The Supreme Court recently handed down its judgment in the appeal brought by Davlinder Singh Gujra relating to his challenge to the CPS’s policy of taking over and discontinuing private prosecutions (see previous blog here).

Mr Gujra argued that the CPS’s policy of stopping private prosecutions, under section 6(2) of the Prosecution of Offences Act 1985, where there was ‘no realistic prospect of conviction’ was unlawful. Prior to the policy being introduced in 2009, the question had been whether there was ‘no case to answer’ which was clearly a much lower threshold.

The five-strong bench held, by a majority of 3 to 2 (Lord Mance and Lady Hale dissenting),  that the new ‘realistic prospect of conviction’ threshold as set out in the CPS policy did not frustrate the constitutional importance of being able to bring private prosecutions and that this was a more relevant question than ‘no case to answer’. The majority were particularly persuaded by the need for consistency in conducting all prosecutions, no matter whether they are commenced by a private person or a public prosecution agency. An inconsistent approach could lead to a defendant being subject to a private prosecution where there was no evidence giving rise to a realistic prospect of conviction. This would provide him or her with legitimate grounds for grievance. The majority were also conscious that applying the more stringent test protected against wasting scarce court resources, which inevitably would lead to the undermining of public confidence.

In her strongly-worded dissenting judgment, Lady Hale felt that the new policy emasculated the right of the private individual and left them at the mercy of the prosecuting authority. The possibility of judicially reviewing a decision was, for Lady Hale, unlikely and the new policy threatened rights under Article 3 and 8 of the ECHR.

Therefore the current CPS policy on discontinuing prosecutions remains good law. But only just. The lengthy judgments given by all five judges demonstrate the difficult questions faced by the court. The one cohesive element that ran throughout every judgment however, was the respect each had for maintaining the right to bring private prosecutions. The problem lay in deciding how best this would be managed. The arguments put forward in favour of the current test were both practical and sensible. Applying this threshold does not eliminate private prosecutions, it simply promotes consistency and therefore fairness – and that’s what is needed in a justice system.

R (on the application of Gujra) (FC) (Appellant) v Crown Prosecution Service (Respondent) [2012] UKSC 52