- Record of decisions reached
- The impact of the Human rights Act 1998
- Judicial review of the prosecution decision
Record of decisions reached
1. Approval Officers must ensure that there is a detailed record made at the time of the reasons for their decisions in relation to a proposed prosecution. It is not sufficient to just note that a decision has been made. Challenges to approval decisions will be difficult to defend if it is unclear from the Approval Officer’s note how a decision was reached in relation to a prosecution. Decisions should clearly record which factors have been taken into account and the weight applied to them in reaching the decision 1. This information should be held in the prosecution/investigation file.
The impact of the Human Rights Act 1998
2. Section 6 of the Human Rights Act 1998 (“HRA”) states that it will be unlawful for a public authority to act in a way which is incompatible with the European Convention on Human Rights. The Approval Officer must therefore consider the HRA in reaching a decision on approving a prosecution, in particular whether there are Convention rights that might be relevant to the approval of the case. For example, the Approval Officer should consider:
- whether the right against self-incrimination has been infringed;
- how the evidence was collected and obtained;
- whether the right to privacy was infringed through access to correspondence, medical information etc.
3. These are all subject to the test of proportionality. You should refer to the Operational Guidance for further details of the impact of the HRA in the context of HSE’s work.
Judicial review of the prosecution decision
4. A decision to prosecute cannot, in the absence of dishonesty or ‘mala fides’ or other exceptional circumstances, be judicially reviewed.2 However, an Approval Officer's decision not to prosecute may be the subject of judicial review, as can a decision on venue or the selection of charges.
5. The introduction of the HRA opens the possibility of a review of not only how the decision was reached but also the merits of the decision itself. Decisions made during the course of a prosecution can also be the subject of a judicial review, such as decisions not to disclose unused material, or decisions not to discontinue a prosecution.
6. If HSE can show that the approval process was undertaken properly and that the decision was not unreasonable or taken in bad faith, the Administrative Court is likely to uphold that decision 3. In this context, unreasonable means a decision which no other person acting properly would reach. Approval Officers must therefore ensure that there are detailed notes and explanations covering all aspects of their decisions. Further guidance may be found in the section on Abuse of Process.
- R (on the application of (1) E (2) S (3) R) v DIRECTOR OF PUBLIC PROSECUTIONS (2011) - The decision of a Crown prosecutor to prosecute had to be quashed where the decision-making process was flawed in that it was unclear whether the Crown prosecutor had properly taken into account the concern raised in a report by a multi-agency strategy group that prosecution was not in the best interests of any of the children. Back to reference of footnote 1
- R v DPP ex parte Kebilene and Others HL  3 WLR 972. Back to reference of footnote 2
- In R (on the application of Patricia Armani Da Silva) v Director of Public Prosecutions and the Independent Police Complaints Commission  EWHC 3204 (Admin), DC, the court held that the decision of the DPP as to whether or not to prosecute would be lawful if it was taken in accordance with the Code for Crown Prosecutors, which included both evidential and public interest considerations, and it was a decision reasonably open to the decision-maker on the material before him/her. Back to reference of footnote 3