Judicial reviews in private prosecutions

MP Boris Johnson has successfully had a private criminal prosecution against him thrown out of court, by submitting an application for a judicial review of the decision to issue him with a court summons. But what exactly are judicial reviews, and how are they used?

*This article was updated on 7/6/19 to reflect the outcome of the judicial review in question*

Scrabble tiles spelling out BOJO

The case of Boris Johnson

Mr Johnson was the subject of a private prosecution brought by a campaigner who crowdfunded £200,000 for the case, involving the criminal offence of misconduct in a public office.

Private criminal prosecutions have become increasingly common as cuts to the police and courts system have left many victims of crime without proper avenues to justice. They can be brought by anyone, however, in order to get the prosecution started it is necessary to first persuade a magistrate or District Judge to issue a summons.

To do this, the magistrate or District Judge must be satisfied that, among other things:

  • an offence in law has been committed;
  • there is sufficient evidence to proceed to trial or judgment;
  • the prosecution is brought within an appropriate time of the alleged offence;
  • the court has the necessary jurisdiction to proceed; and
  • the prosecution is not vexatious (i.e. brought solely to harass or subdue an adversary).

Given the significant public interest in the case of Boris Johnson, the District Judge held a hearing before deciding that a summons should be issued.

This is known as considering the summons ‘on notice’, and while it is rare in public prosecutions (i.e. those brought by the Crown Prosecution Service via the police, or by another prosecuting body such as HMRC or the Environment Agency), it is not unusual in private prosecutions.

Challenging a summons via a Judicial Review

Every decision made in the Magistrates’ Court can be challenged by Judicial Review in the High Court.

During a Judicial Review, judges at the High Court must decide whether the decision made by the magistrate/District Judge to issue the summons was so unreasonable or irrational that no reasonable person would have arrived at the same decision.

This is known as the ‘Wednesbury Test’, named after a famous historic case involving a town planning case in Wednesbury. Despite this being a high test to pass, it is not uncommon for those receiving a summons to make an application for a Judicial Review – indeed, this is exactly what Boris Johnson’s legal team did.

A solicitor who is experienced in private prosecutions will expect to deal with this type of application, and in the case of Boris Johnson, the prosecutors will have prepared for it long before the summons was issued. However, in this case, despite the arguments put forward by the prosecution, the High Court judges decided that the summons was not lawful, and overruled the District Judge’s decision to issue it.

Other ways to challenge a private prosecution

In cases where a defendant fails to have a prosecution dropped via a Judicial Review, there are a number of other ways in which the case can be challenged.

It is sometimes possible to persuade the CPS to take over the prosecution and discontinue it, for example:

  • if on review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met; or
  • if there are factors which would be damaging to the interests of justice if the prosecution was not discontinued, including where the prosecution would interfere with the investigation or prosecution of another offence; where the defendant has been promised immunity from prosecution; or where the defendant has already (and appropriately) been given a simple caution or a conditional caution for the offence.

Should a defendant fail in all of these challenges, it is still possible to launch an application to dismiss a private prosecution once the case reaches the Crown Court.

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IMAGE ATTRIBUTION: “Bo Jo (Boris Johnson) Scrabble” by jeffdjevdet is licensed under CC BY 2.0