England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/03/2011

Lord Justice Richards :

1. This is an application for judicial review of a decision of the Crown Prosecution Service ("the CPS") dated 16 November 2010 to take over the conduct of private prosecutions brought by the claimant, Mr Gujra, in order to discontinue them. There are two main issues in the case: (1) whether the CPS's current policy concerning the circumstances in which it will take over the conduct of a private prosecution in order to discontinue it is lawful and, if so, (2) whether the decision taken in the application of that policy to the relevant facts was rational.
2. The private prosecutions were brought by the claimant against Tamoor and Imran Mirza for common assault contrary to s.39 of the Criminal Justice Act 1988 and against Wajeed Mirza for an offence contrary to s.4 of the Public Order Act 1986, in relation to alleged incidents on 17 May 2010 and 24 May 2010. The claimant alleged that on 17 May he was assaulted by Tamoor and Imran Mirza in front of two witnesses, Vijay Swaley and Oumar Khobzi, the motive for the attack being that he had made a statement in civil proceedings brought against the Mirzas. He alleged that he was then threatened and intimidated by Wajeed Mirza on 24 May while he was driving his vehicle in Southampton city centre.
3. Solicitors for the claimant wrote to the CPS on 8 September 2010 to confirm that they had initiated the private prosecutions. The witness Vijay Swaley alleged that on the following day, 9 September, he was intimidated by Tamoor, Imran and Wajeed Mirza while in the West Quay shopping centre in Southampton.
4. On 22 October 2010 the CPS conducted a full review of the evidence and notified the police that there was insufficient evidence to provide a realistic prospect of conviction against any of the accused. On 11 November 2010 the CPS notified the claimant's solicitors that it intended to take over and discontinue the private prosecutions on that ground. Formal notices of discontinuance were served by the CPS on 16 November 2010.
5. The CPS decision to take over and discontinue the private prosecutions was taken in the light of the detailed review of the case by Mr Simon Massey, a lawyer in the Complex Casework Unit of CPS Wessex, a review which was itself overseen by Mr Ian Harris, head of the Unit. The actual decision was taken by Mr Nick Hawkins, Chief Crown Prosecutor for CPS Hampshire and the Isle of Wight, following a further review by Miss Alison Levitt QC, Principal Legal Advisor of the CPS, who agreed with the conclusion that there was no realistic prospect of conviction of any of the accused and that the private prosecutions should therefore be taken over and discontinued.

The right of private prosecution and the role of the DPP

6. The right of private persons to institute criminal proceedings is of great antiquity and has been expressly preserved by successive statutes since the establishment of the office of Director of Public Prosecutions ("the Director") by the Prosecution of Offences Act 1879. As Lord Mance observed in Jones v Whalley [2006] UKHL 41, [2007] 1 AC 63, para 43, "[t]he right of private prosecution operates and has been explained at the highest level as a safeguard against wrongful refusal or failure by public prosecuting authorities to institute proceedings". Control over private prosecutions has long been available, however, through the power of the Attorney General to enter a nolle prosequi; and since the Prosecution of Offences Act 1908 the Director has had an express power under statute to take over the conduct of such proceedings, a power which has been held to include not only the carrying on but also the discontinuance of the proceedings (see e.g. Raymond v Attorney General & Others [1982] QB 839, 846H-847A).
7. The current statutory provisions are contained in the Prosecution of Offences Act 1985 ("the 1985 Act"). That Act provides for the establishment of the CPS, with the Director as its head. It provides in s.3 that the Director is to discharge his functions under the superintendence of the Attorney General and is to have the duty of taking over the conduct of various criminal proceedings, including most criminal proceedings instituted on behalf of a police force. The right of private prosecution and the power of the Director to take over the conduct of private prosecutions are set out in s.6:

"6.(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage."

8. Where the Director has the conduct of proceedings and gives notice to the magistrates' court during the preliminary stage of the proceedings that he does not want the proceedings to continue, "they shall be discontinued with effect from the giving of that notice …", subject to the right of the accused to cause them to be revived: see s.23(3) of the 1985 Act. Similar provision is made in s.23A in respect of proceedings sent for trial in the Crown Court.
9. By s.10 of the 1985 Act the Director is required to issue guidance in the form of a Code for Crown Prosecutors ("the Code"):

"10.(1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them –

(a) in determining, in any case -

(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued …."

Pursuant to s.9 and s.10(3) the Code and any alterations to it are required to be set out in reports to be made by the Director to the Attorney General and then laid before Parliament. The relationship between the guidance in the Code and the policy in relation to the taking over of private prosecutions is of central importance to the present case.

10. Under the Code, Crown Prosecutors are required whenever possible to apply "the Full Code Test", which has an evidential stage and a public interest stage. The relevant stage for present purposes is the evidential stage. I quote from the sixth edition of the Code (February 2010), but the substance of the guidance has been the same at all material times:

"The Evidential Stage

4.5 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

4.6 A realistic prospect of conviction is an objective test based solely upon the prosecutor's assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged …

4.7 When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears …."

There follows a list of issues that need to be considered, including a range of issues relevant to the question whether the evidence is reliable.

11. Until 2009, the Director's policy in relation to the taking over of private prosecutions was based on a different evidential test from that in the Code. The earliest available articulation of the previous policy is in a letter of 27 July 1998 quoted in the judgment of the Divisional Court in R v Director of Public Prosecutions, ex p. Duckenfield [2000] 1 WLR 55, 63:

"The policy where proceedings have been commenced by a private prosecutor builds on that contained in the Code for Crown Prosecutors. The right to bring a private prosecution is preserved by section 6(1) … subject to the power under section 6(2). The C.P.S. will take over a private prosecution where there is a particular need for it do so on behalf of the public …. In the instant case where we have been asked by the defendants to take over the prosecution in order to discontinue it, we would do so if one (or more) of the following circumstances applies: there is clearly no case to answer. A private prosecution commenced in these circumstances would be unfounded, and would therefore be an abuse of the right to bring a prosecution; the public interest factors tending against prosecution clearly outweigh those factors tending in favour; the prosecution is clearly likely to damage the interests of justice. The C.P.S. would then regard itself as having to act in accordance with our policy. If none of the above apply there would be no need for the C.P.S. to become involved and we would not interfere with the private prosecution. Clearly there is a distinction between the 'realistic prospect of conviction' test in the Code" - the Code for Crown Prosecutors issued by the D.P.P. under section 10 of the Act of 1985 - "and the 'clearly no case to answer' test mentioned above. Accordingly we recognise that there will be some cases which do not meet the C.P.S. Code tests where nevertheless we will not intervene. It has been considered that to apply the Code tests to private prosecutions would unfairly limit the right of individuals to bring their own cases. Before this decision can properly be made the C.P.S. must be assured that all relevant material has been considered …. Until there has been a detailed review of the many papers in the case the Crown's position cannot be determined …" (original emphasis).

12. The facts in Duckenfield, so far as relevant, were that private prosecutions had been brought against two retired police officers, D and M, in relation to the Hillsborough disaster; and the Director had refused a request by the officers to take over and discontinue those prosecutions, stating that his policy was to take over a prosecution to discontinue it only where there was clearly no case to answer, or the public interest factors tending against the prosecution clearly outweighed those factors tending in favour, or the prosecution was likely to damage the interests of justice. The police officers sought judicial review of that decision. Although D's application was allowed in part, the Divisional Court rejected a challenge by both officers to the lawfulness of the Director's policy.
13. The lead judgment was given by Laws LJ, with whom the other members of the court agreed. The key passage, on which much of the claimant's present case is founded, is at p.68B-E, dealing with an argument based on the Code:

"The argument here, at least as originally put forward in M.'s skeleton argument, was that because of his view (referred to in the reasons letter) that private prosecutors are not bound to apply the Code for Crown Prosecutors (Crown Prosecution Service Annual Report, 1993-94) when deciding whether to institute proceedings, the D.P.P. has erroneously proceeded on the basis that the principles in the Code are irrelevant to his discretion under sections 6(2) and 23(3). But the D.P.P. has nowhere stated that he regards the Code as systematically or generally irrelevant to his power to discontinue. Indeed, as I shall show, there are some aspects of the Code which are reflected in his approach to the question, how his policy should be applied in this case. In truth, however, it could not be right for the D.P.P. to apply across the board the same tests, in particular the 'reasonable prospect of conviction' test referred to in the correspondence, in considering whether to take over and discontinue a private prosecution as the Code enjoins Crown Prosecutors to follow in deciding whether to institute or proceed with a prosecution themselves; the consequence would be that the D.P.P. would stop a private prosecution merely on the ground that the case is not one which he would himself proceed with. But that, in my judgment, would amount to an emasculation of section 6(1) and itself be an unlawful policy; and in fairness Mr. Harrison made it clear that he did not submit so much. The very premise of section 6(1) must be that some cases will go to trial which the D.P.P. himself chooses not to prosecute."

14. Laws LJ's observations reflected in part the statement in the CPS's own letter of 27 July 1998 (para 11 above) that "[i]t has been considered that to apply the Code tests to private prosecutions would unfairly limit the right of individuals to bring their own cases".
15. But the Director has now adopted a policy which does the very thing which Laws LJ thought "could not be right", by applying to private prosecutions the same evidential test as in the Code. The new policy, published on 23 June 2009, refers to the right of private prosecution as preserved by s.6(1) of the 1985 Act and to the power of the Director under s.6(2) to take over private prosecutions. It states that in principle there is nothing wrong in allowing a private prosecution to run its course through to verdict and sentence, but that there will be instances where it is appropriate for the CPS to exercise the Director's powers under s.6(2), either to continue the prosecution or to discontinue it. The important section is that relating to the exercise of the power in order to discontinue the prosecution. The section reads in material part:

"When to take over a private prosecution in order to stop it

A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.

However, even if the Full Code Test is met, it may be necessary to take over and stop the prosecution on behalf of the public where there is a particular need to do so, such as where the prosecution is likely to damage the interests of justice ….

The policy in intervening in private prosecutions when there is no case to answer, or where the public interest factors against the prosecution clearly outweigh those in favour, is lawful, but should be applied to each charge individually: R v DPP Ex parte Duckenfield …; Raymond v Attorney General …."

16. A witness statement of Alex Solomon, of the CPS's Strategy & Policy Directorate, explains that the amendment to the policy followed policy discussions between members of the CPS Policy Directorate and the Director, and gives this broad summary of the rationale that led to the amendment:

"22. The evidential test is set at the level of 'more likely than not to convict the defendant of the charge alleged' in recognition of the costs to society and to the person involved in the trial process of a failed trial procedure. There is an obvious need for a prosecutor to ensure that cases are not brought where there is insufficient evidence, both to ensure that the time of the court and the participants in the process is not wasted when there is little prospect of conviction and to avoid people being unnecessarily put through the strain of a court process which is not realistically likely to result in conviction. This rationale is, in the view of the CPS, applicable to private prosecutions as it is to public prosecutions.

23. The evidential test of a realistic prospect of conviction was recommended in Sir Cyril Philips' 'Report of the Royal Commission on Criminal Procedure', January 1981, Cmnd 8092-1 …. Paragraph 8.9 of the report identified the reasons for the recommendation: 'There is an underlying rationale in the application of this standard [the realistic prospect test] which, in our view, justifies its adoption as the minimum requirement for prosecution in any case. Someone should not be put on trial if it can be predicted, with some confidence, that he is more likely than not to be acquitted, since it is both unfair to the accused and a waste of the restricted resources of the criminal justice system.'

24. The Philips Commission was of the view that this evidential test, which was already applied by the Director of Public Prosecutions (DPP), 'should be extended to all cases, and applied by all who make the decisions that bring a case to court' (paragraph 8.9). It is clear that this included private prosecutions ….

25. The CPS's evidential threshold has been in existence for over 25 years and has stood the test of time. It has not been subject to any serious criticism by Parliament or the courts.

26. So far as I am aware, all public bodies that prosecute criminal offences apply the Code for Crown Prosecutors. Similarly, other organisations that regularly prosecute, such as the Royal Society for the Prevention of Cruelty to Animals ('RSPCA') and the TV Licensing arm of the British Broadcasting Corporation ('BBC'), apply the evidential and public interest tests set out in the Code for Crown Prosecutors ….

27. In respect of the decision to amend the CPS Legal Guidance on Private Prosecutions to apply the evidential stage in the Full Code Test in the Code for Crown Prosecutors, the following reasons were identified:

(i) It is wrong for a defendant potentially to be subjected to proceedings which the State's principal prosecuting authority would not bring because of insufficient evidence.

(ii) It is iniquitous for a defendant to be treated differently simply because of who the prosecutor is.

(iii) Evidentially weak cases where there is not a realistic prospect of conviction consume the resources of the criminal justice system, prejudice those cases which properly should be there and introduce an unacceptable risk that a perverse verdict might be returned.

28. Giving effect to these policy considerations has necessarily entailed the convergence of the evidential stage of the Code for Crown Prosecutors with the threshold for the public prosecutor's intervention in any privately instituted proceedings."

Whether the current policy is lawful

17. For the claimant, Mr Field emphasises the constitutional importance of the right of private prosecution as preserved by s.6(1) of the 1985 Act. He submits that the policy under challenge, by moving from the former "clearly no case to answer" test to the "realistic prospect of conviction" test in the Code, amounts to an emasculation of s.6(1) and is unlawful. He bases himself squarely on the passage in Laws LJ's judgment in Duckenfield quoted at para 13 above, submitting that that passage forms part of the ratio of Duckenfield and should be followed by this court, and in any event that Laws LJ was correct and this court should apply the same reasoning. The reasoning is also said to be supported by the decision in Scopelight & Others v Chief Constable of Northumbria [2009] EWCA Civ 1156. Mr Field contends that the new policy frustrates the right of private individuals to institute criminal proceedings and is contrary to the legislative purpose (see Padfield v Minister of Agriculture, Fisheries and Food [1968] 997), and that by applying it in reaching the decision to take over and discontinue the claimant's private prosecutions the CPS has acted outside the powers conferred by s.6(2). The power to intervene cannot lawfully be exercised unless the right of private prosecution is being misused for mischief. A separate submission is that in formulating the new policy the CPS failed to consider what Laws LJ said in Duckenfield.
18. Alternatively, Mr Field submits that if the CPS is entitled to move to the "realistic prospect of conviction" test, then the primary judgment on the application of the test should be that of the private prosecutor, not of the CPS, and the CPS should intervene only if the private prosecutor has reached a perverse decision by reference to the test. If a private prosecutor reasonably considers there to be a realistic prospect of conviction, the fact that a Crown Prosecutor takes a different view ought not to be a sufficient basis for intervention.
19. For the CPS, Miss Montgomery QC submits that, whilst private individuals have the right to institute criminal prosecutions, there is no policy that they should be permitted to conduct such prosecutions without state intervention for good reason. On the contrary, she points to the Attorney General's long-standing power to enter a nolle prosequi and to the statutory power conferred on the Director since the 1908 Act to take over the conduct of such prosecutions. The 1985 Act retained the right to institute private prosecutions but gave the Director the duty to take over the conduct of certain prosecutions and the power to take over the conduct of others. The power, in s.6(2), is expressed in broad terms and is not subject to the kind of restriction for which the claimant contends. The policy adopted in 2009 as to the basis on which the power will be exercised with a view to discontinuing proceedings is a lawful policy. It must be permissible to have regard to the evidential test in the Code, which by s.10(1)(a) of the 1985 Act has to be applied "in any case", including any case taken over by the Director. The Director is entitled in any event to take the view that the test is an appropriate one in this context, for the reasons summarised in Mr Solomon's witness statement. There can be no legitimate objection to a policy which precludes prosecutions where there is assessed to be no realistic prospect of conviction.
20. Miss Montgomery submits that the observations of Laws LJ in Duckenfield on this issue were obiter and wrong and should not be followed. As to the suggestion that in formulating the new policy the CPS failed to consider Duckenfield, she points to the reference to Duckenfield in the policy itself. At the hearing she also informed the court, on instructions, that the observations of Laws LJ in Duckenfield were in fact taken into account when the policy was formulated. That has since been confirmed in a short witness statement of Arwel Jones, Head of the Law and Procedure Unit in the Strategy and Policy Directorate in CPS Headquarters.
21. Miss Montgomery's response to Mr Field's alternative submission is that there is no reason why the CPS should have to defer to the private prosecutor's view as to the prospect of a conviction rather than forming its own judgment and reaching a decision on the basis of it. A Crown Prosecutor has to apply the test in the Code, forming his own judgment on the prospect of conviction, when deciding whether to institute and continue proceedings. The same approach should apply when those responsible for deciding whether to take over a private prosecution have to consider the application of the same test under the policy relating to private prosecutions. In the present case the police had submitted a file to the CPS for a charging decision before the private prosecutions were brought, but the charging decision was then pre-empted by the institution of the private prosecutions. The CPS must be entitled to form its own view on the prospect of conviction, whether it is deciding in the first place on a charge or deciding on the continuation of proceedings that have been instituted by way of a private prosecution.
22. I am of the clear view that Miss Montgomery's submissions are correct and that the CPS's current policy, in so far as put in issue in this case, is lawful.
23. There is no suggestion that the long-standing evidential test in the Code is unlawful. The Code is issued pursuant to s.10(1) of the 1985 Act to give guidance on the general principles that are to be applied in determining, inter alia, whether proceedings of which the CPS has the conduct should be discontinued. Since the test must be applied if the CPS does take over the conduct of proceedings, it cannot in my view be unlawful to apply that test in determining whether to take over the conduct of proceedings in the first place. Moreover the policy arguments in favour of a uniform approach are compelling and provide a sound basis for the adoption of the Code test when deciding, in the exercise of the broad discretion under s.6(2), whether to take over the conduct of proceedings in circumstances where there is no duty to take them over.
24. I do not accept that the application of the test in the Code to decisions under s.6(2) nullifies or renders nugatory the right in s.6(1) to institute criminal proceedings and to conduct any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply. It is true that the "realistic prospect of conviction" test leaves less scope for the continuation of private prosecutions than did the "clearly no case to answer" test under the former policy. Private prosecutions can continue, however, where the CPS assesses there to be a realistic prospect of conviction (and provided that the other elements of the policy, notably the public interest test, do not tell in favour of intervention, whether with a view to discontinuing the proceedings or with a view to their being carried on by the CPS). In practice, private prosecutions remain far from a dead letter.
25. Thus, the balance struck by the policy seems to me to be fully in line with the statutory scheme and legislative purpose. It does not fall foul of the principle in Padfield (cited above).
26. Although Laws LJ expressed a strong view to the contrary effect in Duckenfield, I am satisfied that what he said was obiter and was heavily influenced by the terms of the policy then in place and by the way the case before him was argued (or not argued). The argument that he was addressing in the relevant passage of his judgment was that the Director had erroneously proceeded on the basis that the principles in the Code were irrelevant to the discretion under s.6(2) and s.23(3). Laws LJ rejected that argument, holding in effect that the Code had been taken into account. He went on to add the observation, which was not necessary for his decision and was not, so far as I can see, the subject of argument, that it could not be right for the Director to apply the same tests across the board, in particular the "reasonable prospect of conviction" test, because the consequence would be that the Director would stop a private prosecution merely on the ground that the case was not one which he himself would proceed with. Whilst that was in line with the remark in the Director's own letter that to apply the Code tests would unfairly limit the right of individuals to bring their own cases, attention had evidently not been given at the time to the considerations that lie behind the new policy or to the implications of s.10(1)(a) of the 1985 Act, and those matters were not drawn to the attention of the court: the issue is more complex than it appeared to the court at the time. Accordingly, although any observation of Laws LJ commands great respect, I do not think that we are required to follow this particular observation or that we should follow it.
27. In the circumstances I very much doubt whether a failure to consider what was said in Duckenfield when formulating the new policy could be a legitimate basis for striking down that policy, but I am satisfied in any event that Duckenfield was in fact taken into account. The witness statement of Arwel Jones, confirming the information provided to the court by Miss Montgomery on instructions, is conclusive of the matter.
28. Scopelight (cited above) does not support the claimant's case. It was concerned with a different issue and casts no light on the lawfulness of the "realistic prospect of conviction" test under consideration here. A private commercial organisation operating as a trade body to counter copyright piracy (The Federation against Copyright Theft Ltd) had brought a private prosecution following a decision by the CPS not to prosecute. Property seized by the police had been passed to the Federation. The claimant brought civil proceedings claiming delivery up of the property, contending that the retention of property following the CPS's decision not to prosecute was unlawful. Whether retention was lawful depended inter alia on whether it was "necessary in all the circumstances" within s.22(1) of the Police and Criminal Evidence Act 1984, in particular on the basis that it was being retained for use as evidence at a trial for an offence or for forensic investigation or for investigation in connection with an offence. The Court of Appeal held that a decision by the CPS not to prosecute was not determinative of the public interest or of whether retention of property was "necessary in all the circumstances". In so holding, it considered Duckenfield, quoting the Director's policy as set out in that case (though the policy had in fact been superseded by the current policy by the time of the Court of Appeal hearing in Scopelight). It drew the conclusion that "there are, or at least may be, circumstances in which it is perfectly consistent for the DPP to decide not to prosecute, yet for him to decline to decide that a private prosecution is not in the public interest so as to justify his interference with it: in other words, he does not consider himself (or, in less significant cases, the CPS) the sole arbiter of the public interest and neither does this court" (para 36). I see no inconsistency between that conclusion and the adoption of the "realistic prospect of conviction" test in the current policy relating to private prosecutions. On the contrary, Scopelight illustrates that private prosecutions remain possible in appropriate cases even where the CPS has decided against instituting a prosecution.
29. If it is lawful for the CPS to adopt the "realistic prospect of conviction" test in the policy relating to private prosecutions, then in my view it must be lawful to provide that the decision-maker within the CPS is to form his own judgment on the prospect of conviction, just as a Crown Prosecutor has to make his own judgment on the evidential test in the Code when deciding whether a prosecution should be instituted or whether proceedings of which the CPS already has conduct should be discontinued. It would be artificial and unsatisfactory to require the decision-maker to consider instead whether it fell within the range of rational views to conclude that there was a realistic prospect of conviction. In any event, the policy does not require such an exercise and cannot be said to be unlawful in not requiring it.
30. I therefore take the view that the claimant's challenge to the policy must fail. That disposes of the first and more important issue in the case.

Whether the decision applying the policy to the facts was rational

31. The second, and subsidiary, issue is whether the CPS's decision to take over and discontinue the private prosecutions in this case was reasonably open to it on the facts, in particular whether the assessment that there was no realistic prospect of conviction was a rational one. Miss Montgomery accepts that there was a case to answer and that under the policy as it stood at the time of Duckenfield the CPS would not have intervened. She also accepts that there was room for more than one view as to whether there was a realistic prospect of conviction in this case. But she submits that the view reached by the CPS was perfectly rational; and if, as I would hold, it is the CPS's view that counts, then the challenge to the lawfulness of the decision to take over the case must fail.
32. Mr Massey's detailed review of the case sets out the following brief outline of the allegations:

"2.1 At approximately 1800 on the 17^th May 2010 Dalvinder Singh [i.e. the claimant] was sat outside the Sahara Café on Derby Road, Southampton with Vijay Swaley and Omar Khobzi. A green car pulled up and Tamoor Mirza and Imran Mirza got out. Dalvinder was then assaulted by the brothers, first being punched by Tamoor and then pushed over a wall where he was kicked. Imran called Dalvinder a 'dirty Patra' and both Tamoor and Imran made it clear that the reason for the attack was because Dalvinder had made a statement against them. Dalvinder sustained minor injuries and arranged for a friend to take photographs. Both Tamoor and Imran made no comment when interviewed on the 26^th July 2010.

2.2 On the 24^th May 2010 between 1600 and 1700 Dalvinder was sat in his car stationary in traffic in St Mary's Road Southampton. He noticed Wajeed Mirza in a silver vehicle in front of him. Wajeed exited the vehicle and called him a 'dirty grass' and threatened to kill him. He also called him a 'dirty Patra'. In interview on the 16^th September 2010, Wajeed denied the offence and raised the possibility of an alibi.

2.3 On the 9^th September 2010 at approximately 1730 Vijay Swaley was in the West Quay shopping centre when he saw the three Mirza brothers. To avoid them he went into Vision Express but says that Imran and Tamoor then stared at him from outside the store while Wajeed made threats towards him about giving evidence. In interview on the 16^th September 2010 Wajeed admitted being at the location but denied making any threats. Tamoor and Imran were interviewed on the 21^st September 2010. Imran denied being present. Tamoor admitted that he was there but denied any threats or intimidation."

33. Mr Massey then refers to an ongoing feud involving the Mirza brothers and the claimant. He describes the dispute as complex and longstanding and states that it is difficult to determine which party is more culpable. There have been serious events, such as arson attacks, but in the main allegations made by both sides have not resulted in convictions.
34. He goes on to set out the material considered and to summarise the relevant law, before turning to his analysis of the case.
35. In relation to the allegation of common assault on 17 May 2010, Mr Massey examines the evidence in considerable detail. He refers to the supporting evidence of the witnesses Vijay Swaley and Omar Khobzi but he points to the fact that they told the police at the scene that they had seen nothing, and to various other inconsistencies in their evidence and in the evidence of the claimant. He refers to the evidence of an injury to the claimant, but he contrasts the minor nature of that injury with the ferocity of the attack alleged by the claimant. He also states that additional doubt is cast on Vijay's reliability as a witness by the fact that Vijay implicates Imran as being involved in the incident of 9 September when the CCTV evidence establishes beyond doubt that Imran was not present, and by the fact that his allegation of being stared at by Tamoor is not supported by the CCTV evidence. Mr Massey refers in addition to a number of other relevant considerations. He concludes with this summary:

"In summary the main factors which support a prosecution are:

Victim has injuries verified by a police officer and the ambulance crew.

The account of the victim is supported by two witnesses. The accounts are consistent in so far as they confirm an assault took place and names the perpetrators of the assault.

Inferences may possibly be drawn from the no comment interviews.

The main factors against are:

Injuries appear slight.

History shows a motive to misrepresent.

Some discrepancies in the accounts of the incident.

Doubts over the reliability and accuracy of Vijay as a witness.

No independent evidence of incident.

These factors tend to reinforce each other. So for example where there is a motive to misrepresent the lack of independent evidence is more important than where no such motive exists.

Having weighed the evidential factors for and against prosecution I have concluded that there is not a realistic prospect of conviction. The test referred to above of 'more likely than not to convict' is not satisfied."

36. As to the allegation of witness intimidation on 24 May 2010, Mr Massey points out that the evidence consists of a brief statement by the claimant unsupported by any other evidence. He notes that Wajeed's alibi has been investigated and not established, but that the prosecution cannot show that it has been concocted by Wajeed. He concludes:

"The Crown must prove its case to the criminal standard. It follows that an unsupported allegation is difficult to prove because, to convict, a court must prefer the evidence of the victim above that of the accused to such an extent that they are sure of guilt. In this case because of the background and the possible motive to misrepresent it is unlikely that the court would be satisfied of guilt. It follows that the evidential test is not met and there is not a realistic prospect of conviction."

37. As I have said, Mr Massey's assessment was endorsed at a high level within the CPS before the decision was made to take over the private prosecutions and to discontinue them.
38. Mr Field criticises various aspects of Mr Massey's reasoning, drawing support for that purpose from observations made by Kenneth Parker J when granting permission to apply for judicial review on the papers. The inconsistencies in the witnesses' evidence are not disputed but it is submitted that they could not by themselves show that there was no realistic prospect of a conviction; and one of the inconsistencies identified in relation to the claimant himself, that in his first police statement he did not mention the incident of 24 May, is attributable to the fact that he was not asked about that offence at the time. Mr Massey, it is said, failed to take into account the fact that identification was not in dispute. His comment that "injuries appear slight" was of no consequence since the allegation was of common assault. There was no evidential foundation for his view that there was a "motive to misrepresent". Too much weight was given to the September incident as casting doubt on the reliability of Vijay; and even if Vijay was wholly unreliable there was still sufficient evidence of the 17 May incident from the claimant himself and from Omar. Mr Massey was wrong to say "no independent evidence of incident", since there was independent evidence of the injury. There was at the very least very strong evidence of an assault occasioning actual bodily harm to the claimant on 17 May. It was unreasonable, in Mr Field's submission, to conclude that there was no realistic prospect of a conviction.
39. Miss Montgomery, on the other hand, submits that this was a rational assessment of the evidence. The relevant material was taken into account and there was no factual or legal error in the appraisal. The inconsistencies in the evidence were more than a simple variation produced by the press of events: the two witnesses originally said they had seen nothing, whereas the claimant alleged a ferocious assault (which is why the slightness of the injury was significant). Vijay's account improved on each telling. It was reasonable to view the inconsistencies as raising real doubts as to credibility and reliability, even leaving aside the September incident relating to Vijay. It was necessary to consider whether there might be a motive for giving an inaccurate account, and Mr Massey was entitled to take into account the possibility of a motive arising from the history of bad feeling between the parties. This was a borderline case even without the September incident, and it was reasonable to conclude that one could not say with confidence that there was more likely than not to be a conviction. The September incident was also relevant and tilted the balance yet further against a conviction. Even if Vijay was not called as a witness, the prosecution would have to disclose that a man who had offered evidence in support of the claimant had given a false or mistaken account of a later incident involving the defendants, and this could probably have been got into evidence in the course of cross-examination of the claimant. As to the incident on 24 May, Miss Montgomery submitted that Mr Massey had plainly been entitled to reach the view he did and that there was no real argument to the contrary from Mr Field.
40. On this issue, too, I would accept Miss Montgomery's submissions.
41. The general approach of the courts is to disturb a decision of an independent prosecutor only in highly exceptional cases: see the citation of authority by Lord Bingham of Cornhill in R (Corner House Research) v Serious Fraud Office [2009] 1 AC 756 at para 30. Lord Bingham went on in para 31 to say that the reasons why the courts are very slow to interfere are well understood: first, that the powers in question are entrusted to the officers identified and to no-one else, and no other authority may exercise the powers or make the judgments on which such exercise must depend; secondly, that the courts have recognised the polycentric character of official decision-making in such matters; and, thirdly, that the powers are conferred in very broad and unprescriptive terms. It is perhaps only the first of those reasons, with its reminder that the relevant judgments are entrusted only to the CPS, that bites directly on the present issue, but it seems to me that the general inhibition against disturbing the decisions of an independent prosecutor must be just as strong where the court is invited to review the rationality of a judgment concerning the prospect of a conviction as it is in relation to other aspects of the decision-making process. The court should be very slow indeed to conclude that the judgment formed by an expert prosecutor as to the reliability of individual pieces of evidence or the likelihood of securing a conviction on the evidence as a whole is so far out that it should be struck down as irrational. This is an area where challenges by way of judicial review are, in my view, to be strongly discouraged.
42. We have had the benefit of detailed consideration of the evidence in this case in the light of the opposing submissions of counsel. The points raised by Kenneth Parker J at the permission stage have been addressed at some length by both sides. I do not think it necessary to go into the detail for the purposes of this judgment. On the material before the court, I am satisfied that the claimant's challenge to the rationality of the CPS's decision must be rejected. Mr Massey did a thorough job of evaluating the evidence. One can nit-pick about details, but there is no point of substance which, on a fair reading of his review, he failed to take into account, nor did he take into account matters that he ought reasonably to have omitted from consideration. His balancing exercise was conspicuously fair. The conclusion he reached was perfectly rational. There is simply no basis for intervention by the court in this decision.

Conclusion

43. For those reasons I would dismiss the application for judicial review.

Mr Justice Edwards-Stuart :

44. I agree. When reading the papers in preparation for the hearing of this appeal I was a little troubled by the absence of any direct reference to the decision in Duckenfield in the witness statement of Mr Solomon. However, as Richards LJ has noted, we were told by Miss Montgomery on instructions that the decision in Duckenfield was considered and taken into account before the policy change was made. We have now seen this confirmed in a witness statement. To my mind, a very significant factor in this case is the effect of section 10(1)(a) of the 1985 Act. Mr Field conceded, in my view correctly for the reasons given by Richards LJ, that, once a private prosecution had been taken over by the Director, the evidential test in the Code had to be applied.
45. As Richards LJ has said, this point does not appear to have been raised or considered by the court in Duckenfield, but in my view it provides a compelling reason why the principal challenge in this case must fail.