united-kingdom criminal-law england-and-wales prosecutorial-discretion
Can a decision to prosecute be judicially appealed?
<p>Meet Charlotte. Charlotte is suspected of a crime, in respect of which a decision was made that it was sufficiently in the public interest so as to charge her.</p>
<p>Charlotte meanwhile disagrees with this assessment and has argumrnts to the contrary.</p>
<p>Is there any mechanism whereby she can bring about an opportunity to plead these arguments to a court so as to challenge the executive decision to prosecute her prior to her trial?</p>

<p>See <em>James v Director of Public Prosecutions</em>, <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2015/3296.html" rel="noreferrer">[2015] EWHC 3296</a> at paragraphs 26-28.</p>
<p>It summarizes that there is no path to independently challenge the exercise of prosecutorial discretion to charge. Such a challenge would have to arise in the context of the actual trial via an allegation of an abuse of process, the remedy for which would be a stay of the charge.</p>
<p>See also <em>Barons Pub Company Ltd, R (on the application of) v Staines Magistrates' Court</em>, <a href="https://www.bailii.org/ew/cases/EWHC/Admin/2013/898.html" rel="noreferrer">[2013] EWHC 898</a> at paragraph 36:</p>
<blockquote>
<p>In our view the Magistrates' Courts have no power of review of a prosecutorial decision other than through an abuse of process application. As has been made clear in a number of decisions, including R v A(RJ) [2012] EWCA Crim 434, [2012] 2 Cr App R 80, and more recently in Moss &amp; Son Ltd v CPS [2012] EWHC 3658 (Admin), if there is a challenge to the decision to prosecute, it must always be made in the criminal proceedings, unless there is some reason why it cannot be so made. The only way in which it can be made in Magistrates' Court proceedings is by an abuse of process application. That in itself is an exceptional remedy.</p>
</blockquote>
<p>The abuse-of-process standard is very high; a mere disagreement as to the public interest in bringing a charge is nowhere near the standard to show an abuse of process.</p>
<p>I can't find a succinct explanation of the rationale for this in a UK decision, but here is the rationale from Canada's Supreme Court (which takes essentially the same position as the UK). See R. v. Nixon, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7949/index.do" rel="noreferrer">2011 SCC 34</a>, quoting Krieger v. Law Society of Alberta, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2007/index.do" rel="noreferrer">2002 SCC 65</a></p>
<blockquote>
<p>The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution.  Subject to the abuse of process doctrine, supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court.  . . . The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute.  To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution.  Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.</p>
</blockquote>

<h2>Not before trial</h2>
<p>It's really hard or impossible to force the prosecution to prosecute some act - or not to. That's called Prosecutorial Discretion Let me point to this excellent <a href="http://wrap.warwick.ac.uk/81689/" rel="nofollow noreferrer">(UK&amp;France comparative PHD thesis on the topic)</a>.</p>
<p>In the UK, prosecution by the state is relatively new, as the PHD thesis above shows and explains the background how the crown prosecution came to me. It all started with the Policemen just acting as a stand-in for victims in the late 1800s.</p>
<blockquote>
<p>The
Prosecution of Offences Act 1879 created the office of Director of Public Prosecutions
(DPP) who was responsible for the prosecution of important or complex cases and to
give advice to Chief Officers of Police. The DPP was appointed by the Home
Secretary, but acted under the ‘superintendence’ of the Attorney General. From 1908,
they were also given the power to take over private prosecutions. It was the police,
however, who remained in charge of most prosecutions: ‘[b]y 1960 the DPP’s cases
amounted to only 8 per cent of the total number of prosecutions for indictable
offences’. [...]</p>
<p>In 1962, the Royal Commission on the Police under the
chairmanship of Henry Willink disapproved the use of the same police officers to
investigate and prosecute cases. It recommended that each police force had its own
prosecuting solicitor’s department.  Some, although not all, police forces followed this
recommendation. [...]</p>
<p>In order to remedy those concerns, a Royal Commission on Criminal Procedure was
set up in 1978 under the chairmanship of Sir Cyril Philips to suggest ways to reform
the English criminal justice system. It found that police officers who investigated a
case were reluctant to abandon it despite apparent weaknesses. As a result, a high
number of weak cases were taken to court, which led to a high percentage of judge directed acquittals. Furthermore, there were no national standards to decide whether
or not to prosecute, each police force relying on its own standards. In its 1981 report,
the Philips Commission recommended the introduction of a new independent
prosecution authority to review police cases and decide whether or not to prosecute
them.26 The ‘Philips principle’,27 as it became known, separates the investigative and
the prosecuting functions within the criminal justice system. It recommends that these
two functions are given to two institutions, independent from each other. The
Prosecution of Offences Act 1985 created the Crown Prosecution Service (CPS) with
the DPP at its head, who would be appointed by the Attorney General (not the Home
Secretary as before) and continues to act under her or his superintendence. Organised
in 31 areas each headed by a Chief Crown Prosecutor reporting to the DPP, the CPS
started operating in 1986. [p.14-17]</p>
</blockquote>
<p>Now, how does the prosecution decide on which case to prosecute?</p>
<blockquote>
<p>Countries of common law tradition normally opt for the opportunity principle;
England and Wales do not depart from this rule. In 1951, Sir Hartley Shawcross, who
was then Attorney General, made the classic statement on public interest: ‘[i]t has
never been the rule in this country – I hope it never will be – that suspected criminal
offences must automatically be the subject of prosecution’. He added that there should
be a prosecution: ‘wherever it appears that the offence or the circumstances of its
commission is or are of such a character that a prosecution in respect thereof is
required in the public interest’.30 This approach has been endorsed by Attorneys
General ever since. The newest edition of the Code for Crown Prosecutors31 published
in January 2013 follows the Shawcross statement and confirms that ‘where there is
sufficient evidence to justify a prosecution, prosecutors must go on to consider
whether a prosecution is required in the public interest’. 32 [p.19]</p>
</blockquote>
<p>So, it is very traditional that nobody can force the prosecution to prosecute in the UK. The relevant code is the mentioned <a href="https://www.cps.gov.uk/publication/code-crown-prosecutors" rel="nofollow noreferrer">Code for Crown Prosecutors</a>. This explicitly says who can dictate prosecution and who not (emphasis mine):</p>
<blockquote>
<h3>The Decision Whether to Prosecute</h3>
<p>3.1 In more serious or complex cases, <strong>prosecutors decide whether a person should be charged with a criminal offence</strong> and, if so, what that offence should be. Prosecutors may also advise on or authorise out-of-court disposals as an alternative to prosecution. They make their decisions in accordance with this Code, the DPP’s Guidance on Charging and any relevant legal guidance or policy. The police apply the same principles in deciding whether to start criminal proceedings against a person in those cases for which they are responsible.</p>
<p>3.5 Prosecutors <strong>should</strong> not start or continue a prosecution where their view is that it is highly likely that a court will rule that a prosecution is an abuse of its process, and stay the proceedings.</p>
<h3>The Full Code Test</h3>
<p>4.1 Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test. The exception is when the Threshold Test may be applied (see section 5).</p>
<p>4.2 The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.</p>
</blockquote>
<h2>When can Charlotte stop things?</h2>
<p><strong>After charges are filed</strong> Charlotte might try to file for dismissal, based on <em>the evidence that the crown brought</em>. However, it would need to be very very clear that the crown has no case. At this point, the crown usually doesn't even bring it in the first case.</p>
<p>Only <strong>after the trial has started</strong>, Charlotte can ask the court to stay for prosecutorial misbehavior, which is a really high bar. The easier way against that is actually to win the case - as that prevents repeat charges.</p>

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<p>If this happened in the US, the rules and procedures are somewhat different, but the general idea, that the prosecutor has wide discretion, is the same.</p>
<h2><em>Habeas corpus</em></h2>
<p>If Charlotte has been arrested or otherwise detained, she can (probably through here lawyer) obtain a writ of <a href="https://en.wikipedia.org/wiki/Habeas_corpus" rel="noreferrer"><em>Habeas corpus</em></a>. This is a method of challenging an allegedly unlawful or improper detention. If the court finds that the detention does not have a lawful basis it will free Charlotte. This will not stop the prosecutor from proceeding to make out a case, but often a prosecutor will choose not to proceed in the face of such a ruling.</p>
<p>A <em>Habeas</em> petition is the obvious way to proceed when it is claimed that Charlotte's detention is unlawful, for example if the law she is accused of violating is unconstitutional, or is being unconstitutionally applied, or has been repealed, or does not apply to her. This procedure can also be used to challange an arrest warrant. This procedure is also used by people convicted of crime to challenge the legitimacy of their convictions.</p>
<h2>Motion to Dismiss</h2>
<p>If charges against Charlotte have been filed with a court, she can present a <em>Motion to Dismiss</em>. This basically claims that the prosecution's allegztions, even if they were all true, would not justify convicting  her, and that no reasonable judge or jurycould lawfully do so.</p>
<p>If the court accepts the motion, the charges are dismissed.</p>
