Although most prosecutions are brought by the state, individuals are permitted to bring proceedings under section 6(1) of the Prosecution of Offences Act 1985. This forms an important safeguard against wrongful refusal or failure by public authorities to institute proceedings. Previous examples of high profile private prosecutions have included the unsuccessful attempt brought by the family of Stephen Lawrence in 1994, the 1977 blasphemy case against The Gay News and Oscar Wilde’s failed libel prosecution of the Marquis of Queensbury in 1895.

Where a private prosecution is commenced, the state retains the ultimate decision as to whether it continues. In accordance with section 6(2) of the Act, the DPP is able to take over a prosecution for the purposes of discontinuing it, something he has not been afraid to do in the past. However, on the 4 October 2012, the Supreme Court was asked to review the lawfulness of the DPP’s current policy.

Dalvinder Singh Gujra, 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 evidence to provide a realistic prospect of conviction and notified Mr Gujra’s solicitors that they intended to take over and discontinue the prosecution. Following an unsuccessful judicial review application to the High Court, Mr Gujra appealed to the Supreme Court.

Before commencing with any prosecution, the DPP is not only required to consider whether it is in the public interest to prosecute but must also assess whether the evidence meets the necessary threshold. With regard to privately brought prosecutions, the DPP formerly considered whether there was ‘clearly no case to answer’. Since June 2009, under the Code for Crown Prosecutors, he has been required to consider ‘whether there sufficient evidence to provide a realistic prospect of conviction’ – the evidential threshold for all prosecutions brought by the state.

In rejecting Mr Gujra’s judicial review, the High Court found that (i) the CPS policy was lawful and (ii) the decision made in relation to his prosecution was rational. In addressing the 2009 policy, the court recognised but quickly dismissed the views expressed in R v Director of Public Prosecutions, ex p. Duckenfield [2000] 1 WLR 55. In Duckenfield, a case concerning proceedings against two police constables linked to the Hillsborough disaster, Laws LJ stated that applying the ‘reasonable prospect of conviction’ test when considering private prosecutions would emasculate section 6(1) of the Act as “the very premise of section 6(1) must be that some cases will go to trial which the DPP himself chooses not to prosecute.” The High Court found this not to be so. It concluded that applying the same test was properly lawful as section 10(1) of the Act requires the Code for Crown Prosecutors to be applied to any case. The court further found that the CPS must be entitled to take a view on the prospect of conviction, regardless of who institutes proceedings.

Will the Supreme Court judges follow the High Court or revert to the reasoning in Duckenfield? Whilst the force of the argument that the Code for Crown Prosecutors should be consistently applied and the courts’ well known reluctance to interfere with independent prosecutors’ decisions certainly suggests the former, the answer remains firmly within the Supreme Court’s hands. Judgment is expected within the next couple of months.

R (on the application of Gujra) (FC) v Crown Prosecution Service [2011] EWHC 472.