Introduction

The case of End Violence Against Women Coalition, R (On the Application Of) v. Director of Public Prosecutions ([2021] EWCA Civ 350) pertains to a judicial review application filed by a campaigning organization aimed at challenging the Director of Public Prosecutions’ (DPP) policies related to the prosecution of rape and serious sexual offences. The claimant raised concerns about a perceived shift in prosecutorial approach from a 'merits-based approach' (MBA) to a 'bookmaker’s approach', arguing that this change led to lower prosecution rates despite an increase in reported offences. The Court of Appeal ultimately dismissed the application, upholding the DPP’s policies and decision-making processes.

The primary parties involved are:

• Claimant: End Violence Against Women Coalition
• Defendant: Director of Public Prosecutions (DPP)

Key issues in this case revolve around the legality and rationality of the DPP’s changes to prosecutorial guidelines, specifically whether the shift from MBA to bookmaker’s approach was unlawful, irrational, or created a risk of systemic illegality.

Summary of the Judgment

The Court of Appeal reviewed the application for judicial review brought by the End Violence Against Women Coalition against the DPP’s decision to alter prosecutorial guidelines concerning rape and serious sexual offences. The claimant alleged that the DPP had unlawfully shifted from a merits-based approach to a bookmaker’s approach, leading to decreased prosecution rates and undermining justice for victims.

Upon thorough examination, the court found that:

• The DPP’s decision did not unlawfully change the substantive policies but rather clarified and reinforced the existing merit-based approach outlined in the Code for Crown Prosecutors.
• The changes aimed to eliminate confusion and ensure that prosecutors applied the full Code test objectively, without being influenced by prejudiced stereotypes or myths.
• The claimant failed to provide adequate evidence to substantiate claims of irrationality, unlawful policy changes, systemic illegality, or breaches of the Equality Act 2010 and the duty of transparency.

Consequently, the Court of Appeal dismissed the application, affirming the DPP’s adherence to lawful and rational prosecutorial guidelines.

Analysis

Precedents Cited

The judgment referenced several key cases that influenced the court’s decision:

• R (FB) v. DPP [2009] EWHC 106 (Admin); [2009] 1 WLR 2072: This case established the distinction between the merits-based approach and the bookmaker’s approach, emphasizing the necessity for prosecutors to assess whether a prosecution has a realistic prospect of conviction based on evidence rather than predictive assumptions about jury behavior.
• R v. Board of Visitors of Hull Prison ex p St. Germain (No. 2) [1979] 1 WLR 1401: Affirmed the principle that courts in judicial review proceedings should accept the public authority’s factual evidence unless there is clear evidence of error.
• R (Law Society) v. Lord Chancellor [2018] EWHC 2094 (Admin); [2019] 1 WLR 1649: Clarified the admissibility of expert evidence in judicial reviews, emphasizing that such evidence must be necessary to resolve the proceedings.
• Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223: Established the Wednesbury test for irrationality in administrative law, stating that a decision is irrational if it is so unreasonable that no reasonable authority would ever consider imposing it.
• CCSU v. Minister for the Civil Service [1985] AC 374: Reinforced the standards for irrationality, describing decisions that defy logic or accepted moral standards as irrational.

These precedents collectively reinforced the court’s approach to assessing the legality and rationality of the DPP's decisions, ensuring that policies are reviewed within established legal frameworks.

Legal Reasoning

The court's legal reasoning rested on several pillars:

• Consistency with the Code for Crown Prosecutors: The court found that the DPP’s changes did not alter the substantive test for prosecution but clarified its application, ensuring adherence to the full Code test.
• Authority and Expertise: Recognizing the DPP’s expertise and the detailed evidence provided, including data from the Inspectorate and internal reviews, the court deferred to the DPP’s judgment in addressing prosecutorial practices.
• Rational Decision-Making: The court determined that the DPP’s actions were rational responses to identified issues, such as declining conviction rates and potential misapplication of the Code test.
• No Evidence of Unlawfulness or Systemic Illegality: The claimant failed to demonstrate that the DPP’s decisions were unlawful, irrational, or created systemic risks, leading the court to uphold the DPP’s policies.
• Duty of Transparency and Equality: The court assessed the claimant’s arguments regarding breaches of the Equality Act 2010 and the duty of transparency but found no substantive evidence of such breaches.

By meticulously evaluating the evidence and applying the relevant legal standards, the court concluded that the DPP’s decisions were lawful, rational, and aligned with prosecutorial responsibilities.

Impact

The judgment has significant implications for future cases and the broader legal landscape:

• Reaffirmation of Prosecutorial Autonomy: The decision underscores the autonomy of the DPP and the Crown Prosecution Service (CPS) in setting and adjusting prosecutorial guidelines, provided they adhere to legal standards.
• Clarification of the Merits-Based Approach: By upholding the importance of the full Code test and clarifying the MBA’s role within it, the judgment provides clear guidance for prosecutors in assessing cases objectively.
• Precedent for Judicial Review Applications: The case sets a precedent on the threshold required for challenging prosecutorial policies, emphasizing the need for substantial evidence of unreasonableness or unlawfulness.
• Encouragement of Evidence-Based Policy Making: The dismissal of the claimant’s application highlights the importance of evidence-based decision-making within public authorities, reinforcing the need for robust data and expert analysis in policy adjustments.

Overall, the judgment strengthens the framework within which prosecutors operate, ensuring that policy changes are both lawful and rational, thereby maintaining public confidence in the criminal justice system.

Complex Concepts Simplified

Merits-Based Approach (MBA)

The Merits-Based Approach is a prosecutorial principle ensuring that decisions to prosecute are based solely on the evidence's quality and the likelihood of securing a conviction. Unlike a predictive approach that might rely on assumptions about jury behavior, the MBA requires prosecutors to objectively assess whether the evidence meets the necessary standards for prosecution.

Bookmaker’s Approach

The Bookmaker’s Approach refers to a method where prosecutors predict the likelihood of a conviction based on historical jury behavior and other experiential factors. This approach can inadvertently incorporate societal biases or stereotypes, potentially leading to unjust prosecutorial decisions.

Full Code Test

The Full Code Test is a two-part assessment used by prosecutors to determine whether to charge an individual with an offence. The first part evaluates the evidential strength (i.e., whether there is sufficient evidence to provide a realistic prospect of conviction), while the second considers the public interest in prosecuting the offence.

Judicial Review

Judicial Review is a legal process where courts assess the legality of decisions or actions taken by public authorities. It ensures that such bodies act within their legal powers and adhere to principles of fairness and reasonableness.

Section 149 of the Equality Act 2010

Section 149 requires public authorities to have due regard to the need to eliminate discrimination, harassment, victimization, and other prohibited conduct when exercising their functions. It mandates that these considerations are integrated into decision-making processes to promote equality and fairness.

Conclusion

The Court of Appeal’s judgment in End Violence Against Women Coalition v Director of Public Prosecutions serves as a pivotal affirmation of the Crown Prosecution Service’s adherence to lawful and rational prosecutorial guidelines. By dismissing the claimant’s application for judicial review, the court reinforced the importance of maintaining a merit-based approach grounded in objective evidence assessment, free from societal biases or predictive stereotypes.

This decision not only upholds the integrity and autonomy of prosecutorial bodies but also sets a clear benchmark for future challenges to public authority policies. It underscores the necessity for evidence-based policy changes and the high threshold required to contest such changes in courts. Additionally, the judgment clarifies the application of the Equality Act within prosecutorial functions, ensuring that equality considerations are effectively integrated without imposing undue burdens or altering substantive legal standards.

Ultimately, the judgment reinforces public confidence in the criminal justice system by ensuring that prosecutorial decisions remain fair, consistent, and legally sound, thereby advancing justice for victims of sexual violence while safeguarding the rights of defendants.