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High Court identifies gap in the law when the Crown Prosecution Service offer no evidence

Published:

Re: R (Francis) v Director of Public Prosecutions [2024] EWHC 688 (Admin)

Last week Steyn J handed down judgment in R (Francis) v Director of Public Prosecutions [2024] EWHC 688 (Admin). Jesse Nicholls acted for the Claimant, Dean Francis.

Mr Francis suffered very serious, potentially fatal injuries when he was driven into by a serving police officer, DS Harding, in 2018. Following investigation by the IOPC, DS Harding was charged with criminal offences of inflicting GBH and causing serious injury by dangerous driving.

Last week the CPS informed Mr Francis that due to changes in the expert evidence, the CPS would be offering no evidence against DS Harding. The CPS gave Mr Francis almost no notice prior to the court hearing at which the case would be dropped.

Mr Francis successfully obtained an out of hours injunction to stop the CPS dropping the case. The matter was then considered fully by Steyn J. The CPS argued that in cases like this, the victim is able to seek a review of the decision under the Victims’ Right of Review (VRR) scheme, and then judicial review, but neither review would be capable of changing the decision to stop the prosecution. The CPS argued that that was lawful.

The Claimant argued that that approach was unlawful as it effectively conferred immunity on the CPS for such decisions.

Steyn J accepted the arguments made on Mr Francis’ behalf. She concluded that there was a real issue to be tried, namely that a claimant should be able to seek judicial review challenging a CPS decision to offer no evidence as unlawful, without recourse to the VRR, because the VRR did not provide an alternative remedy as it could not change the underlying decision.

On the facts, Steyn J concluded that the challenge to the CPS decision could not be pursued, as the change to the expert evidence meant it would not be overturned on judicial review. But the case identifies an important gap in this area of the law that has not been decided by the courts.

Jesse Nicholls was instructed by Michael Oswald of Bhatt Murphy.