation” in which the exercise of prosecutorial discretion was made subject to a judicial review or an argument seeking a stay of proceedings. When an argument seeking a stay of proceedings was advanced by reference to policy or guidance issued by the DPP, the Court (at [84]) emphasised the following matters:

“ …first, that the decision whether to prosecute or not must always be made by the CPS and not the court. The court does not make prosecutorial decisions. Secondly, provided 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. Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance. ”

[35]In the two cases before the Court in R(L) v DPP

[2013] EWHC 1752

; [2013] 177 JP 502, the CPS had taken the decision not to prosecute; the victims (or their relatives) sought judicial review of the CPS decisions; after commencement of those proceedings, the CPS had conducted an internal review (by a more senior prosecutor) of the decision not to prosecute. The renewed applications for judicial review were dismissed. Giving the principal judgment of the Divisional Court, Sir John Thomas P (as he then was) set out the applicable principles:

“ 3. 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 R v DPP, ex parte C [1995] 1 Cr App R 136, at pp. 140-1. 4. ….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. 5. In subsequent decisions….the courts have indicated that these applications will succeed only in very rare cases. 6. 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. 7. 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 borne in mind. 8. What is also important these days is that the Crown Prosecution Service has been moving to a new policy. As a result of …Killick…, 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 [i.e., the VRR] will be published shortly. …. 11. It is, I think, important in the light of this new procedure also to point out the following. 12. 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. 13. Second, if there has been a review in accordance with the procedure, then it seems to me that the prospect of success will, as I have said, be very small. ”

[36]At [16] – [18], Sir John Thomas P reiterated that the likelihood of judicial review proceedings succeeding after a review conducted by the CPS was “very, very small, given the constitutional position of the CPS”. At [43], he said this:

“ 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 in the public interest, it is right and proper that there should be a review….. 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. ”

[37]In R(S) v Crown Prosecution Service (DC)

[2015] EWHC 2868 (Admin)

;

[2016] 1 WLR 804

, the CPS had initially taken the decision not to prosecute the claimant, an alleged rapist; following a review pursuant to the VRR at the behest of the complainant, the CPS reversed its decision and charged the complainant. Thereupon, the claimant sought judicial review of the decision to prosecute. Permission to proceed was refused, with Sir Brian Leveson P (who gave the substantive judgment in the Divisional Court) observing (at [28]) that it was “….difficult to conceive any circumstance in which the type of decision made in this case [i.e., to prosecute] might be subject to successful judicial review”.

[38]In his judgment, Sir Brian Leveson P effectively applied the principles established by L. At [15], with respect, he neatly encapsulated them:

“ There is no doubt that decisions of the CPS are amenable to judicial review…. The potential grounds of challenge are, however narrow not least because of the recognition of the constitutional significance of its independence. Clearly, if a policy is unlawful, the courts will intervene. The same approach will be adopted if the CPS fail to act in accordance with its set policy or they reach a decision not open to a reasonable prosecutor. When considering such challenges, it is clear that they will succeed only in very rare cases….”

In this judgment too, a caution as to “satellite litigation” was expressed (at [20]).

[39]In the course of rejecting a submission somewhat far removed from the facts of the present case, Sir Brian Leveson P observed (at [17]) that “The [VRR] guidance is a lawful policy in its entirety”. In my view, this particular observation does not advance the argument before us; the matters here in issue were not before the Court in S.

DISCUSSION

[40]As it seems to me, the issues fall conveniently under the following headings: i) Was para. 11 (iii) of the VRR unlawful? (“Issue I”) ii) Is para. 11(iii) of the amended VRR 2016 unlawful? (“Issue II”) iii) Are the criteria transparent for exceptionally considering and conducting a review of a case falling within the para. 11(iii) exception? (“Issue III”)

[41]Before turning to these Issues, certain matters should be made plain. The importance of the CPS initiative in introducing the VRR is a given. As the then DPP said when the VRR was first launched it demonstrated how attitudes to victims had changed. In my view, the VRR facilitates the participation of victims in the CJS process and ensures that their interests are not overlooked. Moreover, if dissatisfied victims are to be persuaded to use the VRR rather than opt for judicial review (Killick, L), the VRR must furnish an effective right to review. I approach the Issues with these considerations well in mind.

ISSUE I: WAS PARA. 11 (iii) OF THE VRR UNLAWFUL?

[42]As will be recollected, Mr Squires submitted that para. 11(iii) of the (un-amended) VRR entailed an absolute bar on the CPS reviewing a decision not to bring charges against some (but not all) possible suspects; as such, the VRR was inconsistent with the Directive and/or Killick (supra) and was unlawful. This submission is accordingly put squarely under the heading of “unlawful policy”, discussed in L (supra) and thus within the narrow permissible grounds of challenge. Nonetheless, as explained in L, A (RJ) (supra) and S (supra), such claims face a very steep hurdle and “…will succeed only in very rare cases.” (L, at [5], [16] – [18]). In my judgment, this is not one of those very rare cases and this head of claim fails. My reasons follow.

[43]First, I am satisfied that the CPS did not interpret the VRR as depriving it of a discretion to review cases apparently falling outside the scope of the scheme. As is indisputable on the facts and incompatible with Mr Squires’ submission, a review was conducted; indeed and as already underlined, no challenge is advanced to the substance of the review’s conclusion, unfavourable to the Claimant. It follows that para. 11(iii) of the VRR did not involve an absolute bar on the CPS reviewing its own decision not to charge some (but not all) possible suspects. By itself, this conclusion is fatal to this head of claim (premised on there being an absolute bar) but I do not leave matters there.

[44]Secondly, Mr Squires’ submission requires the adoption of a literal approach to both Killick and the Directive. Building on the “right” given to victims to review decisions of the CPS not to prosecute, the argument focuses on the apparently unqualified language adopted. Thus, Killick (at [48]) is couched in terms of “a right”. Art. 11.1 of the Directive referred to “the right” and Art. 11.3 of the Directive speaks of the entitlement to “…request a review of any decision not to prosecute…” (italicisation added). It is contended that the limitation upon the scope of the VRR contained in para. 11(iii), serves to deprive victims of a (or the) right given to them by the Directive and at common law. Such deprivation is unjustified and cannot be saved by the provision in Art. 11.1 of the Directive that “procedural rules” are to be determined by national law.

[45]For my part, I am unable to accept that a literal approach is warranted, either to Killick or the Directive. As already observed, Killick says nothing as to the scope of the right to review and is not at all prescriptive in that regard; no argument as to the scope of the right to review was before the Court. So too, the Directive is expressed at a high level of generality and needs to be read as such. It cannot conceivably be read as furnishing an unlimited across the board entitlement – and (as already observed) makes provision for variants in national law (for example, the final sentence of Recital (43) and national procedural variants (Art. 11.1)), together with substantive “carve-outs” (Art. 11.5). In passing, procedural variants may well themselves generate substantive consequences. Provided the VRR furnishes an effective right to review, which it plainly does (see para. 9 thereof), different views can be taken on the optimum scope of the scheme – without coming close to establishing that the limitation on scope contained in para. 11(iii) involves an unlawful policy, inconsistent with either Killick or the Directive.

[46]Thirdly and most fundamentally, a general right to review all cases where charges were brought against some but not all suspects would both significantly undermine operational prosecutorial discretion and have potentially serious resource implications for the CPS. It is right to increase the involvement of victims in the CJS; it would be unhealthy and wrong to alter in this way the appropriate balance struck between the various interests involved in a prosecution. Further, the consequences of extending the right of review in this fashion on a generalised basis would have grave practical consequences for the efficient operation of the CJS. These consequences are of such a nature as to invite a destructive critique of the starting premise. It is, moreover, unnecessary to take this step provided there is a discretion for the CPS to review cases falling outside the scope of the VRR scheme where an initial decision has been taken not to prosecute. By way of elaboration: i) In my judgment the question of which suspects to proceed against is a paradigm case for decision-taking by an independent prosecutor. Examples abound; consider multi-handed fraud, affray (or other public order offences) or drugs cases. Decisions here as to which suspects to charge readily fall within the sphere of prosecutorial discretion, involving as they do “…a multiplicity of interlocking circumstances....” (A(R), supra, at [84]), calling for the exercise of “…independent judgment in scrutinising all the myriad facts of each particular case…” (Nicklinson, supra, at [271]). Such independent judgment, a matter of constitutional significance as emphasised in the authorities, should be safeguarded rather than subjected to a generalised right of review – and the defensive considerations which can so easily be the result. ii) Extending the VRR to provide a generalised review in respect of which suspects had been charged, would be a significant widening of the scheme. Mr Squires was correct to say that there was no evidence of the resource implications of such an expansion but, with respect, the potential for a significant increase in the number of reviews sought is self-evident. It is the need to undertake such reviews rather than their outcome which is resource intensive – and, in the case of the CPS, would impact on an organisation where there is already significant pressure on resources. Conversely, as there will be many cases here where opinions may legitimately differ between experienced prosecutors, the increased demand on resources is unlikely to be matched by an increased success rate in the reviews thus conducted; intuitively, any likely cost/benefit ratio is unpromising, so giving rise to proportionality concerns. There must also be apprehension about diverting CPS resources from prosecuting to the conduct of an increased number of reviews. iii) The consequences for the wider CJS would be stark. Once a suspect is charged with an offence, the Criminal Procedure Rules (“CPR”) oblige all parties to act expeditiously and efficiently to dispose of cases. The CPR are reinforced by initiatives such as Transforming Summary Justice (“TSJ”), in the magistrates’ court and Better Case Management (“BCM”) in the Crown Court – aimed, inter alia, at eliminating delay. If, however, para. 11(iii) of the VRR was removed, there is a risk of cases grinding to a halt while a review was conducted of a decision not to charge one or more suspects and a decision was awaited as to whether additional defendants were to be added to the proceedings. As Mr Squires recognised, such delay would be inimical to the interests of justice. With respect however, his solution, contemplating separate trials, does little to assuage concerns and carries obvious disadvantages and risks. In the context of the system of jury trial in this jurisdiction, the prospect of successive trials, repeated cross-examination and different juries (for example in “gang rape” or “historic sex” cases) cannot be viewed or accepted with equanimity. iv) The limitations on scope contained in para. 11(iii) fall appropriately within the scheme which can be discerned of the VRR as a whole. The essence of the “qualifying decisions” contained in para. 9 is that they result in no prosecution at all. Paras. 11 (i), (ii), (viii) and (ix) contain exclusions for matters which pre-date the VRR, do not reach the CPS, reflect a carve-out in the Directive or are victim-related; these paragraphs do not advance the present argument one way or another. However, paras. 11 (iv) – (vii) and, for that matter para. 11(x) (introduced by the VRR 2016), all involve deferring to and safeguarding the operational judgment and discretion of prosecutors. The broad dividing line in the scheme is thus between cases where there is a decision not to prosecute at all (para. 9) and those where there is a prosecution but operational prosecutorial decisions are taken, limiting the scope of the prosecution (paras. 11(iii) and 11(iv) to (vii)) or, as in para. 11(x), not to pursue litigation further. In this fashion, the VRR, while highlighting the interest and participation of victims, respects the balance that needs to be struck between the three interests in the prosecution, those of the state, the defendant and the victim (Killick, at [48]). Removal of the limitations found in para. 11(iii) would risk disturbing that balance. v) It is fair to record that Mr Squires accepted the lawfulness of paras. 11(iv) – (vii) inclusive, on the ground that prejudice to an ongoing trial was to be avoided. However, that pragmatism, welcome though it is, sits uneasily with the underlying logic of his argument – and it is also to be noted that paras. 11(iv) – (vii) are not confined to the trial stage; they bite pre-trial as well. vi) Additionally, if Mr Squires was otherwise right, it is unclear why his submission should stop with para. 11(iii)’s treatment of suspects. Forensically that would be unattractive and Mr Squires drew back from suggesting that the logic of his submission required extension to that part of para. 11(iii) which deals with the choice of charges. It is not, however, apparent (on the premise of his argument) why a decision as to charges should be immune from review (subject to the exercise of a discretion in an exceptional case) if a decision as to suspects to be charged was not. vii) If the interests of justice required a generalised expansion of the VRR scheme, then, doubtless, they would enjoy priority over the practical concerns highlighted above. Provided, however, the VRR does not preclude the CPS exercising a discretion in an exceptional case to review a decision not to prosecute even in a case otherwise falling outside the scheme, then “hard cases” can be catered for – and injustice towards a victim, actual or perceived, can be addressed – without the need for generalised expansion of the scheme. As already indicated, such a discretion did exist under the VRR current at the time with which this claim is concerned.

ISSUE II: IS PARA. 11(iii) OF THE AMENDED VRR 2016 UNLAWFUL?

[47]Under this heading, Mr Squires submitted that the amendment to para. 11(iii), by way of the insertion of the footnote set out above, did not save it. Even with the footnote setting out in terms the discretion to include in the VRR scheme a case falling within the para. 11 exceptions, the VRR remained unlawful. The reason advanced was that the footnote was the wrong way round; the right course was to recognise that there was generally a right to a review but to indicate that there might be exceptional circumstances in a particular case where the review could not be fairly or proportionately conducted.

[48]I respectfully disagree. Had I entertained doubts as to the lawfulness of the un-amended VRR (which I do not), they would have been put to rest by the footnoted amendment incorporated in the VRR 2016. For my part, I welcome the footnote as it sets out in terms the discretion which the CPS regarded itself as enjoying and which I have held it does enjoy – and in such matters the clarity of an express provision is welcome.

[49]As it seemed to me, this head of argument reflected something of a shift in the Claimant’s position. Mr Squires’ starting point – in respect of the un-amended VRR – was an objection to an alleged absolute bar on reviewing a case falling within the para. 11 exceptions. Plainly, the inclusion of an express discretion to review such cases in the amended VRR 2016, deprives the “absolute bar” argument of any force. The emphasis now shifted to the submission recorded above, namely, that the footnote was the wrong way round; what was instead required was a general right to review subject to a discretion in exceptional circumstances to refuse a review.

[50]In my view, the amended VRR 2016 strikes the right balance or, which suffices, there is nothing unlawful in the balance thus struck. First, as made clear in the VRR itself (at para. 32), it is important that those concerned should be able to rely on CPS decisions not to prosecute as being final. Those decisions should not ordinarily be revoked. There is thus nothing inappropriate, still less unlawful, in the “rule” being no review of a decision not to prosecute some (but not all) suspects within para. 11(iii) - with the discretion to revisit a decision of this nature constituting the “exception”.

[51]Secondly and in general, a wide margin of discretion attaches to an independent prosecutorial decision not to proceed against some suspects. As it seems to me, the burden must be on a victim seeking, exceptionally, to challenge such a decision by way of a review under the VRR. For reasons already discussed under Issue I, I am unable to accede to a claim for a generalised right of review, not limited by para. 11(iii) and subject only to an exceptional, exclusionary discretion. Those objections to the claim apply, if anything, a fortiori, to the claim advanced under this heading in respect of the amended VRR 2016. ISSUE III: ARE THE CRITERIA TRANSPARENT FOR EXCEPTIONALLY CONSIDERING AND CONDUCTING A REVIEW OF A CASE FALLING WITHIN THE PARA. 11 (iii) EXCEPTION?

[52]To the extent that this issue remained in contention, it admits, in my judgment, of a short and affirmative answer. My reasons are these.

[53]First, the general rule is and must be that the CPS will not readily resile from a prosecutorial decision, within para. 11(iii) of the VRR, not to proceed against some suspects. Understandably, therefore, para. 11(iii) of the VRR 2016 as amended, requires the presence of “very exceptional circumstances” for such a case to be considered for review under the VRR.

[54]Secondly, guidance as to the general principles to be applied when making decisions about prosecutions is contained in the Code, a public document - as already underlined. Those principles, including, not least but not only, para. 10 of the Code (set out above), plainly serve to inform a consideration of whether there are very exceptional circumstances for a case falling within para. 11(iii) of the VRR to become the subject of a review.

[55]Thirdly, it would be futile to seek a more precise definition of what may constitute exceptional circumstances. If anything, a search for greater precision may well be counter-productive.

[56]It follows, in my judgment, that provided the exceptional discretion of considering a review under the VRR of a case falling within para. 11(iii) is exercised in accordance with the Code, then the criteria are transparent and, for that matter, public and in no sense arbitrary.

OVERALL CONCLUSION

[57]On the facts of this matter, it is impossible not to have sympathy for the Claimant. Nonetheless, so far as these proceedings are concerned and, as much earlier recorded, there was no question of the Claimant herself obtaining substantive relief - there being no challenge to the conclusion of the review undertaken by the CPS and the reconfirmation of the decision not to prosecute FC.

[58]Despite my reservations as to the Claimant’s standing and the academic nature of the proceedings so far as she was concerned, the claims for Judicial Review persisted with on her behalf have nonetheless been considered on their merits. In my view and for the reasons given in respect of Issues I, II and III, they all fail and should be dismissed. For my part, I am amply satisfied that para. 11(iii) of the VRR, both un-amended and as amended in the VRR 2016, is not unlawful. Furthermore, the criteria for exercising the exceptional discretion to consider a review under the VRR of a case falling within para. 11(iii), are transparent and, for that matter, public and in no sense arbitrary. Mr

Justice Nicol :

[59]I agree.