SECTION 6 of the Prosecution of Offences Act 1985 (the “1985 Act”) allows a person who complains that she has been the victim of crime to instigate a private prosecution against the alleged perpetrator. The Director of Public Prosecutions (“DPP”) is, in certain cases, required to take over this prosecution. Where he is not so bound, the DPP (acting usually through a representative in the Crown Prosecution Service (“CPS”)) can do one of the following things: (i) allow the private prosecution to proceed unhindered; (ii) take over the private prosecution and continue it; or (iii) take over the private prosecution and discontinue it. The question of how the DPP decides between these options was at issue before the Supreme Court in R (on the application of Gujra) v CPS [2012] UKSC 52, [2012] 3 W.L.R. 1227.

Mr Gujra claimed he had, in two separate incidents, been assaulted and caused “intentional harassment, alarm or distress” (Public Order Act 1986, s. 4A). He instituted two private prosecutions against the alleged perpetrators, which the CPS took over and discontinued. This was done because it was thought there was no “realistic prospect” (i.e. a greater than 50 per cent. chance) of conviction in relation to either offence. This is the “evidential test” applied when deciding whether to institute a public prosecution. It is only following a policy document produced in 2009 that the DPP has required such a high standard of evidence in private prosecutions. Previously, he had indicated that it would be appropriate to take over and discontinue a private prosecution only where the evidence was such that there was “clearly no case to answer” and/or allowing the prosecution to proceed would be contrary to the public interest (R v DPP, ex p Duckenfield [2000] 1 W.L.R. 55, at 63 per Laws L.J.).

Mr Gujra argued that this change of approach made it so difficult to conduct a successful private prosecution that it had defeated the policy and object of the 1985 Act. As a result, the DPP's 2009 guidance was unlawful (see Padfield v Minister of Agriculture, Fisheries and Food [1968] A.C. 997). The Divisional Court rejected this argument ([2011] EWHC 472 (Admin), [2012] 1 W.L.R. 254), and Mr Gujra appealed to the Supreme Court.

The Justices split 3:2, with the majority deciding that the 2009 policy change was a lawful “adjustment” to, rather than an unlawful “emasculation” of, the right to institute a private prosecution. This is because, Lord Neuberger explained, private individuals are still free to institute prosecutions whenever they like, even if they might ultimately be taken over and discontinued (at [60]). The 2009 policy is thus lawful, and will be applied to all future private prosecutions that are brought to the DPP's attention.

This account will not persuade everyone. Although Lady Hale's view that the 2009 policy “effectively removed” the right to private prosecution (at [132]), or almost caused it to “vanish” (at [123]) is too strong, the scope of that right – which, for better or worse, Parliament saw fit to retain in the 1985 Act – is now reduced considerably. That might appear to some to be unlawful “emasculation”, as the decision in Gujra has rendered private prosecutions brought to the attention of the DPP unviable where he himself would not proceed, or is not happy to leave the business of prosecuting to others (e.g., the RSPCA). Despite this point, it is submitted that the decision is to be welcomed, as it opens the door to a more consistent and coherent system of criminal prosecution in England and Wales.

The majority concentrated on the need for such consistency in the instigation and continuation of criminal cases, noting a number of concerns that make it desirable to apply the “realistic prospect of conviction” test when considering the evidence against every accused person. It was worried that applying a lower evidential standard might be oppressive to the defendant, wasteful in terms of time and money, and would thereby undermine public confidence in the administration of criminal justice. To these concerns it might be added that the question whether a person faces a criminal trial ought not, in an ideal world, to depend on who the complainant is, or whether she has sufficient time and financial resources to embark on a private prosecution. This remains the case even if, as the minority argued, the complainant might be sure that the defendant is guilty. The core question that should be asked, when considering whether a criminal prosecution is worth instigating or continuing, is whether a judge or jury is likely to reach that same conclusion on the evidence, and whether the public should require the case to be heard. An experienced prosecutor is the most sensible candidate to answer these questions and establish whether the stress (to both complainant and defendant) and cost (in both time and money) involved in persevering with a prosecution are warranted.

Although Gujra means this position has been reached, the opinions nevertheless raise three points that require to be addressed. First, in her dissent, Lady Hale noted the importance of defending the interests of those who have not, historically, been listened to by the state's prosecutorial authorities (at [124]–[126], [130]). This is certainly an argument in favour of ensuring that the public prosecution service keeps its approach to certain kinds of cases under review. It is also a point in favour of strengthening judicial oversight of prosecutorial discretion – supervision that, although available in England and Wales, is difficult to exercise effectively. It is not, however, a strong argument for having a broad right of private prosecution (see, further, at [64] per Lord Neuberger; Jones v Whalley [2006] UKHL 41, [2007] 1 A.C. 63, at [9] per Lord Bingham).

Secondly, the decision in Gujra cannot alter the fact that some private prosecutions will never come to the attention of the DPP. This makes consistency in approach – important for the reasons indicated above – difficult to achieve. It is time to introduce the Law Commission's suggested requirement that the DPP be notified whenever a private prosecution is instigated (see Law Com. No. 255, 1998, paras 7.2–7.9).

Thirdly, of those cases that do come to the attention of the DPP, some will survive the 2009 policy's more strenuous “realistic prospect of conviction” test. If these private prosecutions are also in the public interest, they will be allowed to continue. In the absence of a particular need for CPS involvement, they will continue without the assistance of the state's prosecution service. But if both the evidential and public interest tests are satisfied, is the DPP not recognising, in essence, that the state ought to be prosecuting the defendant? If so, one might wonder why the pursuit of these cases should depend on the action of private prosecutors. The CPS has resources, experience and evidence-gathering powers that, at present, would probably be far beyond the means of a private prosecutor. Furthermore, the CPS's approach to cases is more likely to be consistent. Would it not therefore be preferable to make the CPS responsible for prosecuting cases where it presently “outsources” that task?

A system that relied, at least in the first instance, on public prosecution would make more sense than the post-Gujra mix of public and private prosecutions. Cost seems the real issue here, rather than “constitutional” rights. (It is worth pointing out that the present author is Scottish. The alleged “constitutional” importance of private prosecutions, emphasised by the dissentients, might exert a more powerful pull on English lawyers!)

If financial concerns were overcome, would there be any point in retaining the right to launch a private prosecution? In answering this question, it is worth looking to Scotland, where the Crown Office and Procurator Fiscal Service conducts virtually all criminal prosecutions, and yet the right to institute a private prosecution remains for indictable offences, but only with leave of the High Court of Justiciary (“HCJ”). There has been one such prosecution in the last century. In Sweeney v X 1982 J.C. 70, the complainer in a violent rape case had been so badly affected by the attack that the Crown feared a trial would result in, at best, her being unable to give evidence effectively and, at worst, a suicide attempt. Without the complainer's evidence, there was no case. Eventually, the multiple accused persons received written indications from the Crown that they would not be prosecuted. When the complainer had recovered sufficiently, she was told it would be oppressive for the Crown to recommence proceedings against the accused. But, the HCJ concluded, the Crown's assurances to the accused were no bar to the complainer prosecuting them. A private prosecution was launched, and resulted in the accused persons being convicted of, inter alia, rape. It is only in these limited circumstances – where there is sufficient evidence and a strong public interest in having a trial, but the state is barred (for a relatively innocuous reason) from proceeding – that the right to private prosecution should have practical effect.