High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"I am writing to notify you that the prosecution service has decided, having considered the evidence currently available, not to prosecute you in relation to an incident on 25^th day of May 2007, for which papers were submitted to our offices by the police."

"I can confirm that a formal review of the decisions in this case was carried out in early April on foot of a letter of complaint from one of the alleged victims, namely …………...

The formal review was carried out by a Senior Public Prosecutor. Having done so, it was decided to prosecute Joseph Tsang summarily, if he consents, for offences of assault occasioning actual bodily harm upon both (complainants). A decision to that effect issued on 15 April 2008.

The decision was taken having regard to all the available evidence and information."

Paragraph 4 sets out the test for prosecution -

"The Test for Prosecution is met if:

i. the evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and

ii. prosecution is required in the public interest – the Public Interest Test".

Paragraph 4.11 provides for the review of prosecution decisions –

"4.11.1 People should be able to rely on decisions taken by the Prosecution Service. Normally, if the Prosecution Service tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, that is the end of the matter and the case will not start again.

4.11.2 However, there may be reasons why the Prosecution Service will review a prosecution decision, for example, where new evidence or information becomes available or a specific request is made by a person, typically a victim, involved in the case. It is impossible to be prescriptive of the cases in which a review will be undertaken and a flexible approach is required.

4.11.3 Where a review is to be conducted the following approach is to be taken:

1. If no additional evidence or information is provided in or connected with the request to review the original decision, the case will be considered by a Public Prosecutor other than the Public Prosecutor who initially took the decision now under review.

That Public Prosecutor conducting this review will consider the evidence and information reported in the investigation file, together with the decision which has been reached. There are two potential outcomes of such a review:

i. If the Public Prosecutor who considers these matters concludes that the decision was within the range of decisions that a reasonable prosecutor could take in the circumstances, then the initial decision will stand and the request for review dealt with on that basis.

As a general rule, a decision will fall within the range of decisions that a reasonable prosecutor could take if there has been:

no error of law;

no failure to take into account relevant circumstances;

no evidence of taking into account irrelevant factors; and

no indication of bad faith or other improper motive.

ii. If the Public Prosecutor who considers these materials concludes that the original decision was not within the range of decisions that could reasonably be taken in the circumstances, then that prosecutor will apply the Test for Prosecution and reach a fresh decision in the case. This may require further enquiries being made by police in pursuance of section 35(5) of the Justice (Northern Ireland) Act 2002 or the obtaining and considering the advice of counsel or, in appropriate cases, arranging to consult with witnesses."

Paragraph 4.11 continues by dealing with those cases that do involve additional evidence or information being available.

[6] In response to the application for leave to apply for judicial review an affidavit was filed by Mr Mateer QC, deputy District Judge (Magistrates' Courts), who made the decision in question. He set out in the affidavit that he took into account the circumstances in which a stay of proceedings may arise being, in the first place, that a fair trial was not possible or secondly, that it would be unfair to try the defendant; he referred to his notes and stated that the prosecution had faithfully applied the terms of its Code for Prosecutors, which he described as a publicly available document which the defendant and his representatives would have been free to consult, which outlines a number of circumstances in which a decision not to prosecute can be reversed; he stated that other than reversal of the applicant's expectations as to what might happen, he was not given any indication of any additional detriment to the applicant; he indicated that he had been informed that a senior prosecutor had reconsidered the available evidence and concluded that the original decision not to prosecute was not within the range of decisions which a reasonable prosecutor could have taken; he then referred to the fact that the prosecution informed him that they were relying on paragraph 4.11.3.1 and he felt it proper to satisfy himself that the senior prosecutor's conclusion that the earlier decision was not within the reasonable range of decisions was one that was open to the senior prosecutor; for that reason he considered the tendered evidence and considered that there was a prima facie case against the applicant, that any prosecutor considering the material could reasonably conclude that the test for prosecution was met and that it was within the prosecutors discretion to determine, as he had done, that the earlier decision not to prosecute was not within the reasonable range of decisions. The deputy District Judge looked at the issue of prejudice. He was told that the application was made solely on the grounds that it would be unfair to try the applicant due to the reversal of the prosecution's earlier decision not to prosecute the applicant. He stated his conclusion to have been that no unfairness had been made out such as to require a stay of proceedings notwithstanding the decision of the PPS to reverse the earlier decision that had been communicated to the defendant.

(a) The District Judge erred in law in failing to stay the prosecution against the applicant and the said decision was unlawful in that:

(1) The District Judge failed to vindicate the Applicant's substantive legitimate expectation that he would not be prosecuted, said legitimate expectation based upon and induced by correspondence directed to him by the PPS on 21^st November 2007;

(2) The District Judge acted contrary to the common law fundamental rights standards, in particular the public interest in upholding a promise made by an officer of the State in the context of criminal proceedings.

(3) The District Judge wrongfully acted in reliance upon the PPS Code for Prosecutors and the contention that following the Code thereby entitled the prosecution to proceed notwithstanding an earlier promise not to prosecute.

(4) The District Judge wrongfully acted in reliance upon the said Code for Prosecutors without establishing that the said Code was rational, objective, and non-arbitrary.

(5) The District Judge wrongly acted in reliance upon the Public Prosecution Service's assertion that it had followed its Code for Prosecutors, when there was no or insufficient material placed before the District Judge by the PPS demonstrating it had so followed the said Code.

(6) The District Judge wrongfully considered that lack of specific and identifiable prejudice to the Applicant entitled the prosecution to proceed notwithstanding an earlier promise not to prosecute.

(7) The District Judge in considering whether the PPS had followed the aforesaid Code wrongfully considered the evidence and made his own assessment of whether or not the original decision not to prosecute the Applicant was the correct decision, and furthermore made such assessment in the absence of any materials from the PPS showing how that decision had been made or the subsequent review carried out.

(b) The District Judge in failing to require that the PPS produce material demonstrating that the Code for Prosecutors had in fact been correctly followed, failed to discharge is duty of inquiry and failed to take into account a relevant consideration, namely that there was no evidence that the PPS had correctly followed the Code for Prosecutors.

(c) The District Judge failed to take into account relevant considerations (or gave manifestly insufficient weight to certain considerations) and, in particular, improperly failed to take into account:

i The fact that there had been no new evidence, or no material change of circumstances, in the period between the PPS advising the applicant that he was not to be prosecuted, and the PPS causing the summons to be issued against the applicant.

ii The fact that the correspondence from the PPS to the applicant advising that he was not to be prosecuted, advised the applicant that the decision was made on the "evidence currently available" and was not otherwise qualified or conditional.

iii The passage of time and delay between the date of the alleged offences, the date of the applicant being informed he would not be prosecuted, and the date of issue of the summons against the applicant.

iv The fact that the PPS did not provide to the Court any or adequate detail of the reasoning of the decision not to prosecute the applicant, nor any or adequate detail of the basis on which it was determined that the decision not to prosecute the applicant should be overturned.

v The fact that the PPS did not provide to the court a copy of the letter ….. that led to the decision to initiate a prosecution against the Applicant.

vi The fact that there was, in respect of the decision not to prosecute:

(1) No error law

(2) No failure to take into account relevant considerations

(3) No evidence of taking into account irrelevant considerations

(4) No indication of bad faith or other improper motive

and that it is not apparent therefore that the PPS followed its Code for Prosecutors.

(d) The District Judge took into account irrelevant considerations (or gave manifestly excessive weight to certain considerations) and, in particular, improperly took into account:

i The issue of whether or not the PPS followed its "Code for Prosecutors" in respect of the initiation of proceedings against the Applicant notwithstanding the earlier decision not to prosecute.

ii The submission by the PPS that the original decision not to prosecute the applicant was not within the range of decisions which a reasonable prosecutor could have taken.

iii The submission by the PPS that lack of specific prejudice to the applicant meant that a stay of prosecution should not be granted.

iv The evidence tendered against the applicant, and the applicant's interview, in determining that the PPS were entitled to prosecute the applicant notwithstanding the original decision not to prosecute.

(e) The District Judge failed to strike the correct balance between all the relevant considerations.

(f) The District Judge has acted in breach of the applicant's rights under the European Convention, contrary to his obligation under section 6 of the Human Rights Act 1998, and, in particular, has acted in breach of the applicant's rights under Article 6 of the Convention by refusing the applicant's application for a stay:

1. Notwithstanding the absence of any fresh evidence against the applicant since the decision not to prosecute.

2. Notwithstanding the unambiguous nature of the decision not to prosecute communicated to the applicant.

3. Notwithstanding the failure by the PPS to disclose the actual reasoning of the decision not to prosecute and the subsequent decision to prosecute.

4. Notwithstanding that the PPS did not disclose a copy of the letter …. that led to the decision to prosecute the applicant.

5. Notwithstanding the delay between the alleged offences, and the decision to prosecute, and the delay between the decision not to prosecute and the decision to prosecute.

(g) The District Judge's decision was unreasonable in the Wednesbury sense.

The grounds relating to the Director of Public Prosecutions are:

(a) The Code for Prosecutors introduced by the Director pursuant to Section 37 of the Justice (Northern Ireland) Act 2002 is necessarily inconsistent with, and in violation of, the rights of the applicant under Article 6 of the European Convention by virtue of representing infringement of those rights which are neither proportionate nor necessary in democratic society and are accordingly in breach of the Office's obligation under Section 6 of the Human Rights Act 1998.

(b) The said Code for Prosecutors provides for a decision-making process in respect of Review of Prosecution Decisions (at paragraph 4.11) which is irrational, lacks transparency and objectivity and has the potential for arbitrariness and thereby is contrary to the common law fundamental rights standards and the Applicant's fair trial rights under Article 6 of the European Convention.

(c) The said Code for Prosecutors (at paragraph 4.11) fails to accord sufficient weight to the public interest in upholding a promise made by an officer of the State in the context of criminal proceedings and is thereby contrary to the, common law fundamental rights standards and the Applicant's fair trial rights under Article 6 of the European Convention.

(d) The said Code for Prosecutors (at paragraph 4.11) fails to accord sufficient weight to the Applicant's substantive legitimate expectation that he would not be prosecuted in respect of certain offences.

"The letter makes it plain that the respondent is not discontinuing the prosecution because she has concluded that the applicant is innocent, but because there is insufficient evidence to provide a realistic prospect of conviction. The possibility of re-opening the prosecution is referred to in the event of further evidence becoming available. Thus the letter dispels, at least in part, the reassurance which might otherwise be drawn from the discontinuance…..

I do not believe that the letter should, or could, have had any effect on the decision of the respondent to reinstitute the prosecution in the case.

Notwithstanding this conclusion, I would recommend the respondent to reconsider the terms of the standard letter of discontinuance. I am inclined to think that it would be more satisfactory if this simply annexed (the relevant portion) of the Code by way of explanation of the circumstances in which a prosecution might be reinstituted."

It will be noted that the original decision letter referred to review in the event of new evidence and the decision to prosecute was not based on new evidence but on the ground permitted under the Code that the original decision was clearly wrong. The terms of the original decision letter did not prevent the review decision being upheld.

[20] The context of the District Judge's decision was an abuse of process application. There are two grounds for such an application. The first is that there would be an unfair trial in the circumstances and the second is that it would be unfair to proceed to trial in the circumstances. The District Judge was satisfied that in respect of both grounds there was no unfairness and he rejected a stay for abuse of process. The applicant contends that the provisions of the Code relating to the review of prosecution decisions involve unfairness to an accused, both at common law and under the right to a fair trial under Article 6 of the European Convention. I am satisfied that the common law rights and the Article 6 rights coincide in these circumstances. There is no breach of either right in principle in having a power of review of prosecution decisions in the circumstances set out in the Code. The power to review prosecutions is circumscribed in the manner set out in the Code, which is published and thus accessible. Whether there is such unfairness in a particular case will be determined in the criminal proceedings. The District Judge decided that there was no such unfairness in the particular circumstances of this case.

[22] The District Judge undertook the task of deciding for himself whether or not the decision to prosecute was well founded and concluded that it was. The applicant objects to the District Judge undertaking that task. There is no basis for contending that the task undertaken by the District Judge should be set aside either as improper or as corrupting his overall conclusion. Further the applicant contends that there was not sufficient evidence on which the District Judge could have been satisfied as to the approach of the PPS. However I am satisfied from the affidavit of the District Judge that there was an evidential basis for his conclusions as to the actions taken by PPS. The applicant also raises a challenge to the rationality of the decision. I am satisfied that there is no basis on which the decision could be set aside on the ground of rationality. The District Judge has, it seems to me, carried out his decision-making process impeccably.