cp149 Consents to Prosecution consultation - Law Commission

Judicial review of prosecutors’ decisions
1.22 In this consultation paper, we are concerned with a particular restriction on the
prosecution process – namely, a requirement of consent to prosecution – with, as
we shall see, its particular impact on the private prosecutor. We shall later be
considering other factors which inhibit private prosecution, such as the costs
constraint and potential liability in tort. Given that private prosecution will tend to
be a course of last resort, we believe it will be helpful at this stage to set out the
ways in which a decision of the CPS not to prosecute, or to prosecute for a lesser
charge, can be challenged by way of judicial review.
A decision not to prosecute
1.23 In the (pre-CPS) case of R v Commissioner of the Police of the Metropolis, ex p
Blackburn, 68
in which the applicant, a private citizen, sought the reversal of a policy
decision by the respondent not to enforce a provision of the Betting, Gaming and
Lotteries Act 1963, it was held that the respondent was under a duty to enforce
the law. 69
The Divisional Court appeared, therefore, prepared to intervene in
matters of policy, although Lord Denning MR took the view that it was for the
chief constable “to decide in any particular case whether inquiries should be
pursued, or whether an arrest should be made, or a prosecution brought.” 70
1.24 In the recent case of R v Director of Public Prosecutions, ex p C, 71
in which the
applicant sought judicial review of the decision of the DPP not to prosecute her
husband for non-consensual buggery, Kennedy LJ said that it had been “common
ground” that a decision by the DPP not to prosecute was reviewable, although the
power was one “sparingly exercised”. 72
Having considered the authorities, he
identified three circumstances in which an application for judicial review of a
decision not to prosecute would be effective: 73
(1) if the decision was the result of some unlawful policy;
(2) if it was made because the DPP had failed to act in accordance with the
Code issued pursuant to section 10 of the POA 1985; 74
(3) if the decision was perverse.
68 [1968] 2 QB 118.
69 Ibid, at p 136A, per Lord Denning MR.
70 Ibid, at p 136D-E, per Lord Denning MR.
71 [1995] 1 Cr App R 136.
72 Ibid, at pp 139G-140A.
73 Ibid, at p 141B-E. See also R v CPS, ex p Waterworth [1996] JPIL 261.
74 See G Dingwall, “Judicial Review and the Director of Public Prosecutions” [1995] CLJ
265, where, of R v DPP, ex p C [1995] 1 Cr App R 136, it was said that “this case highlights
the importance of following the Code for Crown Prosecutors in determining whether to
prosecute”.
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