The constraints on judicial review of decisions to prosecute: Director of Public Prosecutions v Durham (Trinidad and Tobago) [2024] UKPC 21

While it is possible to successfully challenge on review a prosecutorial decision to bring or continue with criminal proceedings, it is only in highly unusual circumstances that such a review will be successful. Indeed, the very bringing of review proceedings may be an abuse of process, because the proper course is to avoid interference in criminal proceedings by civil review where a remedy could be available in the course of the criminal proceedings.

The constraints on review of criminal prosecutorial decisions are set out in Director of Public Prosecutions v Durham (Trinidad and Tobago) [2024] UKPC  21 at [51]-[60]. The law is largely common law, drawn from diverse jurisdictions. There has been some hesitancy in Australia in accepting that decisions to prosecute are amenable to judicial review, although in Likiardopoulos v The Queen [2012] HCA 37 (noted here on 15 September 2012) French CJ did not exclude the possibility.

An application for a stay of criminal proceedings as a means of preventing a prosecution from continuing is usually more appropriate than an application for civil review, although it is often said that a stay is only granted as a remedy of last resort. The same is said for civil review (Durham at [53]).

The circumstances in which a stay would be appropriate are diverse but two categories are established (Durham at [84]). The second category, where continuation of the criminal proceedings would offend the court’s sense of justice and propriety, is illustrated - to introduce a New Zealand example - where a defendant had pleaded guilty but his co-defendants had maintained pleas of not guilty and had had their proceedings stayed; it was appropriate to stay the defendant’s proceedings too in order to avoid an appearance of unfairness: Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705, and similarly, Stephens v R [2017] NZHC 2341. In those cases the stays were a proper means of preventing the prosecutions from continuing (and in any event the Crown, no doubt sharing the court’s sense of fairness, had not opposed the stays being ordered).

The Board summarises the considerations relevant to stays in Durham at [84], referring to and following Warren v Attorney General of the Bailiwick of Jersey (Court of Appeal of Jersey) [2011] UKPC 10 (noted here on 31 March 2011).

A prosecutorial decision not to prosecute may be subject to civil review: Osborne v Worksafe New Zealand [2017] NZSC 175.

See also, Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKSC 1, noted here on 27 January 2024.

Identifying questions of law: R v Hodgson, 2024 SCC 25

Distinguishing questions of law from questions of fact is not always easy. The distinction can be important, as where a right of appeal is limited to appeal on a question of law only.

Where a person has been acquitted of an offence, the prosecutor will usually only have a right of appeal on a question of law. [1]

The Supreme Court of Canada has addressed the meaning of “question of law” in R v Hodgson, 2024 SCC 25 at [32]-[36]. If a question does not depend on contested facts, it will generally be a question of law (for example, statutory interpretation, the scope of a right, or the definition of the elements of an offence [33]). Sometimes, the way a trial judge has assessed the evidence can give rise to a question of law, for example if a finding of fact was not supported by evidence, if the legal consequence of a finding of fact was in error, if the evidence was assessed on the basis of a wrong legal principle, or if the judge failed to assess all the evidence in relation to the ultimate issue of guilt or innocence [35].

Other questions of law are whether a fact is relevant, whether probative value excedes prejudicial effect, and more generally, whether evidence is admissible and whether a judicial discretion has been exercised in accordance with principle. [2]

In Hodgson the Court added that acquittals are not overturned lightly, and that the prosecutor must convince the appeal court “to a reasonable degree of certainty” that the verdict of acquittal would not necessarily have been the same had the error not occurred, and that the burden in this respect is very heavy. [36] [3]

The Supreme Court in Hodgson emphasised the need for the court below to be clear on what question of law it was deciding in the appeal [37], [39]-[40]. For example, where an appeal court overturns an acquittal because it concludes that a trial judge erred in assessing the evidence based on a wrong legal principle, “it should explain which principle is at issue, which of its components or aspects is at the root of the error, and how the trial judge’s reasons demonstrate an erroneous understanding or misapprehension of that component or aspect.” [43].

Other aspects of this appeal concerned the mens rea for murder, and the mental elements of self-defence. The trial judge had not erred in law in these respects, so the appeal was allowed and the acquittal restored.

Rowe J concurred, and added that it would be an error of law for the judge’s reasoning to incorporate a “myth” (for example - although “myths” is an open category - by making use of one of the twin myths that have been identified in sexual assault cases [4]).

___________________________________

[1] See, for example, s 296 of the Criminal Procedure Act 2011 [NZ], s 676(1)(a) of the Criminal Code of Canada.

[2] Illustrative cases include R v Gwaze [2010] NZSC 52 at [49]-[53] (noted here on 18 May 2010), DPP v Ziegler [2021] UKSC 23 at [54], R v JMH, 2011 SCC 45 (noted here on 27 October 2011).

[3] See also the footnote to my note on McElrath v Georgia, 22 February 2024.

[4] See my discussion of R v Kruk here on 9 March 2024.