Waxman, R (on the application of) v Crown Prosecution Service

Factual and Procedural Background

This is a claim for judicial review of the Crown Prosecution Service's ("CPS") decision not to prosecute the Defendant for harassment of the Plaintiff. The Plaintiff and Defendant first met at college, after which the Defendant developed an obsession and subjected the Plaintiff to serious and persistent harassment over eight years. The Defendant was convicted in 2005 of harassment and received a community order and a restraining order prohibiting harassment, contact, and retrieval or storage of information relating to the Plaintiff and her family. The Defendant breached the restraining order multiple times, resulting in suspended and actual imprisonment. The Defendant issued several civil claims against the Plaintiff, both struck out as without merit, leading to a civil restraint order preventing further claims without permission. The Defendant was charged with further breaches of the restraining order related to issuing proceedings and retrieving information. The CPS decided not to pursue prosecution, citing the Defendant's right of access to courts and possession of material for claim preparation. The Plaintiff challenged this decision by judicial review, arguing the CPS misunderstood the law and the restraining order’s scope and failed in its duty to protect her under Article 8 of the European Convention on Human Rights ("ECHR").

Legal Issues Presented

1. Whether the CPS was correct in deciding not to prosecute the Defendant for breaches of the restraining order related to issuing civil proceedings and retrieving information.
2. Whether the restraining order prohibited the Defendant from commencing and serving civil proceedings against the Plaintiff.
3. Whether the Defendant’s right of access to the courts under common law and Article 6 ECHR is absolute or can be restricted by a restraining order to prevent harassment.
4. Whether the CPS’s failure to prosecute constituted a breach of the state’s positive obligations under Article 8 ECHR to protect the Plaintiff’s physical and psychological integrity.
5. The appropriate relief and damages for the Plaintiff arising from the CPS’s decision.

Arguments of the Parties

Plaintiff's Arguments

• The CPS misunderstood the legal principles governing the right of access to courts, leading to an incorrect construction of the restraining order.
• The restraining order does not grant an absolute right to commence vexatious or abusive proceedings.
• The Defendant could have applied to vary the restraining order if reasonable grounds existed to bring proceedings.
• The state has a duty under Article 8 ECHR to protect the Plaintiff’s physical and moral integrity, which was breached by the CPS’s failure to prosecute.

Defendant's Arguments (CPS)

• Every citizen has the right to commence and pursue proceedings in civil courts, subject only to judicial control of abuse of process.
• The restraining order should not be construed as prohibiting the commencement of civil proceedings, as it makes no explicit reference to this.
• Restricting the Defendant’s retrieval of publicly available information about himself would unjustifiably infringe his rights under Articles 8 and 10 ECHR.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the scope of the restraining order, focusing on the terms "harassing" and "contacting directly or indirectly," which were broad enough to potentially include the commencement and service of civil proceedings. The court distinguished between bona fide claims, even if lacking merit, and wholly unmeritorious proceedings issued solely to cause harassment. It recognised the fundamental but not absolute right of access to courts, subject to judicial control of abuse of process via civil restraint orders or restraining orders under the Protection from Harassment Act.

The court rejected the CPS’s view that the prosecution was bound to fail, holding that the CPS misinterpreted the law and the order’s construction. It found that the Defendant’s issuance and service of proceedings could constitute harassment if done for an improper purpose. The court also considered the Defendant’s retrieval of information and held that the restraining order’s prohibition on retrieval and storage of information about the Plaintiff and her family was reasonable and did not disproportionately infringe the Defendant’s rights, even if it incidentally restricted retrieval of some information about the Defendant himself.

Regarding the state’s positive obligations under Article 8 ECHR, the court compared the facts with prior Strasbourg cases, concluding that although the Plaintiff was not subjected to physical violence, the cumulative psychological harm and the state’s failure to prosecute constituted a breach of the state’s duty to protect her integrity. The court accepted that the CPS’s decision not to prosecute was unlawful and caused alarm and distress to the Plaintiff.

Holding and Implications

The court allowed the claim for judicial review, declaring that the CPS’s decision not to prosecute the Defendant was based on an incorrect understanding of the law and the restraining order. The court awarded the Plaintiff damages of £3,500 for the unlawful failure to pursue prosecution, reflecting European Court of Human Rights awards in comparable cases.

The direct effect is that the CPS’s decision was quashed, affirming the state’s duty to protect victims of harassment under Article 8 ECHR. The ruling clarifies that restraining orders may validly restrict vexatious civil proceedings that constitute harassment and that the right of access to courts is not absolute when abused. No new precedent beyond the application of established principles was set.