The Supreme Court gave judgment on 14th November in the case of R (Gujra) v CPS  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.
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.
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.
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.