Purvis, R (On the Application Of) v Director of Public Prosecutions [2018] EWHC 1844 (Admin)

[2018] EWHC 1844 (Admin)Case No CO/2927/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/07/2018
Before
LORD JUSTICE HOLROYDEMRS JUSTICE ANDREWS DBE
Between
THE QUEEN on the application of DOMINIC PURVISClaimantDIRECTOR OF PUBLIC PROSECUTIONSDefendant
Philip Rule (instructed by Kesar and Co) for ClaimantBen Douglas-Jones QC (instructed by CPS ARU) for DefendantHearing Hearing dates: 9th May 2018
JUDGMENT
[1]In October 2015 Dominic Purvis (to whom we shall refer as “the claimant”) was convicted of offences of sexual assaults upon children, making and distributing indecent images of children, and breach of notification requirements. He is currently serving a sentence of imprisonment for those offences. He made a formal complaint to the Devon and Cornwall Constabulary about the conduct of an officer involved in the investigation of those offences, DC Mark Uren. He seeks judicial review of the decision of the Crown Prosecution Service (“CPS”) not to prosecute DC Uren for offences of perjury and/or misconduct in a public office. This is the judgment of the court, to which we have both contributed.[2]The criticisms of DC Uren’s conduct relate in particular to his dealings with an adult witness to whom one of the young victims of the claimant’s offending had made a relevant complaint. In submissions to this court, the witness was referred to as “JH”. We will continue to refer to her in that way. The victims of the claimant’s offending have the protection of the provisions of the Sexual Offences (Amendment) Act 1992, with the result that, during their respective lifetimes, no matter shall be included in any publication if it is likely to lead members of the public to identify any of them as the victim of those offences. Reporting of JH’s name would be likely to lead to the identification of one of the victims, and so would frustrate the order made in the criminal proceedings. We accordingly direct in these proceedings, pursuant to CPR 39.2(4) and section 11 of the Contempt of Court Act 1981, that JH shall not be identified in any publication. The Court has received no objection from the media to this course being taken, and we regard it as a proportionate step in the interests of justice.[3]The claimant, who until recently has been acting in person, has made a number of procedural applications which this court must resolve. His grounds of claim give rise to a number of issues. The defendant has responded to those grounds and, recently, has sought permission to make an amendment which would raise an issue as to the jurisdiction of this court. We think it will best elucidate matters if we begin by summarising the relevant facts as to DC Uren’s conduct, and then summarise the internal police disciplinary investigation of DC Uren and the decision not to prosecute him, before turning to the procedural history and the issues raised in these proceedings.

The facts:

[4]On 12th February 2014 DC Uren saw JH, and took from her a statement of her evidence. As is often the case, he did so in manuscript. When he had done so, JH read the statement and signed it as correct. JH referred in her statement to two relevant events, the dates of which were said to be “Thursday 2nd June 2013” and “Friday 03rd June 2013”.[5]In accordance with usual practice, DC Uren sent the manuscript statement to the relevant police department (the Criminal Justice Unit: “the CJU”) so that it could be typed up. The typescript reproduced the dates stated in the manuscript original.[6]On 19th March 2014 JH telephoned DC Uren to tell him that she had made a mistake about the dates. In a statement which she later made describing this telephone call, JH said that she had initially told DC Uren that the events occurred on 4th and 5th June 2013, but had subsequently realised that the correct dates were 4th and 5th July 2013. She asked DC Uren to adjust her statement.[7]In response to that telephone call, DC Uren changed the two relevant dates in the manuscript original witness statement. He did so by striking through the word “June” and inserting the word “July”. He placed a small “x” in the margin adjacent to each of those two alterations.[8]The trial of the claimant began on 27th October 2014. Prosecuting counsel was not attended by any representative of the Crown Prosecution Service (“CPS”). DC Uren was actively involved in assisting prosecuting counsel with a range of matters at court, including a number of matters which should have been dealt with by a representative of the CPS if one had been present.[9]On 30th October 2014, prosecuting counsel spoke to DC Uren about JH, who had not yet been called to give her evidence. A statement later made by prosecuting counsel indicates that during this conversation, DC Uren told him that he had altered the original statement by replacing “June” with “July”. Counsel, quite rightly, told DC Uren that he should not have altered the original statement and should have taken a further statement from JH. Because the original statement had been altered, he suggested that DC Uren should himself make a statement, setting out what he had done. Prosecuting counsel, again quite rightly, informed defence counsel of this. Both counsel saw the original manuscript witness statement and saw that it had been amended by changing “June” to “July”.[10]At about 11.30am that day, DC Uren made a manuscript statement in which he referred to his telephone conversation with JH. He stated that she had told him she had made a mistake, and that the correct dates were 2nd and 3rd July 2013. He said that he had “adjusted her statement” and resubmitted it to the CJU.[11]Later the same day, DC Uren made a further witness statement, this time in typescript, which he gave to prosecuting counsel. This statement was made of his own initiative, and not as a result of any suggestion made by counsel. DC Uren stated that in the telephone conversation, JH had told him that “the 02nd of July 2013 was wrong, the correct date was Thursday 4th July 2013” and that “the 03rd of June 2013 was an incorrect date, the correct date was Friday 05th July 2013. I adjusted the statement accordingly”. He continued:
“On my statement provided at approximately 1130 hours on Thursday 30/10/14 I detailed that JH had stated the dates were 02nd and 03rd July 2013, this was a mistake by myself. The correct dates should have been as detailed above (04th July 2013 and 05th July 2013).”
[12]When giving that typed statement to prosecuting counsel, DC Uren also gave him the original manuscript witness statement of JH. This had now been further altered at the material points by striking through “2nd” and inserting “4th”, and by striking through “03rd” and inserting “05th”. Thus the manuscript statement which had originally shown the relevant dates as 2nd June and 3rd June 2013, now showed those dates as 4th July and 5th July 2013.[13]JH attended court to give her evidence on 3rd November 2014. It was then that she made the statement, to which we have referred, giving her account of her telephone conversation with DC Uren.[14]Both prosecution and defence counsel were understandably concerned about these events, and rightly raised them with the learned trial judge. The decision was taken that there should be a voir dire in which DC Uren would give evidence to the judge, in the absence of the jury, explaining the relevant events. DC Uren accordingly gave evidence on oath. He told the judge that he had only altered the manuscript witness statement of JH on one occasion, when he had altered the dates from 2nd and 3rd June to 4th and 5th July respectively, and believed that he would have sent a photocopy of the amended witness statement to the CJU for typing. He denied that there had been any intermediate stage at which the witness statement had been amended to show the dates of the 2nd and 3rd July 2013. He maintained that denial even when it was put to him, in cross examination, that both counsel had seen the statement in that form.[15]That evidence had the effect of placing both counsel in the position of witnesses of fact as to the precise sequence of events concerning the amendments to JH’s statement. As a result, the trial (then in its fifth day) could not continue. The jury was discharged. The claimant was retried at a later date, and was convicted of the offences to which we have referred.[16]As a result of the collapse of the first trial, and of a report submitted by prosecuting counsel, the matter was referred to the Professional Standards Department of the Devon and Cornwall Constabulary on 7th November 2014. At about the same time, by a letter dated 6th November 2014, the claimant made a formal complaint about the conduct of DC Uren, alleging that he had tampered with evidence and committed perjury. The investigation carried out by the Professional Standards Department found no record that any amended version of JH’s witness statement had been submitted by DC Uren to the CJU or to the CPS. However, the report compiled by the investigating officer noted that it was not uncommon for documents sent to the CJU not to be received by the CPS, and concluded that there was “no reliable way that it can be verified” whether DC Uren had submitted the amended witness statement to the CJU.[17]The report of the investigating officer recorded that DC Uren had sole responsibility for all aspects of the complex investigation into the claimant, which had generated a large amount of evidential material, and that he had undertaken extra work and responsibilities which contributed to his not being thorough in taking a further witness statement from JH when she informed him of the mistake as to dates. The investigating officer took the view that DC Uren’s actions were mistakes rather than misconduct, and had been contributed to by the exceptional pressures he encountered during the enquiry and through the trial. The report, dated 1st December 2014, concluded with the following:
“I recommend that [the claimant’s] complaint against the police is upheld in respect that DC Uren failed to follow correct procedure when amendments are made to witness statements and that the information he provided to the court was misleading, but this was not an intentional or malicious act to pervert the course of justice. I recommend that DC Uren should be referred to formal procedures under the Police (Performance) Regulations 2012. His performance fell far below what is expected, making repeated mistakes, the consequences have been serious, and will still be scrutinised in the forthcoming new trial.”
[18]DC Uren was subsequently served with a formal notice of investigation in accordance with the 2012 Regulations. The Independent Police Complaints Commission (“IPCC”) directed that a local investigation be carried out by the Devon and Cornwall Constabulary. In the course of that investigation, DC Uren submitted a written response to the allegations against him, in which he no longer maintained that he had only altered the manuscript witness statement of JH on one occasion, changing both the month and the dates at the same time: he said that, although that had previously been his honest belief, he now believed that he had erroneously only changed the month from June to July after JH’s telephone call in March 2014, and had at that stage left the dates unaltered as the 2nd and 3rd. He therefore accepted that in this respect his evidence on the voir dire had been factually incorrect, though he emphasised that he had not intended to mislead the court. He accepted that he should not have amended the original statement in the way he did, and that he should have taken a further statement from JH. He added that he wished to make clear – “… that my intention when changing the dates in the statement was only to alter the statement to reflect the true and accurate evidence of the witness. There was no advantage to the investigation for the dates provided by the witness to be anything other than what she recollected.”[19]The investigating officer, in a report dated 5th November 2015, noted that DC Uren no longer disputed that he had made further alterations to JH’s witness statement at court, but maintained he had no recollection of doing so. The investigating officer observed that the further alterations had been made following a conversation with prosecuting counsel, and therefore in the knowledge that the alteration previously made had not been correct procedure. The investigating officer concluded:
“To then make further alterations to the original witness statement of [JH] by altering the numerical dates illustrates a deliberate act in the knowledge that to do so was incorrect procedure and I conclude was done with a motivation to avoid personal and “professional embarrassment” with no regard to the integrity of the evidence. DC Uren’s assertion that he was “professionally embarrassed” suggests a conscious thought process and is at odds with his statements of having no recollection of making the second alteration. During the voir dire it was specifically put to DC Uren by [defence counsel] that he had made a further alteration to [JH’s] witness statement on 30th October 2014, only four days previously. I do not consider his account is credible that he had no recollection of this when he gave his evidence to the court. He was asked about this point a number of times and remained resolute he had only altered her statement on one occasion around March 2014. DC Uren maintained this until his written response dated the 9th April 2015. I conclude that DC Uren lied to the court whilst under oath. Also during the voir dire DC Uren gave evidence that he had submitted a copy of [JH’s] witness statement with the date alterations to the CJU. I concluded following an examination of every item of additional evidence submitted to the CJU that this was also a lie whilst under oath.”
The investigating officer accordingly recommended that the claimant’s complaint be upheld, and that there was a case for DC Uren to answer for gross misconduct in four respects: altering the original witness statement of JH in March 2014 in a manner which was contrary to procedure; further altering the witness statement at court on 30th October 2014, in a manner which again was contrary to procedure; lying on oath during the voir dire by saying that he had only altered the original witness statement on one occasion, in March 2014; and lying on oath during the voir dire by giving evidence that he had submitted a copy of the amended statement to the CJU.[20]A misconduct hearing pursuant to the 2012 regulations was held in April 2016. The function of such proceedings is not primarily punitive, but to set standards for police service and to be open and transparent in doing so. In a report dated 13th April 2016 the panel recorded that DC Uren had always maintained that he altered the witness statement in order properly to reflect the evidence of JH, though he admitted he should have made the changes by another method. He said that he had made the “x” marks in the margin of the witness statement with a view to asking JH to sign the alterations. The panel found him to be a credible witness on that specific point, and generally. The panel went on to record that DC Uren had admitted to them that he altered the original witness statement on two separate occasions and admitted that he had made statements which were untrue, but denied that he had made them knowing them to be untrue. He admitted that he was guilty of misconduct, but denied the allegation of gross misconduct. The panel accepted that at the material times DC Uren was in a “highly challenging position” as a result of the busy and difficult time at court. The panel found that DC Uren had not made statements which he knew to be untrue and found that DC Uren had not been dishonest in giving evidence. It concluded that the appropriate disciplinary action was to impose management advice.[21]In following through the course of the internal police investigations, we have travelled past the date of the decision challenged in this judicial review claim. We now focus on that important decision.

The decision not to prosecute:

[22]The Director of Public Prosecutions (“DPP”) has issued a Code for Crown Prosecutors (“the Code”), which gives guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. The Code emphasises, at paragraph 2.1, that the decision to prosecute or recommend an out of court disposal is a serious step that affects suspects, victims, witnesses and the public at large and must be undertaken with the utmost care. In deciding whether to prosecute a person, prosecutors are required to apply the Full Code Test, which has two stages. First, the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect on each charge. Secondly, in every case where there is sufficient evidence to justify a prosecution, the prosecutor must go on to consider whether a prosecution is required in the public interest. Paragraph 4.8 of the Code explains that there is no rule that a prosecution will automatically take place once the evidential stage is met. It will usually take place unless the prosecutor is satisfied that there are public interest factors tending against a prosecution which outweigh those tending in favour. Paragraph 4.9 requires the prosecutor to consider all the relevant public interest factors for and against prosecution, so as to “form an overall assessment of the public interest”. Paragraph 4.11 states:
“It is quite possible that one public interest factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed.”
[23]Paragraph 4.12 sets out, at (a)-(g), a non-exhaustive list of questions to be considered by the prosecutor in making the public interest decision. The questions include the following: a) How serious is the offence committed? The Code indicates that, the more serious the offence, the more likely it is that a prosecution is required. b) What is the level of culpability of the suspect? The code indicates that, the greater the suspect’s level of culpability, the more likely it is that a prosecution is required. c) What are the circumstances of and the harm caused to the victim? The Code indicates that the circumstances of the victim are highly relevant and that, the greater the vulnerability of the victim, the more likely it is that a prosecution is required. f) Is prosecution a proportionate response? The Code indicates that prosecutors should consider whether prosecution is proportionate to the likely outcome.[24]The decision whether to charge DC Uren with any offence was made by a Crown Prosecutor (“the Reviewing Lawyer”) on 11th September 2015. Curiously, the court was not provided with any statement of evidence by the Reviewing Lawyer, and her written decision was not at first included in the bundle. Instead, the court was provided with a statement by a specialist prosecutor in the Appeals and Review Unit of the CPS Special Crime and Counter Terrorism Division, who had reconsidered the material considered by the Reviewing Lawyer and quoted extensive passages from the Reviewing Lawyer’s decision. In the course of the hearing, however, Mr Douglas-Jones took instructions which resulted in his providing us with a form MG3 in which the Reviewing Lawyer stated her charging decision of 11th September 2015. In what is clearly a detailed charging decision, the Reviewing Lawyer summarised the relevant evidence, including quoting passages of what DC Uren had said at court (during the voir dire hearing) and during the internal disciplinary proceedings. She summarised the alleged wrongdoing in these terms:
“DC Uren appears to lie on oath about submitting the first amended statement to [CJU] and then repeating on oath three times that there was only one amendment to [JH’s] statement and not two.”
She considered what would need to be proved by the prosecution in relation to three potential charges: attempting to pervert the course of justice; misconduct in a public office; and perjury. She said that the first of those potential charges – “…can be discounted as the acts undertaken by Mark Uren were in essence to avoid an injustice in that he wished to correct the evidence in a statement to truthfully reflect the witness’s recollection.” As to perjury, she noted that the contentious issues would be whether DC Uren made a false statement deliberately, rather than inadvertently or by mistake, and whether he knew it to be false or did not believe it to be true. She commented:
“DC Uren maintains he made a mistake but it appears from his answers in police interview that he was embarrassed that he had made a mistake in (a) not correctly taking a second SOE from [JH] and (b) then actually getting it wrong. This of course is at odds with [prosecuting counsel’s] recollection that he only saw the amendment to the month when presented with the statement in the morning and that [CJU] had no record of any submission of an amended statement. Embarrassment suggests a conscious recognition of the situation you are in and therefore objectively you knew what you were doing/saying.”
As to misconduct in a public office, the Reviewing Lawyer noted that the threshold for prosecution was a high one and that the offence involved an abuse of the public’s trust in the office holder. Motive was also a relevant consideration. She expressed the view that lying upon oath by a police officer would constitute an abuse in the public’s trust of officers. She also questioned whether DC Uren’s failure to supply the amended statement to the CPS before the trial was itself a deliberate neglect of his duty which would materially affect the strength of the evidence in the case. She repeated her observation that DC Uren’s feelings of embarrassment suggested rational thought about his predicament.[25]The Reviewing Lawyer concluded that the evidential stage of the Full Code Test had been met for charges of perjury and misconduct in a public office. She therefore went on to consider the public interest in prosecution. As to that, she expressed her reasoning and her conclusion as follows:
“The motivation for DC Uren’s actions is an important part in considering the PI in the case and also what additional penalty in addition to inevitable gross misconduct proceedings against the officer will ensue. The actions were born out of a (belated) desire to ensure the evidence was not incorrectly given before a court. It is argued that when [JH] was called that she would have corrected the mistake herself but that would have tainted the whole prosecution case. The inevitable retrial would have had to have occurred in any event. Although I am unable to prejudge the outcome of the internal disciplinary process of the Constabulary I am of the opinion that the high evidential test for two serious criminal offences has been made out. The consequences for DC Uren would be demotion or more probably dismissal. What purpose would a criminal trial serve in these circumstances? In considering paragraph 4.12 of the Code, especially para b, c and f, I have concluded that a prosecution is not a proportionate response to this offending, in light of the potential alternative personal outcome for the suspect.”
The Reviewing Lawyer therefore decided that there should be no prosecution because the public interest stage of the Full Code Test was not met.[26]It will be appreciated that at the time when that charging decision was made, the disciplinary proceedings against DC Uren had not been concluded. Hence the indication by the Reviewing Lawyer that she could not prejudge the eventual outcome of the internal disciplinary process.[27]We have not set out all the details contained in the documents before us, but we have summarised the facts sufficiently for present purposes. We therefore turn to consider the course of the judicial review proceedings. The judicial review proceedings:[28]The Claimant, at that stage acting in person, issued his claim for judicial review on the 31st May 2016. He brought his claim against two defendants: the DPP (initially, in error, named as the Chief Crown Prosecutor for the relevant area) and the Chief Constable of Devon and Cornwall Constabulary. Permission to proceed against the second defendant was refused, and we need say no more about it. The claimant contended that the defendant DPP had acted “irrationally, absurdly and possibly illegally” by failing to prosecute evidenced crimes by a serving police officer and had “sought to perpetuate the ‘whitewash’ and misconduct by withholding detailed evidence from the claimant in his trial”. The claimant set out in strong terms a summary of DC Uren’s conduct, complained that the findings of the internal investigation had deliberately been withheld until after the claimant had been convicted at his retrial, and said:
“By the evidence so far disclosed the CPS accept that there is sufficient evidence to prosecute for these serious crimes but claim it is not in the public interest. This is an officer who has perjured himself on several occasions over several documents and oral statements in this case alone (without considering any other case he has conducted). It is absurd, irrational and unreasonable that the CPS/police have not prosecuted and dismissed this officer despite overwhelming evidence. These are serious criminal offences.”
[29]At the same time, the claimant applied for urgent interim relief (in the form of an order suspending DC Uren from duty) and for urgent disclosure. Those applications were refused by William Davis J on 9th June 2016, and we need say no more about them.[30]On 7th July 2016 the defendant acknowledged service and filed summary grounds for contesting the claim.[31]On 23rd December 2016 Nicol J refused permission to apply for Judicial Review. He referred to case law indicating that, whilst the decision not to prosecute is open to judicial review, the DPP is an independent prosecutor and such a challenge will only succeed in very rare circumstances. Nicol J concluded that it was not reasonably arguable that the decision not to prosecute PC Uren was irrational.[32]The claimant then made an application for disclosure, which was refused by Collins J on the 13th March 2017.[33]On 24th March 2017 a renewed application by the claimant for permission to apply for judicial review was heard by Wyn Williams J. The claimant appeared in person, via a video link from prison. The Chief Constable was represented by counsel, but there was no appearance by the DPP. Wyn Williams J observed that cases are rare in which a decision not to prosecute can successfully be challenged by way of judicial review. He acknowledged that “some prosecutors, perhaps many, would have taken a different view” when applying the public interest test. He was not however persuaded that the Reviewing Lawyer had arguably misapplied the public interest test. He therefore refused the renewed application.[34]The claimant applied to the Court of Appeal for permission to appeal against the refusal of permission. That was an application which, in accordance with normal procedure, was considered on the papers by a single Lord Justice, without an oral hearing. The court’s powers included power either to grant permission to appeal or to grant permission to apply for judicial review. The claimant was successful. On 9th January 2018 Lewison LJ granted permission to apply for judicial review against the DPP, on the grounds that it was properly arguable that the decision not to prosecute DC Uren(a) was made by the wrong person, in the light of the CPS guidance about allegations against the police;(b) failed to consider the seriousness of the offence, namely perjury committed by a serving police officer;(c) failed to take into account the positive public interest in prosecuting corrupt police officers; and(d) wrongly considered that internal disciplinary proceedings, normally held in private, were an adequate substitute for a public trial. Lewison LJ directed that the application for judicial review should be returned to the Administrative Court.[35]The claim was listed to be heard on the 9th May 2018. In advance of that date, a number of applications were made, to which we must now refer.[36]On 26th January 2018 the claimant (still acting in person) made an application for disclosure. It has not yet been determined. Having considered it, we find that it is no more than a repeat of the application which the claimant had made almost a year earlier and which had been refused by Collins J on 13th March 2017. No relevant change of circumstances was suggested. The application was accordingly without merit, and we dismiss it.[37]On 19th April 2018 the claimant made another application for disclosure, this application relating to all conduct records and antecedents of DC Uren. A specialist prosecutor reviewed the material, and a number of documents were disclosed. At the hearing we were told by Mr Douglas-Jones QC, who appeared for the defendant, that he had personally reviewed all the disclosed material and was satisfied that no other documents fell to be disclosed. In the light of the evidence of the prosecutor who conducted the review, and of Mr Douglas-Jones’ assurances, we are satisfied that the defendant has fully complied with the duty of disclosure. The claimant’s application has accordingly been overtaken by events, and all relevant documents have been disclosed. We therefore dismiss the application.[38]We should add for completeness that Mr Rule, who had only recently been instructed and who appeared for the claimant at the hearing before us, was unaware of those outstanding disclosure applications and had no instructions about them.[39]Also on 19th April 2018, the defendant applied for permission to amend the Detailed Grounds for Contesting the Claim which had been lodged at an earlier date. The application related in part to some minor and uncontroversial amendments, about which we need say no more. The substance of the application was, however, an application to add a ground that the decision of Lewison LJ granting permission to apply for judicial review – “… is void, as there is no jurisdiction for the Court of Appeal Civil Division to grant permission to appeal after the refusal of the grant of permission following an oral hearing in a criminal cause or matter.” The claimant objected to that proposed amendment. He applied for an adjournment of the hearing, contending (amongst other things) that there was insufficient time for him to be prepared to meet this new issue. That application was refused by the court on 3rd May 2018, without prejudice to the outcome of the application for permission to amend, which would be dealt with at the full hearing.[40]So the matter came before us on 9th May 2018. We indicated at the outset of the hearing that we would hear submissions on all matters, and would give our decision on all matters in our reserved judgement. It is convenient for us to consider now the application by the defendant for permission to amend, and then to turn to the other issues arising in the judicial review claim.

The defendant’s application for permission to amend:

[41]By CPR rule 52.8, where permission to reply for judicial review has been refused at a hearing in the High Court (in this case, the hearing before Wyn Williams J), an application for permission to appeal may be made to the Court of Appeal. As we have noted, on such an application, the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review: see CPR 52.8(5). In that event, the judicial review case will proceed in the High Court unless the Court of Appeal orders otherwise.[42]However, by section 18 of the Senior Courts Act 1981 – “1). No appeal should lie to the Court of Appeal a.) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter… ”. The relevant provisions of the Administration of Justice Act 1960 do not apply to the circumstances of this case. By section 151 of the Senior Courts Act 1981, a “cause” is defined as “any action or any criminal proceedings” and a “matter” is defined as “any proceedings in court not in a cause”. a.) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter… ”.[43]Mr Douglas-Jones submitted to us that the recent decision of a Divisional Court in Belhaj v DPP [2017] EWHC 3056 Admin is authority for the proposition that a decision of the DPP to institute, or not to institute, criminal proceedings is a decision in a criminal cause or matter within the meaning of section 18 of the 1981 Act. He submitted, accordingly, that Lewison LJ, sitting as a judge of the Court of Appeal Civil Division, had no jurisdiction to determine the claimant’s application for permission to appeal against the decision of Wyn Williams J.[44]In explaining why that point had first been raised in an application for permission to amend made only a short time before the substantive hearing, Mr Douglas-Jones said that the significance in this context of the complex judgment in Belhaj was not identified when the Detailed Grounds were settled, and submitted that it was in the interests of justice for permission to be granted to make the amendment.[45]In opposing the application for permission to amend, Mr Rule submitted that there was no good reason for such a late amendment of the pleading. He pointed out that the defendant was a party in the case of Belhaj, and that the court’s decision in that case was handed down on 1st December 2017. No application for permission to amend was made at that time. Nor was it made promptly after 7th February 2018, when the court notified the parties of the hearing date. In those circumstances, the claimant was heavily prejudiced by the timing of the application, and had insufficient time to research the case law on the meaning of “a criminal cause or matter”- a phrase which in Belhaj was said to be capable of having different meanings in different statutory provisions. Mr Rule submitted that the decision in Belhaj does not preclude the jurisdiction of the Court of Appeal Civil Division in this case, which concerns the decision of the Reviewing Lawyer as to whether or not to commence a prosecution. In any event, he submitted, the decision of Lewison LJ cannot be a nullity, or “void”. He submitted that, consistently with the defendant’s argument, a serious question arose as to the status of the decision made at an oral hearing by Wyn Williams J: if this application for judicial review is a criminal cause or matter, he submitted, then it should have been heard by a Divisional Court and not by a single High Court Judge.[46]The Supreme Court has very recently determined an appeal against the decision of the Divisional Court in Belhaj: see Belhaj and another v DPP and another [2018] UKSC 33. The claimants in that case applied for judicial review of the decision of the DPP not to prosecute a man whom the claimants alleged had been involved in their rendition to Libya. The DPP argued that her decision was based on documents which in the interests of national security could not be disclosed to the claimants. The Foreign Secretary applied to the court for a declaration pursuant to section 6 of the Justice and Security Act 2013, which was a necessary prerequisite of an application to the court for the use of the closed material procedure, a procedure which would enable the court to sit in private and without the claimants or their representatives. Such an application can only be made in “relevant civil proceedings”, a term defined as not including “proceedings in a criminal cause or matter”. The claimants argued that the closed material procedure could not be used because the judicial review proceedings were a criminal cause or matter. The Divisional Court rejected that argument, but the Supreme Court – by a majority of three to two – allowed the claimant’s appeal. Lord Sumption, with whom Lady Hale agreed, said at paragraph 15 that – “… in its ordinary and natural meaning, ‘proceedings in a criminal cause or matter’ include proceedings by way of judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the legislation suggests a different meaning.” Lord Sumption went on to refer to case law which provided clear authority that the application for judicial review was a criminal cause or matter for the purpose of any right of appeal. He said, at paragraph 20, that the phrase spoke for itself:
“A ‘cause’ is a proceeding, civil or criminal, actual or prospective, before a court. A ‘matter’ is something wider, namely a particular legal subject-matter, although arising in a different proceeding.”
[47]Lord Mance, who allowed the appeal for essentially the same reasons as Lord Sumption and Lady Hale, summarised the position as follows at paragraph 26:
“A challenge by judicial review to a decision not to prosecute would seem to me to fall naturally within the concept of ‘proceedings in a criminal cause or matter’; and so too a challenge to a decision not to prosecute, the whole point of which would be to lead to a prosecution.”
[48]The Supreme Court has therefore now decided that for the purposes of any right of appeal, a decision of the High Court on an application for judicial review of a decision by a prosecutor either to prosecute or not to prosecute a particular person for a particular alleged crime is a decision in a criminal cause or matter.[49]In the light of that clarification of the law, we have considered whether the defendant in this case should be permitted to make the amendment sought so as to challenge the decision of Lewison LJ. We have concluded that permission to amend must be refused. We do so for the following reasons.[50]First, we accept Mr Rule’s submission that the application for permission to amend was made so late in the day that the claimant was left with insufficient time properly to prepare to argue what was a difficult point. No good reason has been given for the failure to make the application much sooner than it was made. We acknowledge that both the Divisional Court and the Supreme Court in Belhaj were concerned with the meaning of the phrase “criminal cause or matter” in a specific statutory context, and that the decision of the Divisional Court made clear that the meaning of the phrase could differ according to its context. We therefore accept that it may have taken some time for the defendant to be advised as to the impact on this case of the Divisional Court’s decision in Belhaj. Nonetheless, the defendant could reasonably have been expected to come to a decision about that impact much sooner than was done; and it would not be fair for the claimant to be required to research and argue a difficult point without reasonable notice of it.[51]Secondly, although the Supreme Court’s decision has helpfully clarified the law, its application to the unusual circumstances of the present case is not entirely straightforward. As we have indicated, Lewison LJ did not in fact grant permission to appeal: he granted permission to apply for judicial review. The relationship between the provisions of section 18 of the 1981 Act in relation to an appeal from a judgment of the High Court, and the provisions of CPR 52.8(5) in relation to the power of the Court of Appeal to grant permission to apply for judicial review rather than permission to appeal against a refusal, would call for careful analysis and, it may be, consideration of practice and procedure in this context. Had the issue of jurisdiction been raised before Lewison LJ, he would have had the opportunity to require submissions upon it.[52]Thirdly, we see some force in Mr Rule’s submission that, if an appeal to the Court of Appeal would be an appeal in a criminal cause or matter, then the oral hearing of a renewed application for permission to apply for judicial review should be heard by a Divisional Court rather than by a single High Court Judge. This too is a point which, had it been raised at an earlier stage, would have called for careful analysis. Again, it is a point which may make it necessary to consider practice and procedure in the listing of such hearings. We note in this regard that in the White Book commentary upon RSC 54.12, it is said (at paragraph 54.12.4) that there can be no appeal to the Court of Appeal against a refusal by the High Court to grant permission to apply for judicial review in a criminal case, but that the decision in re Poh [1983] 1 WLR 2 would prevent any appeal to the Supreme Court. The commentary suggests a procedure by which the position of the applicant can be safeguarded in such circumstances. For present purposes, the important point is that the commentary provides another reason why the issues raised by the defendant’s application for permission to amend cannot be regarded as straightforward.[53]Fourthly, Mr Douglas-Jones’ submissions amount in effect to an invitation to this court to act as an avenue of appeal against the decision of a superior court, and to treat the decision of a superior court as a nullity, or void, in circumstances where(a) no relevant argument was put before Lewison LJ for his consideration, and(b) no subsequent application has been made to Lewison LJ to set aside his decision as having been made in excess of jurisdiction.[54]In our judgment, it would be contrary to the interests of justice to give permission for these difficult issues to be raised by way of a late amendment. To grant permission would be to decide contentious and difficult issues without their having been properly identified at the appropriate stage of these proceedings, and without the claimant having had a fair opportunity to prepare his submissions on those issues. We therefore refuse permission to amend. It follows that, having identified points which may arise for decision in another case, we do not express any concluded view about them.[55]We therefore turn to consider the merits of the substantive application for judicial review of the Reviewing Lawyer’s decision. The grounds for judicial review:[56]In summary, Mr Rule argued that the decision of the Reviewing Lawyer should be quashed, and that the Defendant should be ordered to re-make the decision, for these reasons: i) The Reviewing Lawyer was not the appropriate person to make the decision, having regard to the CPS’s own guidance; ii) The Reviewing Lawyer acted unlawfully in taking into account an irrelevant consideration, namely the police internal disciplinary proceedings; iii) The decision was Wednesbury-unreasonable or perverse: in the circumstances of this case, and having regard to the clear evidence that a police officer had lied on oath and had in fact perverted the course of justice, the Reviewing Lawyer could only have concluded that DC Uren should be prosecuted; iv) The decision, that the evidential test for a charge of perverting the course of justice was not met, was wrong in law.[57]Each of those grounds was developed by Mr Rule and opposed by Mr Douglas-Jones. Other matters which had been pleaded by way of defence in the Detailed Grounds for Contesting the Claim, namely a contention that the claimant had no sufficient interest in the outcome of the proceedings and so lacked standing to bring the claim, and a contention that his claim should fail by reason of delay in bringing the claim, were not pursued before us, and need not be further mentioned.[58]As to the first ground of claim, it is relevant to begin by referring to the CPS’s Guidance on the Handling of Allegations of Criminal Offences against the Police (“GHCOP”). The Guidance begins by emphasising the need to maintain a clear public recognition of the independence of the CPS in dealing with allegations of a criminal offence having been committed by a person serving with the police. To that end, the Guidance says that it is important to ensure that case decisions are consistent with existing procedures. It indicates that if police disciplinary proceedings cannot be resolved swiftly, then criminal proceedings should where possible proceed in parallel with the disciplinary proceedings unless that would be likely to result in prejudice. It indicates that in applying the public interest stage of the Full Code Test, prosecutors – “… should take into consideration likely or actual disciplinary outcomes when considering whether criminal prosecutions should be pursued.”[59]The Guidance emphasises that charging decisions must be taken in accordance with the Full Code Test, and that no different standard should apply to cases involving allegations against those serving with the police. It sets out the time within which charging decisions should generally be made, and says – “The CPS Special Crime Division will remain as a locus of specialist knowledge and experience:• To continue to deal with the allegations of criminal offences against persons serving with the police; and• To act as a focal point with other authorities, eg ACPO and IPCC.” In dealing with the process for handling complaints about the independence of CPS decision-making, the Guidance says:
“… it will be appropriate when replying to refer to the arrangements which are in place. This is to ensure that decisions are not taken by a Crown Prosecutor who has had a working relationship or been involved with the officer concerned.” • To continue to deal with the allegations of criminal offences against persons serving with the police; and • To act as a focal point with other authorities, eg ACPO and IPCC.”
[60]The CPS also publishes guidance on the referral of certain cases to CPS Headquarters and to specialist divisions. Amongst the categories of case which should be referred to the Special Crime Unit are allegations against persons serving with the police of “seriously corrupt activity”. Examples are given, including - “systematic and organised attempts to pervert the course of justice or other conduct likely to seriously harm the administration of justice, in particular the criminal justice system.”[61]For the claimant, Mr Rule submitted that this Guidance required that the decision whether to prosecute DC Uren should have been referred to the Special Crime Unit of the CPS. He suggested that the obvious aim of the GHCOP is to ensure that sensitive decisions should not be taken at a local level, where local connections and professional relationships may exist, but should instead be taken by a centralised specialist team. In the present case, that did not happen: the Reviewing Lawyer was thought by the claimant to have had some working relationship with DC Uren, and in the absence of any evidence from the Reviewing Lawyer herself, that suspicion had not been allayed. Mr Rule submitted that on this ground alone, the decision should be quashed and remitted to a specialist decision-maker.[62]For the defendant, Mr Douglas-Jones submitted that the correct person made the decision. His instructions were to the effect that the Reviewing Lawyer did not think she had had any dealings with DC Uren. In any event, he submitted, the conduct alleged against DC Uren could not be said to be “seriously corrupt activity” or “likely to seriously harm the administration of justice”. He pointed out that it was DC Uren himself who first alerted prosecution counsel to the fact that JH’s witness statement had been amended. He further submitted that, far from the decision suggesting any possible bias in favour of DC Uren, the Reviewing Lawyer had arguably taken too strict an approach in applying the evidential test. He suggested that if the decision were to be retaken, it would be unlikely that the decision-maker (who would now be able to take into account the evidence which DC Uren had given during the disciplinary proceedings) would find that the evidential stage had been passed.[63]As to the second ground of claim, Mr Rule submitted that the GHCOP required that the charging decision must not be influenced by the existence of a complaint against the police. He submitted that the terms in which the Reviewing Lawyer expressed her decision on the public interest test make it clear that the prospect of police disciplinary proceedings was her principal reason for concluding that the public interest did not require a prosecution. He submitted that she was wrong to regard the disciplinary proceedings – which would not primarily be concerned with punishment, and would not involve a trial process – as a substitute for a criminal prosecution where there was clear evidence that serious criminal offences had been committed, and where the Reviewing Lawyer herself had concluded that the evidential test was met for charges of perjury and misconduct in a public office.[64]Mr Douglas-Jones submitted that the Reviewing Lawyer was entitled to take into account the prospect that the disciplinary proceedings would result in DC Uren receiving an appropriate sanction, determined by the body best placed to assess whether it was appropriate for DC Uren to be permitted to continue in his police career.[65]As to the third ground, Mr Rule submitted that whether one considered the matter as an issue of Wednesbury unreasonableness, or as an issue of irrationality in applying the Code and the GHCOP, or as an issue of proportionality, the decision not to prosecute was obviously flawed and wrong. The circumstances and seriousness of the offending which could be proved against DC Uren, and the consequences of it, plainly militated in favour of prosecution. The public interest favoured a prosecution, not only with a view to just punishment but also with a view to deterrence and to the maintenance of public confidence: in this regard, Mr Rule referred to A-G’s Reference number 30 of 2010 (R v Bohannon) [2011] 1 Cr Appellant R (S) 106. If the existence of disciplinary proceedings was relevant at all to the charging decision, it could not properly be a factor carrying great weight. The public interest in favour of prosecution was not displaced or outweighed by the suggested motives of DC Uren: even if he thought he was acting from a good motive, and without any ill-will towards the claimant, the inescapable fact is that his conduct did cause the course of justice to miscarry, with the result that a Crown Court trial had to be aborted and the claimant and witnesses were put to the stress of a retrial.[66]Mr Rule developed his argument based on proportionality at some length. However, with respect to the skill of the argument, we do not think it necessary to address it in detail: in our view, it is sufficient to consider this as an issue of irrationality or Wednesbury-unreasonableness.[67]Mr Douglas-Jones submitted that case law shows there are only limited circumstances in which there can be a successful challenge to a decision by a prosecuting authority as to whether or not a person should be prosecuted. He referred to the words of Sir John Thomas PQBD (as he then was) at paragraph 7 of his decision in L v DPP [2013] EWHC 1752 (Admin):
“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.”
[68]Mr Douglas-Jones submitted that the decision of the Reviewing Lawyer was, as Wyn Williams J had said, a decision with which other prosecutors might reasonably disagree but which was not Wednesbury unreasonable. He argued that the claimant’s submissions failed to take into account the very considerable pressure under which DC Uren had to work, the evidence suggesting that DC Uren had made mistakes rather than told lies, the fact that any lie he did tell was short-lived and told to no purpose, and the prospect that a conviction for perjury would end his public service career. There was, submitted Mr Douglas-Jones, room for compassion, and the Reviewing Lawyer should not be criticised if she made a compassionate decision.[69]As to the fourth ground, Mr Rule acknowledged that it was not specifically identified by Lewison LJ as a ground for granting permission, but argued that nor was it specifically excluded. He submitted that there was a plain error of law in the Reviewing Lawyer’s decision that any charge of attempting to pervert the course of justice could be discounted because DC Uren’s actions were “in essence to avoid an injustice” (see paragraph 23 above). Relying on the passage in the current edition of Archbold at paragraph 28-21, he submitted that it is sufficient for the prosecution to prove that the accused had an intention to do something which would in fact pervert the course of justice, even if the accused had no intention to defeat what he believed to be the ends of justice. Alternatively, he submitted, the relevance, if any, of the accused’s intent is a matter for a jury, not a reason to refrain from prosecution. He relied for this submission on A-G’s Reference number 1 of 2002 [2002] EWCA Crim 2392.[70]Mr Douglas-Jones again submitted that the evidential test for a prosecution of a charge of doing an act tending and intended to pervert he course of justice was not met.[71]We have reflected on those submissions. We are grateful to both counsel for their assistance, and we are conscious that we have had the advantage of full argument whereas Wyn Williams J can only have heard brief submissions from the claimant in person and counsel for the Chief Constable. Discussion:[72]We agree with Mr Douglas-Jones that, in applying the GHCOP, the conduct alleged against DC Uren, even taken at its highest, cannot be said to amount to “seriously corrupt activity”. Without attempting an exhaustive definition of that phrase, it does in our view connote an element of venality, or an element of the accused police officer acting in some way for gain or advantage for himself or another. Here, the Reviewing Lawyer was in our view clearly entitled to regard DC Uren’s behaviour as falling well short of that level. We also agree with Mr Douglas-Jones that the conduct of DC Uren cannot be said to have been likely to “seriously harm the administration of justice, in particular the criminal justice system”. Again without attempting an exhaustive definition, that phrase in our view connotes a risk to the system of justice generally, rather than a potential interference with the outcome of an individual trial. The Reviewing Lawyer was entitled to regard DC Uren’s behaviour as posing no threat to the criminal justice system generally.[73]It follows that, if this were the only ground for judicial review, the claim would fail. We would however add that it would in our view have been very much better if the decision had been referred to the Special Crime Unit. Where a claimant alleges that a local police officer has attempted to pervert the course of justice, and has committed perjury in connection with the prosecution of the claimant, it seems to us desirable – and consistent with the aims of the GHCOP - that any possible appearance of local partiality or bias should be avoided by referring the decision to the specialist central body.[74]As to the second ground, we are unable to accept the submission that the Reviewing Lawyer was not entitled to take into account at all the fact that DC Uren faced pending disciplinary proceedings. As a matter of principle, it was in our view legitimate for her to take that fact into account, though the weight to be given to it is a very different matter. The passages in the GHCOP on which Mr Rule relied in this regard are in our view directed at a different point: they are intended to emphasise that both a decision to prosecute, and a decision not to prosecute, should be taken on the merits of the case and should not be, or appear to be, influenced by the fact that there is an outstanding complaint against the police. It does not follow that the assessment of the merits must ignore altogether the fact or prospect of disciplinary proceedings: on the contrary, the passage which we have quoted at paragraph 57 above states explicitly that this is a matter which should be taken into account in considering whether the public interest test has been met. It follows that if this were the only ground for judicial review, the claim would fail.[75]Mr Rule’s submissions as to his third ground are in our view correct. We recognise that cases in which a decision of this nature can properly be set aside in judicial review proceedings are rare. We have however reached the clear conclusion that this case is one of them. In paragraphs 22 and 23 above, we have referred to the provisions of the Code which indicate that, although a prosecution will not necessarily be brought whenever the evidential test is met, it will usually be brought unless there are public interest factors tending against prosecution which outweigh the factors in favour. The Reviewing Lawyer had found that there was sufficient evidence to charge DC Uren with perjury. She had also found sufficient evidence to charge him with misconduct in a public office, though it might be said that her principal reason for that decision was that there was evidence of perjury. She stated her view that lying on oath and/or failing to deal properly with witness statements “cannot ever be done with reasonable excuse or justification”. She was therefore satisfied that it was more probable than not that, if prosecuted, DC Uren would be convicted of one or both of those offences. She stated that in her opinion, lying upon oath by a police officer would constitute an abuse of the public’s trust of an officer. She clearly recognised the strong public interest in favour of prosecuting persons against whom there is evidence of such serious offences. In the circumstances of this case, that general public interest was increased by the fact that DC Uren was accused of perjury in the course of his work as a police officer, and in relation to his conduct as a police officer. It was further increased by the fact that there was evidence that DC Uren had lied on oath in relation to conduct which included altering JH’s statement for a second time shortly after he had been told by prosecuting counsel that he had been wrong to alter it previously. It was yet further increased by the fact that DC Uren’s conduct had serious consequences: the very unusual situation arose of a police witness giving evidence which was contradicted by both prosecution and defence counsel, with the result that a Crown Court trial had to be stopped after some five days. There was inevitable delay before the retrial could take place. All concerned in that retrial, including the claimant, were put to additional stress and anxiety. The prosecution witnesses who had already given evidence in the initial trial had to give evidence again. At least one of those witnesses was a young child who was described by DC Uren himself as having been “distraught” after the experience of giving evidence in the first trial. In those circumstances, the Reviewing Lawyer was in our view bound to regard the factors in favour of prosecution as very strong.[76]What, then, were her reasons for concluding that those factors were outweighed by factors which militated against prosecution? We have quoted at paragraph 25 above the entirety of her reasoning and decision on this issue. She took into account that DC Uren acted as he did out of a desire to ensure that evidence was not incorrectly given to the court. She took into account that there would be disciplinary proceedings which were likely to result in DC Uren being dismissed or demoted. She posed, but did not answer, a question as to what purpose would be served by a prosecution. Her principal reason appears to have been that prosecution would be disproportionate to the alleged offending, “in light of the potential alternative personal outcome” for DC Uren.[77]With all respect to the Reviewing Lawyer, her decision-making was in our view flawed. Our reasons for taking that view are as follows. First, the Reviewing Lawyer was entitled to consider DC Uren’s motivation, but she did so only in relation to his motivation for altering the witness statement, not for making (and repeating) a false statement about what he had done. She failed to address that important question despite her observations that the reference to professional embarrassment implied that DC Uren knew at the time what he was doing. The implication of that observation was that this was not a case of muddle and error: it was a case of a police officer telling a deliberate lie.[78]Secondly, at the time when she was making her decision, it was a matter of speculation what sanction DC Uren might suffer as a result of the pending disciplinary proceedings, and to base her decision in part on an expectation as to that sanction was to put the cart before the horse.[79]Thirdly, whilst the prospect that disciplinary proceedings might result in dismissal was a relevant factor, it was not necessarily a reason why there should be no prosecution. There are many cases in which a prosecution is appropriately brought notwithstanding that the accused faces disciplinary proceedings which may result in his being unable to work again in his chosen field. In this regard, we accept Mr Rule’s submission that the approach taken by the Reviewing Lawyer risks introducing an element of circularity: an accused officer is not prosecuted because he faces disciplinary proceedings; but the fact that he has not been prosecuted is then likely to be relied on in the disciplinary proceedings, at least in relation to sanction. Be that as it may, the Reviewing Lawyer did not identify any reason why, in such a serious case, the “potential alternative personal outcome” outweighed the public interest in prosecution.[80]Fourthly, the Reviewing Lawyer said that she had considered paragraphs b, c and f of paragraph 4.12 of the Code, but she did not address the seriousness of the offence of perjury (“the more serious the offence, the more likely it is that a prosecution is required”: paragraph 4.12a), the impact on the course of justice in the Crown Court trial, or the fact that the abrupt termination of the trial gave rise to additional expense, delay and anxiety for all concerned. Nor did she make any reference to the significance of the likely penalty in the event of conviction. Nor did she make any reference to the need to maintain public confidence in the impartiality of decision-making in relation to prosecutions of police officers suspected of serious crimes.[81]In short, the factors which the Reviewing Lawyer identified as weighing against prosecution were matters which it was legitimate for her to take into consideration, but they were factors to which in our view only limited weight could be given. With all respect to the Reviewing Lawyer, we cannot find in her decision any clear or sustainable explanation for her decision that although the evidential test was met in respect of offences which are by their nature serious, the public interest did not require prosecution. On the evidence available to the Reviewing Lawyer, and in the light of her own conclusions and observations about the evidential test, we conclude that it was not reasonably open to her to decide that the public interest did not require a prosecution.[82]As to the fourth ground, we agree with Mr Rule that the Reviewing Lawyer fell into error when she dismissed any possibility of a successful prosecution for the offence of doing acts tending and intended to pervert the course of justice. On such a charge, the prosecution must prove, amongst other things, that the accused did acts which tended, and were intended by him, to pervert the course of justice. The motive of the accused may of course shed light on his intention; but the offence may be committed even if the accused’s motive was to achieve what he believed to be a just result. There is a distinction between the course of justice – which in this case undoubtedly was perverted, as the trial had to be stopped and the claimant retried at a later date – and the ends of justice – which DC Uren has said he did not intend to pervert. The Reviewing Lawyer appears not to have considered that distinction, and appears to have dismissed any thought of prosecution on such a charge despite the clear evidence that DC Uren had deliberately acted in a way which he knew to be contrary to proper procedure and which brought a Crown Court trial to an abrupt halt.[83]We note in this regard the decision of the Court of Appeal, Criminal Division in A-G’s Reference number 1 of 2002 [2002] EWCA Crim 2392, on which Mr Rule relied. In that case, a police officer intended to put before the court evidence which she knew to be false. Her motive for doing so was that she wanted a man whom she believed to be guilty to be convicted, and a vulnerable victim spared from having to give evidence at court; but her intent was to cause the court to believe evidence which she knew to be false. The Court of Appeal held that in such circumstances the trial judge had been wrong to withdraw the case from the jury. The Vice President, Rose LJ, said this at paragraph 26 of the judgment of the court:
“Whether or not her motive in making the false statement which she undoubtedly made, and in persuading the witness M to make the false statement which he undoubtedly made, was, at first sight, a laudable one of protecting the elderly neighbour; and whether or not, if that was the motive, that bore upon her intention in making those false statements, were eminently, as it seems to us, matters for consideration by the jury. The fact that a police officer had made a false statement and had persuaded a lay witness to make a false statement and had, in the course of interviewing a suspect, made a false statement to him, were, as it seems to us, each capable of giving rise to the inference that there was the necessary intention to pervert the course of justice. There was certainly evidence there for the jury to be permitted to consider.”
[84]In the circumstances of this case, the Reviewing Lawyer in our view could not properly dismiss any prospect of a successful prosecution for such an offence as abruptly as she did. Having identified the adverse findings of fact which on the available evidence could be made against DC Uren, and having concluded that the evidential test was satisfied in respect of charges of perjury and misconduct in a public office, she fell into error of law in discounting a third charge solely on the basis that DC Uren acted as he did “in essence to avoid an injustice”. She should have focused on the course of justice rather than the ends of justice, and should have undertaken a more careful analysis of the findings which a jury could properly make as to his motive and intention.[85]We therefore conclude that the claimant succeeds on his third and fourth grounds. With respect to the Reviewing Lawyer, her decision was seriously flawed because she failed to take into account the strength of the public interest factors plainly weighing in favour of prosecution for the offences which had passed the evidential test, and because she failed to apply the law correctly in deciding that the third potential charge did not pass the evidential test. The decision that DC Uren not be prosecuted must therefore be quashed, and must be taken again.[86]We emphasise that we have been concerned with a review of the decision taken by the Reviewing Lawyer on the basis of the evidence before her. We have well in mind Mr Douglas-Jones’ forceful submission that the further evidence which is now available, in particular the evidence given in the disciplinary hearing which post-dated the Reviewing Lawyer’s decision, could lead to a different conclusion about the evidential stage of the Code. However, it is not for us to say what the fresh decision will be. That being so, we refrain from expressing any further view about the merits of the various factors (both for and against prosecution) which we have identified in our discussion.[87]For the reasons we have indicated, although not strictly required by the GHCOP, it is highly desirable that the decision should be re-made by a member of the Special Crime Unit.[88]We therefore quash the decision of the Reviewing Lawyer dated 11th September 2015 and direct that the question whether DC Uren should be charged with any, and if so what, offence or offences be referred to the Special Crime Unit so that a fresh decision can be made.

Cited in 6 later judgments