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Challenging the Decision to Charge

Challenging the Decision to Charge

The decision to charge is a significant event in the course of criminal proceedings. It signifies the commencement of a prosecution. An individual who is the subject of a prosecution potentially faces punishment if found guilty, and this could include a term of imprisonment. Needless to say, the decision to charge is a very important one indeed.

The decision to charge is significant event in the course of criminal proceedings. It signifies the commencement of a prosecution.

A charge is a formal accusation of a criminal offence. When an individual is suspected of committing an offence, he is known as a ‘suspect’. The decision to instigate a public prosecution of a suspect must pass a test applied by a public prosecutor before an individual can be more than merely ‘suspected’ of committing offence, and can be ‘accused’ of committing the offence.

The role of the Crown Prosecution Service

There are various prosecuting bodies in England and Wales, however, the body which prosecutes individuals who have been charged by the police is the Crown Prosecution Service (CPS). Whilst the police gather evidence and interview suspects in relation to criminal offences, it is a CPS prosecutor who decides whether or not an individual should be charged with a criminal offence and, if so, what the charge should be. Because the CPS prosecutor is independent from the police, he can neutrally assess the strength of the evidence and whether or not the case should be discontinued for lack of sufficient evidence.

The decision to prosecute

As explained above, in order for an individual to be formally accused of a criminal offence, a prosecutor must be satisfied that the following tests are met:

  1. There must be enough evidence against the suspect in order to secure a realistic prospect of conviction (the evidential test) and;
  2. It  must be in the public interest to prosecute the suspect (the public interest test).

If these two tests are met, the suspect may be charged with the offence. Once the suspect has been charged, he becomes ‘the accused’ because the effect of charging the individual is that he has been formally accused of the offence, and is no longer merely suspected of having committed the offence.

Challenging the decision to prosecute

Because the decision to charge and the charge itself are so central to the subsequent proceedings in the criminal court, it follows that flaws or injustices in a charge will have far-reaching implications and will impact upon the proceedings which follow. It is therefore imperative that there is some way in which the decision to charge may be challenged. The CPS is an independent public authority, thus its decisions are capable of being challenged administratively through judicial review.

Because the CPS prosecutor is independent from the police, he can neutrally assess the strength of the evidence…

There are several circumstances in which an application for judicial review may be appropriate for an individual aggrieved by a charging decision:

  • If the prosecutor has failed to adequately consider the evidence before him
  • If the prosecutor has reached an irrational conclusion as to the evidence
  • If the prosecutor, when deciding whether or not to charge the individual, has acted unreasonably
  • If the prosecutor has incorrectly applied CPS policy, or made some other error of law when deciding whether or not to charge
  • If the prosecutor has acted in bad faith
  • If the prosecutor has made irrelevant considerations when deciding whether or not to charge.

These grounds will be considered below.

Lack of consideration of evidence

If, when making the decision to prosecute, the evidence supporting the proposed prosecution has not been carefully considered, it may be appropriate to make an application for judicial review in order to rectify any charging decision arising out of this. It must be noted that there must be an objective basis for claiming that there has been no consideration of the evidence supporting the prosecution (R (Peter Dennis) v DPP [2006] EWHC 3211).

Irrational conclusion as to evidence

If, in considering the evidence, the conclusion as to what the evidence to support the prosecution actually is is an irrational one, an application for judicial review may be an appropriate avenue of redress (R v DPP, ex parte Timothy Jones [2000] Crim LR 858).

Unreasonableness

If the decision to charge is such that no reasonable prosecutor could have arrived at such a decision, the decision to charge may be considered unreasonable, thus susceptible to judicial review (R v DPP, ex parte C [1995] 1 Cr App R 136).

If CPS policy, such as the Code for Crown Prosecutors has not been properly adhered to or applied when deciding whether or not to charge, this decision may be scrutinised through judicial review

Incorrect application of policy

The CPS provide policies and guidance for various reasons. Firstly, it ensures national uniformity in respect of charging decisions. Secondly, it aims to provide prosecutors with guidance as to what should be borne in mind when making the decision to charge and what should not be, thus ensuring that decisions are fair. If CPS policy, such as the Code for Crown Prosecutors, has not been properly adhered to or applied when deciding whether or not to charge, this decision may be scrutinised through judicial review (R v DPP, ex parte Manning [2001] QB 330). Similarly, the decision to prosecute could be subject to judicial review if it is an unjustified departure from established prosecution practice.

Irrelevant considerations

If a prosecutor takes into account factors which are irrelevant, such as those which CPS policy does not specify or mandate, any decision to charge arising out of such a decision may be liable to judicial review (R v DPP, ex parte Manning).

Bad faith

Decisions to charge must be fair, consistent and justifiable. As such, any decision which can be demonstrated to have been arrived at due to corruption, fraud or bad faith may be challenged through judicial review (R v DPP, ex parte Kebilene [2000] 2 AC 326).

What if there has been a charge, but no subsequent prosecution?

If an individual has been charged, but there has subsequently been a decision to not prosecute, the High Court does have the power to intervene in such circumstances. This, however, is a power which should be used only in the most exceptional of circumstances (R v DPP, ex parte C). This is because the lack of subsequent prosecution means that the claimant will have not suffered any direct injustice as a result of the decision to charge.

Procedure

In order to judicially review a charging decision, any prospective claimant must seek permission from the Court (The Administrative Court in the Queen’s Bench Division of the High Court). This is done through the drafting of an application, consisting of a statement of facts surrounding the decision, and the legal grounds upon which the decision is to be challenge, along with any supporting documents. The full procedure for judicial review can be found in Part 54 of the Civil Procedure Rules.

Before any application can be considered, there is a pre-action protocol which must have been complied with. This involves writing a formal letter to the proposed defendant. With charging decisions, the proposed defendant will be the Director of Public Prosecutions (DPP) because the CPS act under the DPP’s powers (section 1(6) Prosecution of Offences Act 1985). This letter must set out the proposed claim and the remedy which is sought.

Judicial review should only be turned to as a last resort.

If the DPP’s response is unsatisfactory, the application for permission must be lodged in the Administrative Court. The application will include the claim form, the statement of facts and the grounds. A judge sitting in the High Court will read the application and consider whether or not there is an arguable case. If there is, he will grant permission for the decision to be judicially reviewed. At this stage, the case is a paper exercise and hearings are not usually necessary at this point.

If permission is granted, the claim proceeds to the substantive stage which is a hearing involving legal argument. Judgment may be given at the time orally, or shortly afterwards in writing. Costs arguments follow judgment.

An application for judicial review must be made promptly, or in any event within three months after the decision was made. Submissions on delay may be considered in exceptional circumstances.

Remedies

At the pre-action stage, the CPS will review the decision internally and decide whether or not it was in fact the wrong decision to make. If it is found to have been wrong, immediate action should be taken to rectify the decision. If, however, the case goes to a full judicial review, the claimant will specify which remedy he seeks from the CPS. It cannot be emphasised enough that judicial review is a discretionary remedy. Thus, even it is found that the CPS has in fact erred in law, the Administrative Court is not compelled to make the order that the claimant seeks, or indeed provide any relief. That is purely a matter of the Court’s discretion.

There are five main remedies in judicial review:

  1. Mandatory orders,
  2. Prohibiting orders,
  3. Quashing orders,
  4. Declarations,
  5. Human Rights Act damages.

Given that the ultimate objective of judicial review of a charging decision is that the CPS reconsider how the decision to charge was arrived at, the usual remedy sought in such claims will be a quashing order. The effect of a quashing order is that the original decision is set aside, and the CPS have to reconsider the decision to charge.

Abuse of process: an alternative remedy?

Judicial review can only be resorted to if there is no alternative remedy. If, for example, the decision to charge could be considered by the criminal court on an application to stay the prosecution as an abuse of process, this line of redress is the appropriate one. Judicial review should only be turned to as a last resort.

What happens if the judicial review is successful?

If a judicial review of a charging decision is successful, the decision will be quashed. This in essence means that the decision will be relayed back to the CPS for reconsideration. Whilst this may in real terms mean that the CPS make exactly the same decision to charge as they had done initially, they are more likely to make the right decision given that their decision-making process is being scrutinised. The final word, however, does lie with the CPS.

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