Thompson v The Public Prosecution Service (No 2)

Factual and Procedural Background

This opinion arises from two inter-related appeals consolidated by the court due to their common parties, factual matrix, and evidential substratum. The Appellant challenges the Public Prosecution Service's (PPS) decision to defer any prosecutorial decision regarding the death of Kathleen Thompson until the completion of a police investigation and the undertaking of specified further investigative steps by the police under statutory powers. The appeals concern whether the PPS erred by not making a substantive decision on prosecution earlier, including whether it was required to consider inquest materials before deciding on prosecution or directing further police investigation. The first appeal focused on the PPS’s decision not to exercise certain powers under the Justice (NI) Act 2002, while the second appeal challenges the PPS’s approach to the consideration of inquest materials and timing of prosecutorial decisions. The High Court granted a declaratory remedy but declined other relief. The appeals challenge aspects of that judgment and the PPS’s conduct in the prosecution decision-making process.

Legal Issues Presented

1. Whether the PPS lawfully and rationally exercised its discretion by deferring prosecution decisions pending further police investigation and specified investigative steps.
2. Whether the PPS was obliged to consider the full inquest materials before making any prosecutorial decision or directing further investigation.
3. Whether the PPS unlawfully delegated its decision-making role to the coroner by relying on the coroner’s referral and materials.
4. Whether the PPS’s refusal to expedite the prosecutorial decision in light of the Legacy Act was lawful and reasonable.
5. Whether the High Court erred in its legal analysis and in granting only declaratory relief without quashing the PPS’s decision.

Arguments of the Parties

Appellant's Arguments

• The PPS erred in law by considering that it could not make a prosecutorial decision without receiving a further police investigation file.
• The PPS wrongly failed to obtain and consider the full inquest materials before deciding whether to prosecute or direct further police investigation.
• The PPS’s failure to consider the inquest materials amounted to irrationality, breach of duty of inquiry, and unlawful delegation of decision-making to the coroner.
• The PPS’s decision to defer prosecution was effectively a refusal to consider prosecution, which should be quashed or otherwise remedied.
• The PPS should have expedited the prosecutorial decision to avoid the impact of the Legacy Act on the timing and viability of prosecution.

Respondent's Arguments (Public Prosecution Service)

• The PPS decision to await a full police investigation file before making a prosecution decision is consistent with established practice and legal requirements.
• The PPS considered the coroner’s referral report and directed the police to undertake additional investigative steps; this does not amount to unlawful delegation.
• The PPS is not legally obliged to make prosecutorial decisions based solely on inquest findings, which are not substitutes for thorough criminal investigations.
• The PPS’s approach respects its prosecutorial discretion and the statutory scheme governing investigations and prosecutions.
• The High Court’s declaration regarding the PPS’s position on the necessity of a police file for prosecution decisions was appropriate and not undermined by prior communications.
• The PPS’s decision not to fast track prosecution in light of the Legacy Act was a lawful exercise of discretion considering available resources and the seriousness of the offence.

Interested Party (Ministry of Defence)

The opinion does not contain a detailed account of the interested party's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Monica) v DPP [2018] EWHC 8	Principle on prosecutorial discretion and judicial review of prosecutorial decisions.	Used to support the proposition that prosecutorial decisions are subject to reasonableness review and the court must respect prosecutorial discretion.
Re Duddy [2022] NIQB 23	Clarification of judicial review standards regarding prosecutorial decisions and timing of prosecution.	Applied to affirm that the PPS’s decision not to fast track prosecution was lawful and rational.
DB v Chief Constable [2017] UKSC 7	Principles governing public law judicial review, including the exercise of discretion and the standard of reasonableness.	Referenced to emphasize the importance of respecting prosecutorial discretion and the limits of judicial intervention.
Re Frane's Application [2024] NICA 20	Requirement for specificity and particularity in grounds of appeal and judicial review challenges.	Applied to assess the insufficiency of the appellant’s grounds of appeal for lacking necessary specificity.

Court's Reasoning and Analysis

The court undertook a detailed examination of the PPS’s conduct and the legal context surrounding prosecutorial decisions in this case. It recognized that the PPS made a single, indivisible decision to defer prosecutorial determination until the police completed a full investigation incorporating specified further investigative steps. The court rejected the appellant’s attempt to fragment this into multiple separate decisions, concluding that no distinct decision refusing to consider inquest materials existed; rather, the non-consideration of full inquest materials at the relevant time was part of the factual context for the deferment decision.

The court found the PPS’s approach consistent with established prosecutorial practice and statutory provisions, noting that prosecutorial decisions typically require a comprehensive police file and that inquest findings are not a substitute for thorough criminal investigations. The court also held that the PPS’s discretion to determine how and when to consider coroner’s materials is subject only to Wednesbury unreasonableness and that no such unreasonableness was demonstrated.

Regarding the timing issue raised by the Legacy Act, the court emphasized the necessity of respecting prosecutorial independence and discretion, declining to interfere with the PPS’s judgment not to expedite the case. The court also addressed the High Court’s declaratory relief, affirming that the PPS’s letter of 19 May 2023 disclosed an unsustainable fetter of discretion in the specific context of this case, warranting a declaration but no further relief, as any quashing order would have been futile given the PPS’s stance on investigation requirements.

Finally, the court criticized the appellant’s procedural approach in initiating separate judicial reviews for closely related matters, describing it as inappropriate and unnecessarily costly, and endorsed the consolidation of appeals for convenience and expedition.

Holding and Implications

The court DISMISSED the appeal and the respondent’s cross appeal, thereby affirming the High Court’s judgment in all respects. The declaratory relief granted by the High Court stands, confirming that the PPS’s position in the letter of 19 May 2023 constituted an unlawful fetter of discretion in the context of the case.

The direct effect is that the PPS’s decision to defer prosecution pending completion of the police investigation and further specified inquiries is lawful and rational, and no separate prosecutorial decision refusing to consider inquest materials exists. No quashing order or other substantive relief was granted, and no new precedent altering prosecutorial discretion or investigatory requirements was established.

The court emphasized the importance of procedural propriety by discouraging multiple overlapping judicial reviews and endorsing consolidation to save costs and time.