Who Will Guard the Guardians? Challenging the Decision to Prosecute

1. Recent years have seen a quiet revolution take place in public law challenges to decisions of public prosecuting bodies, such as the Crown Prosecution Service (CPS) and Serious Fraud Office (SFO). After a long line of authorities in which the courts took a restrictive approach to such claims, a spate of cases and European legislation, the availability of judicial review in this area began to open up after 2010. As a counter to this growing trend, the Victims’ Right to Review Scheme (VRR) was introduced in 2013. The VRR created a new mechanism for those involved in the criminal justice system to challenge CPS decisions, without having to go to the expense of formal court proceedings.

2. Nonetheless, the courts are still faced with attempts to challenge decisions to prose- cute, either directly through judicial review or through abuse of process applications. Increasingly, decisions to prosecute are being retrospectively examined and impugned through the mechanism of costs applications. The approach of the courts to these costs applications is of wider relevance and application to all public law challenges of decisions to prosecute.

3. This article charts the evolution of public law challenges against prosecutors, both before and after the establishment of the VRR, before looking at the potential for alternative challenges to prosecutorial decisions through the costs regime. It concentrates primarily on challenges to decisions either to prosecute or not to prosecute, as made by the CPS and Director of Public Prosecutions (DPP). The effectiveness of the VRR will be considered, along with a number of proposed reforms to the scheme. The article concludes with a brief examination of the potential for private law and rights-based challenges.

[To read the rest of this paper, see the journal Judicial Review, 2017, 22(2), 124-142, or contact Thom]