The CPS Duty To Pull The plug: Gujra Analysed

Article by Katherine Hardcastle, pupil at 6 Kings Bench Walk.

When should the Crown Prosecution Service (CPS) be able to take over and put a stop to private prosecutions?

Introduction:

The vast majority of private prosecutions are brought by the state. However in cases in which the state does not bring a prosecution section 6(1) of the Prosecution of Offences Act 1985 (the 1985 Act) allows for individuals to bring private prosecutions. There is a strong historical and constitutional basis in entitling ordinary members of the public to bring private criminal proceedings. With the right of access to justice at the heart of private prosecutions section 6(1) of the 1985 Act forms a historic safeguard against wrongful refusal or failure by public authorities to institute prosecution proceedings. The right of an individual is however somewhat tempered. Firstly in that the Attorney General has a long held power to end proceedings by entering a nolle prosequi and secondly by Section 6(2) of the 1985 Act which confers upon the DPP a power to take over a private prosecution for the purpose of discontinuing it. In determining whether or not to take over a prosecution the DPP has a clear policy in which he applies a certain criteria. The DPP's first criteria is based on the strength of evidence in support of the prosecution. Prior to 23rd June 2009, the strength of evidence criteria was based on whether there was no case for the defendant to answer. If the DPP concluded that on the basis of the evidence there was no case to answer he would take over the prosecution and discontinue it. However since June 2009, under the Code for Crown Prosecutors, the DPP has been required to consider 'whether there is sufficient evidence to provide a realistic prospect of conviction.' In short this may be described as the 'reasonable prospect' test and is the evidential threshold for all prosecutions bought by the state. This policy and the first set of criteria was the basis of an appeal to the Supreme Court. On 4th October 2012 Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson were asked to review the lawfulness of the DPP's current policy. Judgment was given on 14th November 2012. Background:

Dalvinder Singh Gurja, the appellant, launched a private prosecution in September 2010 against three men for allegedly assaulting, threatening and intimidating him. The following month, upon reviewing the material, the CPS decided that there was insufficient...