Private Prosecutions – the Gujra Case

Private Prosecutions – the Gujra Case

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Introduction

The Supreme Court gave judgment on 14th November in the case of R (Gujra) v CPS [2012] UKSC 52 dealing with the question of when it is lawful for the Crown Prosecution Service (CPS) to take over a private prosecution and discontinue it.

Mr Gujra alleged that he had been assaulted on 18th August 2010 by two brothers. He complained to the police who investigated the matter and passed the case to the CPS to decide on whether a prosecution should be launched by them. Whilst they were deciding, Mr Gujra started a private prosecution (ie, prosecuted by himself, rather than by the CPS on behalf of the public). The CPS then considered whether they should take the decision to ‘take over’ the prosecution and ‘discontinue’ it – stop it in effect. They decided that they should do so.

In deciding whether to prosecute, the CPS has a policy that guides their decision of whether there is enough evidence to prosecute, and whether it is in the public interest to prosecute. The CPS had a policy on private prosecutions that stated that they will take over and discontinue cases where their own code would indicate that the case should not be prosecuted.

Mr Gujra was unhappy with this and launched a Judicial Review in the High Court. The High Court dismissed the application, holding that the CPS policy was lawful.

Decision

The Supreme Court held (by a 3-2 majority) that the policy was lawful. The appeal centred around the meaning of s6 Prosecution of Offences Act 1985. This reads as follows:

(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.

The majority concluded that whilst this preserved the right of any individual to start a private prosecution, s6(2) was wide enough to mean that the CPS (through the Director – the Director of Public Prosecutions – the DPP) could adopt the policy that they did. The policy was consistent with the law.

Discussion

Will this affect many people? The short answer is no. There are very few truly private prosecutions in England and Wales (the majority are by quasi-public bodies like the RSPCA).

It does however raise an important constitutional question as to to what extent the state has a monopoly on access to the criminal courts.

On the one hand, the CPS as a public body can be judicially reviewed over a decision that make not to prosecute someone (see the famous case of De Menezes), so there is a check there the CPS do not act arbitrarily. Also, the criminal courts are there to pass a public comment on someone’s behaviour on behalf of the public and not to arbitrate private grievances. An individual has a right to sue someone from the harm done to them in a private case in the County Court. To that extent, it is right that the CPS have a robust policy on private prosecutions.

On the other hand, it is imporant that a private citizen can hold people to account for their actions. One famous private prosecution is the case of R v Davies where two protitutes brought a successful private prosecution after the CPS declined to prosecute. This had a profound impact on the way that the authorities saw victims of rape and perhaps shows the continuing importance of the ability of the citizen to launch a private prosecution as a method of last resort.

Conclusion

Although this appears to be a somewhat dry case, it is one that is worth reading for the discussion of the history of how the CPS developed.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

11 COMMENTS

  1. If the CPS didn’t prosecute R v Davies, that implies that R v Davies didn’t meet the criteria of their “deciding whether to prosecute” policy. Therefore, applying their “policy on private prosecutions”, they should have sabotaged R v Davies the same way as they sabotaged Mr Gujra’s prosecution.

    Is there therefore an unwritten meta-policy that countervailed, giving occasional discretion that the written policy withholds, that substituted a laissez-faire that resulted in conviction of the rapist, for the usual spoilsport inflexibility?

    If so, then there IS discretion, and where there is discretion, there is a decision capable of judicial review, surely?

    Also, I thought that rigidity where unfettered discretion was called for, a blanket policy where each case should be considered on it own merits, was itself covered by the modernised Wednesbury criteria.

    In Gujra, the court held that the CPS could fetter, with a written blanket policy, any discretion it might have had, and such as it exercised in deviating from the blanket policy by allowing the rapist Mr Davies to be convicted, against its own better judgment.

    It all seems very unsafe to me. Either the CPS were wrong not to allow the rapist to escape justice in Davies by deviating from their own policy, or the CPS _could_ have been wrong, even though they followed their own policy on that occasion, to allow the brothers who allegedly attacked Mr Gujra to escape justice, a possibility that the court refused to consider. The state seems to want to have its cake and eat it.

      • Sorry, had a brain freeze! The Davies case is from nearly 20 years ago (1995). The CPS has changed a lot since then. That case lead to a big change in how the CPS prosecuted rape cases.

        Also, in those days there weren’t any real policies that the CPS had. There were some of course, but nowhere near the amount that there are now. In those days there wouldn’t have been any question of the CPS taking it over and dropping it.

        When the high court looks at a judicial review there is always an amount of flexibility. Also, the high court judge will not ask themselves “what do I think? Is the test under the code met?” But rather “is the decision reached by the CPS one which a sensible prosecutor could make?”

        This does stop every case being challenged in the hope that the judge will take a different view, but it does mean there is an element if uncertainty there. It also means that there is an element of ‘luck of the draw’ depending on which person looks at it. It could be said that this can be unfair?

  2. “the high court judge will not ask themselves”

    Oh dear. I know you are trying to avoid gender-specific language but most of the judges of the High Court are one person, or at least one at a time.

    Try this: the question for the High Court judge will not be . . .

    Non-sexist and it does not involve “the cold-blooded murder of the English tonggue”!

      • It’s good training in precise writing. There is always a way!

        Just don’t go to the lengths of one of the American law reviews which requires female pronouns for hypothetical persons except, from memory,

        (1) persons who must be male, such as the defendant in a rape trial;
        (2) persons holding an office which must be held by a man, such as a Catholic bishop;
        (3) the holder of an office which is defined in gender-specific terms by the document which creates it, such as the President of the United States;
        (4) the holder of an office which at the time under discussion could only be held by a man, such as any American judge if you are writing an article about a nineteenth-century case; and
        (5) the holder of an office which could be held by a woman but has not yet been, such as the Chief Justice of the United States, where you may use “he” or “she” as you prefer.

        A tad over-prescriptive for my taste!

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