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.
