“Until further order, the Defendant shall be prohibited from communicating to the Crown Court any decision to stop the case/offer no evidence against the Interested Party in case number CPS 01CC1048018 (‘the decision’).”
“The charges against Mr Harding arise out of an incident on15 May 2018 . Mr Harding was a serving police officer who, at the material time, was acting in the exercise of his duties. Whilst driving an unmarked police car, he acted in an operation to conduct a stop of [a] minicab in which the Claimant was travelling, the Claimant being a suspect in connection with serious offending. During the operation, the Claimant got out of the minicab and ran across the road in front of, and diagonally towards, Mr Harding’s oncoming car. Mr Harding swerved slightly to the left and then hard to the right without braking. The result was that Mr Harding’s car collided with the Claimant at a speed of 12mph, as the Claimant reached the pavement. The Claimant was knocked over a set of railings and dropped into a basement void. He sustained injuries including fractures to the spine and a collapsed lung.”
“On16 February 2024 , having reviewed the case in light of evidence that was not available at the time of the original charging decision, I decided that the evidential test in the Code for Crown Prosecutors was no longer satisfied in respect of either charge, and that accordingly the appropriate course was to offer no evidence. That decision was approved at Deputy Chief Crown Prosecutor level on22 February 2024 . The decision was communicated to the Claimant in a letter dated18 March 2024 .”
“Regrettably, I must inform you that I have had to take the decision that the case both for causing you injury by dangerous driving, subject tosection 1A of the Road Traffic Act 1988 and causing you grievous bodily harm, subject tosection 20 of the Offences Against the Person Act 1961 cannot go any further and must be stopped. The reason for this is due to the nature of the legal test I must apply when deciding whether I can bring the case, namely whether or not there is a realistic prospect of conviction, and in this case, that test is no longer met. … Why I have stopped the case: When the case was originally reviewed the evidence suggested that the defendant had deliberately hit you with his car, which the reviewing lawyer decided amounted to dangerous driving and assault. However, the defence obtained an expert report which concluded, due to the split second that the defendant had to react, together with the angle and location you ran from, that the defendant swerved away from where you initially came and could have been trying to avoid hitting you. In response to the defence expert report, we asked the Independent Office for Police Conduct (IOPC) to obtain expert opinion on the defence report. The IOPC instructed two experienced police collision investigators to review the report and provide statements of their conclusions. When we received their statements, they agreed with the defence report. We reviewed the case again and concluded we could no longer prove that the defendant had deliberately tried to hit you with his car. This meant that there was no longer a realistic prospect of conviction and we had to stop the case. The decision to stop the case will be told to the court by a CPS lawyer at a hearing on a date to be confirmed this week and the court will then formally find the defendant not guilty. This is legally called ‘offering no evidence’. … If you are unhappy with the decision to stop the case, you can have my decision reviewed by another CPS lawyer. This is called the Victims’ Right to Review scheme (VRR). More information on this scheme is available in the attached leaflet. You can also contact the VLU team, who will explain the scheme to you. Please note that if you request a review and the other lawyer disagrees with my decision, we will be unable to restart the case, but we will share and adopt any learning from it.”
“It is understood that the Defendant intends to offer no evidence in the prosecution of the Interested Party at a hearing in the Crown Court tomorrow. The Claimant’s application to prevent the Defendant from doing so comes very late in the day but apparently through no fault of his and largely, if not entirely, as a result of the Defendant’s (surprisingly hasty) approach to giving him notice of this decision. On the information currently available it seems to me that there is a triable issue as to whether correct and/or adequate consideration has been given to prosecuting the Interested Party for causing serious injury by dangerous driving contrary tosection 1A of the Road Traffic Act 1988 . Moreover, it is not clear why so little notice was given to the Claimant of the decision to offer no evidence, especially when his rights as a victim (VRR) are taken into account. There may be other grounds for complaint but at this stage the Claimant has not seen the evidence to which the Defendant refers in the CPS letter of18 March 2024 or had an opportunity to understand what has happened better. In any event, as I understand it the investigation and proceedings in this matter have been ongoing for some time. The trial is not due to take place until May and consideration is still being given to prosecution of the Interested Party for offences in connection with the same incident including for perverting the course of justice. I am not aware of any prejudice at all to the Defendant if the proposed notification of the decision to the Crown Court is delayed for a short period of time and any prejudice to the Interested Party appears negligible. On the other hand the effect will be irreversible so far as the Claimant is concerned and the prejudice to him and to the public interest may therefore be significant if relief is refused.”
“1. The decision dated18 March 2024 to stop the prosecution against DS Michael Harding in case number CPS 01CC1048018 for offences of causing injury by dangerous driving subject tosection 1A of the Road Traffic Act 1988 , and causing grievous bodily harm subject tosection 20 of the Offences Against the Person Act 1961 . 2. The decision dated18 March 2024 that the Claimant is entitled to seek a review under the Victims' Right of Review (VRR) scheme which will not be capable of affecting the outcome/resulting in the prosecution at (1) above continuing. 3. The content, operation, practice and/or application of the VRR scheme in identifying a VRR review in the Claimant's case that will not be capable of affecting the outcome/resulting in the prosecution at (1) above continuing.”
“… This claim has been issued in order to obtain urgent interim relief. An application for interim relief was issued on18 March 2024 as an application for interim relief before starting proceedings. That was done in circumstances where – as recorded in the ‘reasons’ set out in the order of Mr Justice Linden dated18 March 2024 – the Claimant was not in a position to issue a claim for judicial review, and considered it premature to do so. The ‘pre-action’ interim application has yet to be determined and a hearing has been listed to take place on Friday22 March 2024 , which is the return date for the application. Given the terms of the relief sought the Claimant considered it appropriate to await the determination of that application prior to the issue of any claim. However, the Claimant has today been requested by the Court to file a claim form and these proceedings are being issued accordingly.”
“6. The prosecution evidence initially included CCTV footage, eye-witness accounts and, importantly, expert evidence from two police collision investigation officers, Duncan Swallow and Stephen Perrett, who considered the dynamics of Mr Harding’s driving. In relation to Mr Harding’s claim that he had swerved right in an attempt to avoid the Claimant, the conclusion was that Mr Harding was not telling the truth and had steered to the right in order to block off Mr Francis’ escape. On this basis, the prosecution case was that Mr Harding had deliberately driven at the Claimant, and that deliberate act founded the charges on the indictment. 7. On8 November 2023 , an expert report prepared by Jonathan Webb, a forensic collision investigator, was served by the defence. The essence of Mr Webb’s opinion was that on a proper analysis of the accident dynamics, in particular having regard to a frame-by-frame analysis of the CCTV evidence, Mr Harding had not driven at the Claimant but had swerved to avoid him – it was in fact the Claimant who, as he continued to run, ran into the path of Mr Harding’s avoidance manoeuvre. Mr Harding reacted to the perceived hazard posed by Dean Francis in 0.44 seconds, and the whole period between the Claimant first emerging into Mr Harding’s sight and being struck was only 1.2 seconds. Having swerved to avoid the Claimant, Mr Harding had no reasonable time (having regard to the limits of human perception) to undertake another avoidance manoeuvre. The effect of Mr Webb’s report was that it provided an entirely new factual basis in relation to the dynamics of Mr Harding’s driving which was inconsistent with the prosecution’s primary case, that he had driven deliberately at the Claimant. 8. In light of this opinion, the prosecution sought further evidence from Mr Swallow and Mr Perrett. In summary, both experts agreed with Mr Webb’s factual analysis. Mr Swallow, having reviewed the matter, prepared a statement in which he agreed with the report of Mr Webb, and in particular stated that Mr Harding’s swerve to the right was a reasonable option to avoid hitting the Claimant, and thereafter Mr Harding had insufficient time to carry out a further avoidance manoeuvre. The swerve was one of three reasonable possible manoeuvres, and it was for others to determine whether it was acceptable in the context of an allegation of dangerous driving. Code Review 9. In light of the new evidence, I reviewed the case in accordance with my continuing duty under the Code. 10. I concluded that there was no longer a realistic prospect of conviction for either of the offences for which Mr Harding was indicted for. The reason for this decision was that the CCTV of the events of15 May 2018 had been subjected to a forensic frame-by-frame analysis in the report submitted by Jonathan Webb, and that report had in turn been carefully scrutinised by two police collision investigators instructed by the Independent Office for Police Conduct (IOPC), who looked into the circumstances of the collision. The experts agreed that Michael Harding reacted in a split second to seeing the Claimant emerge from behind a bus by promptly turning sharply away from him, which in the circumstances was a reasonable reaction to the perceived hazard. I concluded therefore that his driving did not fall far below the standard of the reasonably careful and competent driver in those circumstances, nor was it obvious that his driving was dangerous, despite the subsequent collision and the resulting serious injury. Nor, I concluded, was there now any case that Michael Harding had driven deliberately at the Claimant. 11. Although the decision letter sent to the Claimant did not refer to consideration of dangerous driving on a non-deliberate basis, I can confirm, as stated above, that it did form part of my review. 12. As noted above, the decision to offer no evidence was approved at a senior level within the CPS.”
“When considering whether to grant interim relief while a judicial review claim is pending, the judge will consider whether there is a real issue to be tried and whether the balance of convenience lies in favour of granting the interim order. This involves balancing the harm to the claimant that would be caused if interim relief is not granted and the claim later succeeds against the harm to the defendant, any third parties and the public interest that would be caused if interim relief is granted and the claim later fails.”
“47. The CPS, as the independent prosecutor, in our view had to respond to the request made by the complainants for a review of the decision not to prosecute, just as the CPS had done in R v Burke. As we have set out, the request was made as ‘a complaint’, as that is what the procedure of the CPS requires as we have described at paragraphs 23 to 26 above. This procedure applied until April 2010. The new procedure appears still to treat requests for review of a decision not to prosecute as ‘a complaint’ about a ‘level of service’, though as appears from the document to which we referred at paragraph 26, a threat of judicial review brings about a re-review more in the nature of a re-review of the prosecutorial discretion. 48. Although in form the request was made as ‘a complaint’, what was sought was a reconsideration by an interested person of the decision. 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 (as set out in paragraph 25 above) 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 (see R v DPP ex p C [1995] 1 Cr App 136); 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 identified for example by Lord Woolf CJ in R v B[2003] 2 Cr App R 197 at paragraph 27. 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. 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 Article 10 of the Draft EU Directive on establishing minimum standards on the rights, support and protection of victims of crime dated18 May 2011 which provides: ‘Member States shall ensure that victims have the right to have any decision not to prosecute reviewed.’ See also the Explanatory Memorandum of the Ministry of Justice dated2 June 2011 . 50. Thus in determining whether in the circumstances there was an abuse of process, regard must be had to the rights of the complainants to have the decision reviewed. …” (Emphasis added.)
“4. Victims of crime and the public have a legitimate expectation that those who commit offences will be brought to justice. … It is also important that victims have a right to seek a review of a decision not to prosecute, without having to seek recourse to judicial review proceedings in the first instance. 5. The Victims’ Right to Review (VRR) scheme enables victims to seek a review of certain CPS decisions not to start a prosecution or to stop a prosecution. It is an important safeguard in England and Wales in relation to the rule of law. …”
“The right to request a review under the VRR scheme arises where the CPS: • makes a final decision not to bring proceedings (i.e. at the pre-charge stage); • discontinues or withdraws all charges (footnote 5) involving the victim, thereby entirely ending all proceedings relating to them; • has offered no evidence in all proceedings relating to the victim; or • asks the court to leave all charges in the proceedings to ‘lie on the file’. These are known as ‘qualifying decisions’ and are decisions that have the effect of being final.” (Emphasis added.)
“Some qualifying decisions cannot be instituted or reinstituted, such as ‘offer no evidence’ decisions and cases which become statute barred (footnote 3). This is because such decisions are final, and proceedings cannot be reinstituted; again, redress in these circumstances is limited to an explanation and apology.”
“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. In subsequent decisions … the courts have indicated that these applications will succeed only in very rare cases. 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.”
“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.”
“39. R v Killick[2012] 1 Cr App R 10 , especially at paras 48-49, identifies a common law right for a victim to seek review of a decision not to prosecute. The CPS is bound to conduct a review because judicial review would in principle be available of the decision not to prosecute (albeit that judicial review is to be ‘sparingly exercised’ in such circumstances: see L’s case[2013] EWHC 1752 (Admin) and see also R v Director of Public Prosecutions, Ex p C[1995] 1 Cr App R 136 , 140A), and it would be disproportionate for the CPS not to provide a system of review which obviated the need for an aggrieved victim to resort to proceedings. 40 The right to request a review is in essence the same as the right now guaranteed by article 11 of the Directive. As indicated above, the Directive specifically leaves matters of procedure to the national law. 41 Neither R v Killick[2012] 1 Cr App R 10 nor the Directive says anything about the scope of the right to request a review, or about the time when it may be exercised. …”
“46. The CPS has interpreted para 9(iii) as meaning that the qualifying decision is only taken when the prosecution actually offers no evidence, with the result that no request for a review can be made until after that point. It is in my judgment clear that the effect of that interpretation is that in every such case, any review will only take place after the proceedings have been concluded. The victim’s representations as to why the initial decision not to prosecute was wrong will therefore only be considered after the accused has been acquitted, and when it is accordingly too late for the representations to result in the prosecution being continued. In that important respect, the scope of the VRRG is restricted or limited. 47 I therefore accept the submission on behalf of the claimant that the VRRG is, or is operated as, an inflexible policy in a case falling within para 9(iii).”
“(1) For the purposes of sections 1, 1A and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if) — (a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.” (a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.”
“So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so.”