‘The right legal analysis but the wrong result’

Raj Chada concludes: ‘The prosecutor considered “interests of justice” in the light of five factors that she considered in turn. In a narrow legalistic view, the Supreme Court has adopted the better reasoning.

‘The tragedy, though, is that I still think the prosecutor’s decision not to refer was wrong. The Stewarts lied on oath in their evidence. While she says this may not have been determinative about the trial, that seems a difficult call to make. It surely does fundamentally damage the public’s confidence in the justice system that a referral was not made, and it seems to me that insufficient weight was given to that factor.

‘I think the Supreme Court had the right legal analysis but ended up with the wrong result.’

‘A foolish error’

David Corker, partner at Corker Binning, says: ‘The NI prosecutor made a foolish error which he/she is unlikely to repeat. Their error was to have the Stewarts sentenced prior to them testifying as Crown witnesses. The prosecutor should instead have sought, after them pleading guilty, a deferral of their sentencing hearing until after they had testified. A sentencing hearing then would have enabled the sentencing judge to have decided upon their performance or compliance with their obligations. Thus the prosecutor would not have had to make this onerous and invidious decision. This also would have prevented the decision about the Stewarts’ sentence from being amenable to a judicial review.’

‘The buck will stop with a crown court judge’

He continues: ‘The policy of the courts recently is to be hostile to any invitation to assess the quality of CPS/prosecutorial decision-making—whether this be a CPS decision to prosecute or not, and now a decision not to refer back a sentence. The high threshold of Wednesbury unreasonableness (Wednesbury Corporation and Others v Ministry of Housing and Local Government (No 2) [1965] 3 All ER 571) is being rigorously applied. This judgment continues this policy of making a prosecutorial decision which calls for an exercise of judgment in a complex case almost unappealable.
‘Putting these factors together, in future prosecutors will be more unlikely to make these decisions, while the appellate courts would like them to. The buck will therefore stop with a crown court judge.’

‘Unrestricted discretion of the prosecutor’ confirmed

Paul Keleher QC, of 25 Bedford Row, says the context of the case is important to understanding the judgment and the potential practical effects: ‘The Divisional Court took the view that given the “change in circumstances”, the prosecutor should have referred the cases, relying heavily upon the use of that phrase in R v P & Blackburn [2007] EWCA Crim 2290, [2007] All ER (D) 325 (Oct).
‘The Supreme Court disagreed and said that a change in circumstances was much too narrow a test and that a consideration of the interests of justice, as required by SOCPA 2005, s 74(3), involves an open-ended deliberation, and there was no warrant for implying a fetter on the exercise of the unrestricted discretion for which the statute clearly provides.

‘This case therefore emphasises the unrestricted discretion of the prosecutor in deciding whether or not to refer a case. There are unlikely to be many cases where an applicant seeks to overturn a decision not to refer a case. It is more likely that defendants would wish to prevent a referral. Given that it is difficult to see how a referral would be made unless there has been some “change in circumstances”, the confirmation by the Supreme Court that the prosecutor has in those circumstances an unfettered discretion whether to do so will provide no ammunition for anyone seeking to avoid a referral.’

Please see Part One here.

This article was originally posted here.