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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Redston, R (On the Application Of) v Director of Public Prosecutions  EWHC 2962 (Admin) (05 November 2020)
Cite as:  EWHC 2962 (Admin)
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT (ADMINISTRATIVE COURT)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE PICKEN
| R (on the application of) MARTIN REDSTON
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
Duncan Atkinson QC and Tom Williams (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 3 November 2020
Crown Copyright ©
Lady Justice Carr DBE :
Facts in summary
"Durham Constabulary does not consider that by locating himself at his father's premises, Mr Cummings committed an offence contrary to Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. (We are concerned here with breaches of the Regulations, not the general Government guidance to 'stay at home'.)
On 12 April 2020, Mr Cummings drove approximately 26 miles from his father's property to Barnard Castle with his wife and son. He stated on 25 May 2020 that the purpose of this drive was to test his resilience to drive to London the following day, including whether his eyesight was sufficiently recovered, his period of self-isolation having ended.
Durham Constabulary have examined the circumstances surrounding the journey to Barnard Castle (including ANPR, witness evidence and a review of Mr Cummings' press conference on 25 May 2020) and have concluded that there might have been a minor breach of the Regulations that would have warranted police intervention. Durham Constabulary view this as minor because there was no apparent breach of social distancing."
"We, along with leading and junior counsel, are instructed by Mr Martin Redston. As a resident of London Mr Redston has been subject to the restrictions imposed in order to do reduce the risk of the spread of the pandemic caused by the virus commonly referred to as 'Covid-19'.
We write in relation to the actions of Dominic Cummings, the chief adviser to the Prime Minister Boris Johnson. We are aware that, during the lockdown which was imposed on 23rd March by the Prime Minister, Dominic Cummings left London on 27th March and travelled approximately 260 miles north to Durham in a car together with his wife and child. His wife was infected by coronavirus at the time. At the relevant time the law required all persons to remain at home save for prescribed purposes a healthy person might need to leave or in case of an actual emergency. The journey would take 5 hours or so, not allowing the breaks and stops on the way.
In the home, under strict guidance in the interests of public health, the person would self-isolate and seek to distance themselves as an infected person from the members of the same household. The other members of the household were not to leave the house for 14 days, so as to prevent spread of the infection to others in the community."
"We are concerned that no action has been taken in relation to the actions of this public figure. Due consideration or investigation of these issues is clearly in the public interest. Whilst we acknowledge that there is no obligation on a private prosecutor to notify the CPS, the DPP or any other state agency, that a private prosecution is contemplated or due to commence we are writing as a matter of courtesy to provide you with the opportunity to respond to this matter to notify us as to whether you are considering this matter, or intend to do so, or are pursuing a prosecution in this regard.
We would wish to highlight to you the potential that the absence of a thorough police investigation or state inquiry risks (a) the loss of additional evidence that might be gathered by prompt investigation (for example the CCTV, ANPR, or debit or credit card records to indicate the events and timings of the journey to Durham); and (b) a very serious loss of public confidence in the due process of the rule of law and confidence in the accountability of government officers and employees, directly harmful to the needs of public compliance with the rules and guidance in relation to the measures to combat a serious public health threat to life and of serious harm and injury."
"We are unclear as to nature this response and are writing to you again in order to seek clarification thereof. Our letter sought a substantive response by 9 June as you will appreciate, and this is an acknowledgement only, received this afternoon.
Consequently we would be grateful for your urgent responses to the following question by 12 noon Tuesday, 9 June 2020.
Please confirm if there is presently an open and active consideration of the actions of Mr Cummings during the lockdown period to which we have referred in our letter dated 3 June 2020? i.e. is a decision, concerning those specific events, still to be reached in relation to the question of prosecution for breach of Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350? If the answer is yes, please indicate when this consideration commenced, and by when you are expecting to reach a decision. We would ask for an explanation as to why no decision has been reached to-date."
"Having received no response to our letters by close of today, 9 June 2020, we are writing to provide you with notice, in accordance with the Pre-Action Protocol for Judicial Review, of our intention to commence judicial review proceeding should this matter not be capable of being resolved satisfactorily."
"We look forward to your response by 6 PM on Thursday, 11 June 2020. We reserve the right to issue proceedings thereafter without recourse to you."
"Response to Pre-action Protocol Letter".
"I should make it abundantly clear that it is not the function of the CPS, as set out in the Prosecution of Offences Act 1985, to investigate allegations of crime. It has no and never has had any powers to carry out or direct police forces to carry out investigations. Investigations into alleged criminal conduct are a matter for the relevant police force.
The police have not referred this matter to the Crown Prosecution Service, therefore, we are not at present considering it.
Your [sic] also ask whether there is active consideration of the conduct of Mr Cummings. Whether there is an active police investigation into Mr Cummings' conduct is a matter you should address to the relevant police forces directly.
Any decision to take over or not take over a private prosecution will be done in accordance with the law. Our policy on private prosecutions can be found on our website …".
"We note that you have accordingly clarified that you are not considering any prosecution in this case.
You suggest that the matter is for the police and, it would appear from the terms of your letter that, a suggested lack of powers is relied upon. We would respectfully draw to your attention that it is the DPP's own published policy that the CPS may receive an allegation of an offence from a person other than the police and 'In such cases, you will need to decide whether the police should investigate the matter' and 'if you conclude that there should be further investigation, you should refer the matter to the police. If in doubt, it may be preferable to request an enquiry'.
We note that you have decided not to refer this matter to the police."
"Your letter seems to set that the CPS does in fact have the power to direct the police to conduct an investigation. I assume that the unnamed policy referred to, in support of this assertion, is in fact the 'Police and CPS Relations Guidance' ('the Guidance'), which can be found on our website …
The Guidance sets out the principles of a constructive working relationship between the police and CPS, summarised as responsibilities to inform, consult and advise. The Guidance stipulates that the functions of the CPS and the police are different and distinct. It makes clear that CPS must not assume the role of investigator or direct police operational procedures. This is consistent with the content of my letter yesterday. Nothing that appears elsewhere in the Guidance detracts from this.
Fundamentally, the ability of the CPS to refer an allegation to the police does not confer with it the power to direct the police to investigate. The quote you chose to select from the Guidance therefore lacks the context given by the document as whole.
The allegation against Mr Dominic Cummings has received significant media attention and we are aware from media reporting that it has already been considered by one police force, Durham Constabulary. It is not therefore necessary for the CPS to make the police aware of the allegation.
For the sake of clarity, please identify in any future correspondence the policy/guidance that you are referring to".
Grounds of challenge
i) Ground 1 alleges a failure to consider the exercise of the DPP's discretion to refer the matter to the police in order that, thereafter, the DPP may perform his function as an independent prosecutor to review the facts.
ii) Ground 2 alleges a failure to consider all relevant considerations, and/or material matters were not taken into account or properly taken into account, at all or lawfully and/or fundamental error of fact.
iii) Ground 3 alleges a failure to exercise the discretion to refer the matter to the police so that thereafter the DPP may perform his function as an independent prosecutor consistent with the Prosecution of Offences Act 1985.
iv) Ground 4 asserts that the absence of a referral is Wednesbury unreasonable or irrational.
v) Ground 5 avers that the non-referral is in breach of section 6 of the Human Rights Act 1998.
vi) Ground 6 alleges a lack of the appearance of independence in the decision-making of the DPP in this case arising from (a) the scheme of subordination to the Attorney-General, and/or perpetuated by (b) the failure to engage with the question over Mr Cummings' actions and stance taken and/or (c) the failure to reply to the written request for details of all contact with any Minister etc to be disclosed.
vii) Lastly, Ground 7 complains of a failure to meet the requirements of transparency and openness required of a public body.
Refusal by Swift J
" … it is not reasonably arguable that the power alleged (i.e. the power to refer these matters to the police for investigation) exists. In this regard, I accept the analysis of the provisions of the Prosecution of Offenders Act 1985 set out in the Defendant's summary grounds (see at § § 17-21). The Defendant's essential function is prosecutorial, not investigative. This state of affairs is not altered by anything in the Code for Crown Prosecutors, or the Guidance issued by the Defendant in December 2018 'Police and CPS Relations'. As to this latter document, I accept the submissions made by the Defendant at § § 32-34 of the Summary Grounds. In this case, the Durham Constabulary had already investigated the complaints made against Mr Cummings; the outcome of that investigation was summarised in a public statement made on 28 May 2020. In this context, it is not arguable that the power relied upon that by the Claimant, existed."
"In any event, even if existence of the power relied upon by the Claimant is assumed, the Claimant's case of illegality based on it, is not reasonably arguable given (a) the investigation that had already been undertaken by the Durham Constabulary; and (b) the outcome of that investigation, explained in the 28 May 2020 public statement. Given those conclusions it would not be reasonably arguable that any failure by the Defendant to require (effectively) re-investigation of the complaints against Mr Cummings was unlawful on any of the grounds now advanced by the Claimant. In particular, to the extent that any of the positive obligations under any of ECHR articles 2, 3 and/or 6 arose, those obligations had already been discharged in the course of the police investigation."
Grounds of renewal
Reasons for refusal
i) First, we asked at the hearing whether Mr Redston had raised any complaint with either the Durham Constabulary or the Metropolitan Police Service. We were told that Mr Redston had done so (following the refusal of permission on paper) but that nothing had come of this. It follows that referrals have in fact now been made to both potentially relevant police forces (albeit not by the DPP).
ii) Secondly, and whilst we do not refuse permission on this basis, it is at least questionable whether Mr Redston has a "sufficient interest in the matter to which the application [for judicial review] relates" as required by s. 32 of the Senior Courts Act 1981. The threshold for standing in judicial review has generally been set at a low level; however, when it comes to criminal cases there is no need for a third party to seek to intervene (see R v SSHD ex p Bulger  EWHC Admin 119 at  and ). Mr Mansfield QC for Mr Redston submits that it is not necessary that Mr Redston should have such a personal interest given that the Regulations apply to every single citizen. The matter is one of public interest with repercussions for public confidence. The fact remains that there is no suggestion that Mr Redston personally was put at risk by the actions of Mr Cummings, or any substantive indication as to why he has been put at risk through either any undermining of the rule of law or public health regulation as a consequence of any action (or inaction) by the DPP.
iii) Thirdly, the premise of the claim, namely that by his letter of 10 June 2020 the DPP took a decision not to refer Mr Cummings' conduct to the police (or that Mr Redston's solicitors' letter of 3 June 2020 was a complaint or request for decision) is not borne out by a fair and proper reading of the correspondence in question:
a) Mr Redston's solicitors' letter of 3 June 2020 was not a complaint or a request for a decision but, rather, a request for information allied with the giving of notice of possible private prosecution. Equally, Mr Redston's solicitors' letter dated 8 June 2020 asked for confirmation "if there is presently an open and active consideration of the actions of Mr Cummings". It was neither a complaint nor a request for a decision, albeit that the letter went on to ask "when you are expecting to reach a decision" assuming, that was, that the DPP was in the process of making a decision. The same reasoning applies to the 'letter before action' dated 9 June 2020;
b) Perhaps unsurprisingly in these circumstances, the DPP's letter of 10 June 2020 did not reflect or contain any decision by the DPP. Mr Gregory for the DPP was merely responding to Mr Redston's request for information, stating that (as a matter of fact) there had not been a referral to the police, and that the DPP did not have power to do so. He was not communicating any positive decision by the DPP not to refer the matter to the police.
"The Crown Prosecution Service, we should remind ourselves, has no and has never had any investigative powers. Its functions and its duties are set out in the Code for Crown Prosecutors issued by the Director of Public Prosecutions, a public declaration of the principles which drive decisions made by the Crown Prosecution Service and its officers. … The functions and the duties of Crown Prosecutors are set out in section 2, and section 3 offers guidance on their decisions to prosecute. It recites that the police and other investigators are responsible for conducting enquiries into an allegation of crime. Every case a prosecutor receives from the police or others is reviewed. Prosecutors must ensure that they have all the information needed before an informed decision about how best to deal with the case is made. This will often involve their providing guidance and advice to the police and others. However, prosecutors cannot direct the police or other investigators."
" … the role of the Crown Prosecutor is not that of an investigator nor can it ever be… Any guidance provided by a Crown Prosecutor is issued only to the police or other investigative agencies and is discretionary."
"…shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them -
(a) in determining, in any case -
(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or
(ii) what charges should be preferred;
"3.1 In more serious or complex cases, prosecutors decide whether a person should be charged with a criminal offence and, if so, what that offence should be. Prosecutors may also advise on or authorise out-of-court disposals as an alternative to prosecution. They make their decisions in accordance with this Code, the DPP's Guidance on Charging and any relevant legal guidance or policy. The police apply the same principles in deciding whether to start criminal proceedings against a person in those cases for which they are responsible.
3.2 The police and other investigators are responsible for conducting inquiries into any alleged crime and for deciding how to deploy their resources. This includes decisions to start or continue an investigation and on the scope of the investigation. Prosecutors should advise the police and other investigators about possible reasonable lines of inquiry, evidential requirements, pre-charge procedures, disclosure management and the overall investigation strategy. This can include decisions to refine or narrow the scope of the criminal conduct and the number of suspects under investigation. Such advice assists the police and other investigators to complete the investigation within a reasonable period of time and to build the most effective prosecution case.
3.3 Prosecutors cannot direct the police or other investigators. However, prosecutors must have regard to the impact of any failure to pursue an advised reasonable line of inquiry or to comply with a request for information, when deciding whether the application of the Full Code Test should be deferred or whether the test can be met at all."
"The relationship between the CPS and the police is an important one. The police have a key role in the prosecution process: they are responsible for the detection and investigation of criminal offences. …
In working closely with the police, it is important not to compromise the independence of the CPS. The functions of the CPS and the police are different and distinct. In giving advice to the police, the prosecutor must not assume the role of investigator or direct police operational procedures.
However, providing advice to the police in all matters relating to criminal offences is one of the core statutory functions of the CPS. Prosecutors should therefore be alert and open to all appropriate opportunities for giving such advice, where it may contribute to the effectiveness of an investigation and prosecution."
"The relationship between the CPS and the police carries with it responsibilities to:
consultation and the provision of information are two-way activities. At many stages in the prosecution process it is essential that both responsibilities are successfully performed: for example, at review, with proposals to discontinue and in the filling the prosecution's disclosure duties.
The duty to advise the police to rise from the provisions of section 3(2)e of the Prosecution of Offences Act 1985, from paragraph 2.2 of the Code for Crown Prosecutors and the Director's Guidance on Charging. It is a logical extension of the CPS function to conduct criminal proceedings commenced by the police. Timely advice from the CPS can ensure that, from the start, cases are properly brought. In large, serious and complex cases in particular, the proactive early involvement of the prosecutor can bring considerable benefits to both the police and the CPS in conducting an effective prosecution; refer to the Director's Guidance on Charging, elsewhere in this guidance.
Advice may be requested by the police, or it may be necessary to give advice without a specific request having been made (for example, where a change in the law may urgently affect the investigation of offences or the presentation of evidence).
General advice or explanations can be given to the police, provided that they are consistent with CPS national guidance.
On most occasions, the police will request advice on specific cases or areas of concern. Such
- Informal advice
- Early investigative advice
- Pre-Charge advice and Charge Decision."
"You may receive an allegation, from a person or body other than the police, that a criminal offence has been committed.
Examples might include:
- a complaint by a private individual
- a referral by a judge or magistrate regarding matters arising at court
- a complaint from a local authority
In such cases, you will need to decide whether the police should investigate the matter. Factors which may influence your evaluation may include:
- the source of the allegation
- whether any previous complaints have been made
- whether there has already been a police investigation
- the nature and seriousness of the offence
- the likely result if enquiries are made
If you conclude that there should be further investigation, you should refer the matter to the police. If in doubt, it may be preferable to request an enquiry."
"It is common ground in these proceedings that the Director is a public official appointed by the Crown but independent of it. He is entrusted by Parliament with discretionary powers to investigate suspected offences which reasonably appear to him to involve serious or complex fraud and to prosecute in such cases. These are powers given to him by Parliament as head of an independent, professional service who is subject only to the superintendence of the Attorney General. There is an obvious analogy with the position of the Director of Public Prosecutions. It is accepted that the decisions of the Director are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator: R v Director of Public Prosecutions, Ex p C  1 Cr App R 136, 141; R v Director of Public Prosecutions, Ex p Manning  QB 330, para 23; R (Bermingham and others) v Director of the Serious Fraud Office  EWHC 200 (Admin),  QB 727, paras 63-64; Mohit v Director of Public Prosecutions of Mauritius  UKPC 20,  1 WLR 3343, paras 17 and 21 citing and endorsing a passage in the judgment of the Supreme Court of Fiji in Matalulu v Director of Public Prosecutions  4 LRC 712, 735-736; Sharma v Brown-Antoine and others  UKPC 57,  1 WLR 780, para 14(1)-(6). The House was not referred to any case in which a challenge had been made to a decision not to prosecute or investigate on public interest grounds."
Section 3 of the Prosecution of Offences Act 1985 provides materially as follows (with emphasis added):
"(1) The Director shall discharge his functions under this or any other enactment under the superintendence of the Attorney General.
(2) It shall be the duty of the Director, subject to any provisions contained in the Criminal Justice Act 1987 —
(a) to take over the conduct of all criminal proceedings, other than specified proceedings, instituted on behalf of a police force (whether by a member of that force or by any other person);
(aa) to take over the conduct of any criminal proceedings instituted by an immigration officer (as defined for the purposes of the Immigration Act 1971) acting in his capacity as such an officer;
(ab) to take over the conduct of any criminal proceedings instituted in England and Wales by the Revenue and Customs;
(ac) to take over the conduct of any criminal proceedings instituted on behalf of the National Crime Agency;
(b) to institute and have the conduct of criminal proceedings in any case where it appears to him that—
(i) the importance or difficulty of the case makes it appropriate that proceedings should be instituted by him; or
(ii) it is otherwise appropriate for proceedings to be instituted by him; …
(ba) to institute and have the conduct of any criminal proceedings in any case where the proceedings relate to the subject-matter of a report a copy of which has been sent to him under paragraph 23 or 24 of Schedule 3 to the Police Reform Act 2002 (c. 30)(reports on investigations into conduct of persons serving with the police);
(bb) where it appears to him appropriate to do so, to institute and have the conduct of any criminal proceedings in England and Wales relating to a criminal investigation by the Revenue and Customs;
(bc) where it appears to him appropriate to do so, to institute and have the conduct of any criminal proceedings relating to a criminal investigation by the National Crime Agency;
(c) to take over the conduct of all binding over proceedings instituted on behalf of a police force (whether by a member of that force or by any other person);
(d) to take over the conduct of all proceedings begun by summons issued under section 3 of the Obscene Publications Act 1959 (forfeiture of obscene articles);
(e) to give, to such extent as he considers appropriate, advice to police forces on all matters relating to criminal offences;
(ea) to have the conduct of any extradition proceedings;
(eb) to give, to such extent as he considers appropriate, and to such persons as he considers appropriate, advice on any matters relating to extradition proceedings or proposed extradition proceedings;
(ec) to give, to such extent as he considers appropriate, advice to immigration officers on matters relating to criminal offences;
(ed) to give advice, to such extent as he considers appropriate and to such person as he considers appropriate, in relation to—
(i) criminal investigations by the National Crime Agency, or
(ii) criminal proceedings arising out of such investigations;
(ee) to give, to such extent as he considers appropriate, and to such persons as he considers appropriate, advice on matters relating to—
(i) a criminal investigation by the Revenue and Customs; or
(ii) criminal proceedings instituted in England and Wales relating to a criminal investigation by the Revenue and Customs;
(f) to appear for the prosecution, when directed by the court to do so, on any appeal under—
(i) section 1 of the Administration of Justice Act 1960 (appeal from the High Court in criminal cases);
(ii) Part I or Part II of the Criminal Appeal Act 1968 (appeals from the Crown Court to the criminal division of the Court of Appeal and thence to the Supreme Court); or
(iii) section 108 of the Magistrates' Courts Act 1980 (right of appeal to Crown Court) as it applies, by virtue of subsection (5) of section 12 of the Contempt of Court Act 1981, to orders made under section 12 (contempt of magistrates' courts); . . .
(fa) to have the conduct of applications for orders under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 (criminal behaviour orders made on conviction)] and section 14A of the Football Spectators Act 1989 (banning orders made on conviction of certain offences);
(faa) where it appears to him appropriate to do so, to have the conduct of applications made by him for orders under section 14B of the Football Spectators Act 1989 (banning orders made on complaint);
(fb) where it appears to him appropriate to do so, to have the conduct of applications under section 27 of the Anti-social Behaviour, Crime and Policing Act 2014 for the variation or discharge of orders made under section 22 of that Act;
(fc) where it appears to him appropriate to do so, to appear on any application under section 27 of that Act made by a person subject to an order under section 22 of that Act for the variation or discharge of the order;
(ff) to discharge such duties as are conferred on him by, or in relation to, Part 5 or 8 of the Proceeds of Crime Act 2002 (c. 29) (civil recovery of the proceeds etc. of unlawful conduct, civil recovery investigations and disclosure orders in relation to confiscation investigations);
(g) to discharge such other functions as may from time to time be assigned to him by the Attorney General in pursuance of this paragraph…
(3) In this section— …
"criminal investigation" means any process—
(i) for considering whether an offence has been committed;
(ii) for discovering by whom an offence has been committed; or
(iii) as a result of which an offence is alleged to have been committed;….
"police force" means any police force maintained by a local policing body. . . and any other body of constables for the time being specified by order made by the Secretary of State for the purposes of this section;…"