The Guardian Law section has launched a rather handy new series of headnotes. The first case to be profiled was the R (Gujra) v CPS, which was heard in the Supreme Court on the 4th October. The headnote below, posted by Guardian Law Editor Siobhain Butterworth, provides an excellent summary.
When should the Crown Prosecution Service be able take over and put a stop to a private prosecution?
Funny you should ask. The supreme court is being asked exactly the same thing on Thursday.What’s the case?
What’s it all about?
Dalvinder Singh Gujra alleged that in 2010 he was assaulted by Tamoor and Imran Mirza in front of two witnesses because he’d given evidence in civil proceedings against them. He also claimed to have been threatened and intimidated by Wajeed Mirza while driving in Southampton city centre. He started a private prosecution against them in September 2010.
Can’t see the problem.
Then the CPS took the case over and discontinued it.
That might cause a row.
Quite. In October 2010 the CPS reviewed the evidence and took the view there was no realistic prospect of convicting anyone because there was not enough evidence. In November, after notifying Gujra’s solicitors, the CPS took over and discontinued the proceedings. Gujra applied for judicial review of the CPS decision and is appealing against an order made in the Queen’s Bench Divisional Court in March 2011.
What is the supreme court being asked to do?
People have the right to bring private prosecutions under the Prosecution of Offences Act 1985, s 6(1). Lady Hale and Lords Neuberger, Mance, Kerr and Wilson will look at whether the current CPS policy on taking these proceedings in order to discontinue them is lawful and whether the decision taken in Gujra’s case was rational.
The CPS policy introduced in 2009 allows the CPS to take over and put a stop to cases where it considers there is insufficient evidence to produce a conviction. In an earlier case involving a private prosecution against two retired police officers, in connection with the Hillsborough disaster, Lord Laws said that it would not be right for the director of public prosecutions to apply the “reasonable prospect of conviction” test when making the decision. “The consequence would be that the DPP [director of public prosecutions] would stop a private prosecution merely on the ground that the case is not one which he would himself proceed with,” he said. “The very premise of s 6(1) must be that some cases will go to trial which the DPP himself chooses not to prosecute.”
Why is this case so important?
We can’t and shouldn’t have to rely on prosecuting authorities always doing the right thing. While the attorney general has long held power to end proceedings by entering a nolle prosequi and the DPP, Keir Starmer, can take control of a private prosecution under a 1908 statute and under the 1985 Act, the entitlement of ordinary members of the public to bring private criminal proceedings is intended as a safety net against failures, refusals and wrongdoing on the part of those whose job it is to bring public prosecutions.
Quite topical isn’t it?
Yes, in the ongoing extradition case featuring Abu Hamza and four others suspected of terrorism, Phillippa Kaufmann QC has questioned the refusal of the DPP to consent to a private prosecution of Babar Ahmad
Any notable private prosecutions?
Stephen Lawrence’s family instigated a private prosecution against men accused of murdering him in 1994. The case collapsed after the identification evidence of a key witness was ruled inadmissible, but after the abolition, in 2005, of the double jeopardy principle, which prevented suspects being tried twice for the same crime, a successful prosecution was brought by the CPS, which included new evidence. In January this year Gary Dobson, 36, and David Norris, 35, were found guilty of murder.