The Campaign Against Anti-Semitism v DPP
The recent case of Campaign Against Anti-Semitism v DPP  EWHC 9 (Admin) provides a useful summary of when a private prosecution will be discontinued. It also serves as a reminder of the limited scenarios in which the High Court will allow a challenge to the DPP’s decision to discontinue.
In June 2017, four days after the Grenfell Tower fire, the annual Al Quds Day pro- Palestinian protest and parade took place in central London. The participants of the parade were led by a Mr Ali, who publicly addressed the rally at some length. Some of the address was captured on film, recording suggestions by Mr Ali that Israel was a terrorist state and that Zionist corporations were responsible for the murder of those who died in the Grenfell fire. He also accused Rabbis on the Board of Deputies of British Jews of agreeing to the killing of British soldiers and, finally, he referred to Zionists and Israelis as “terrorist”, “murders” and “baby killers”.
Following the parade, the Campaign Against Anti-Semitism [“the CAA”], a charitable organisation, wrote to the Metropolitan Police seeking the prosecution of Mr. Ali for these statements. When informed that the CPS considered there was insufficient evidence to offer a realistic prospect of success with a prosecution, the CAA brought a private prosecution. The CAA alleged that Mr Ali had committed an offence contrary to section 5(1) of the Public Order Act 1986 by using ‘threatening or abusive words or behaviour, or disorderly behaviour, within the hearing or sight of a person likely to be caused harassment, alarm or distress.’
Mr Ali’s solicitors invited the Director of Public Prosecutions to exercise her discretion to intervene pursuant to section 6(2) of the Prosecution of Offences Act 1985. On 28 June 2018, the CPS wrote to the CAA to inform it that the prosecution was being taken over by the DPP and discontinued under section 23(3) of the Act.
The only ground for the decision to discontinue was that the evidential stage of the Full Code test was not met (a conviction was not more likely than not), because Mr Ali’s statements were not “abusive”. In the light of that negative conclusion as to the evidential stage of the CPS Full Code Test, the public interest stage was not considered.
The CAA sought judicial review of the discontinuance decision on the public law ground of irrationality. On 9 January 2019 the High Court refused the application for judicial review.
The High Court Decision
The High Court found that the CPS decision to discontinue was not perverse, i.e. not one which no properly directed and informed CPS decision-maker could have made. The relevant CPS decision-maker had analysed each of the statements in context and had determined that, as distressing as they may have been, it was not more likely than not that magistrates would find these words abusive within the scope of section 5 of the 1986 Act and convict on that basis.
When will a private prosecution be discontinued?
The Court considered the circumstances when a private prosecution will be discontinued more widely. Lord Justice Hickinbottom made reference to the CPS Policy on Private Prosecutions, which provides that, “A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.”
Therefore, if the DPP does not consider it probable (i.e. more likely than not) that a jury or magistrate(s) will convict of the charge s/he is required to discontinue the prosecution. This requires an assessment of whether the evidence is sufficient to merit conviction.
However, even if the evidential test is satisfied, then the DPP must go on to consider whether a prosecution is in the public interest. If, having done so, the DPP makes a decision adverse to the private prosecutor, the next issue for resolution is what (if any) remedies does that prosecutor have?
Is Judicial Review a safeguard against discontinuance?
The decision in this case reiterates that a prosecutorial decision to discontinue is amenable to challenge by judicial review but only on conventional public law grounds. Such grounds include where the policy upon which the decision was based was unlawful or where the decision to discontinue is irrational, in the sense that, the decision maker incorrectly applied the law, his approach was wrong as a matter of law, or it was a decision not reasonably open to the decision maker on the available material.
However, as stated in L v DPP  EWHC 1752 (Admin), if the decision-maker asks the right questions and informs himself properly, challenges to prosecutorial decisions will succeed “only in exceptionally rare circumstances”.
Hickinbottom LJ stated that courts will be slow to hold a decision irrational where the issues involve disputed evidence of primary fact, “where the decision-maker’s experience and expertise in considering how evidence will be received at trial and predicting the verdict at trial will be a particularly powerful factor”. The court will also be slow to intervene where the decision involves an assessment of the public interest. However, the decision-maker’s experience and expertise are of less force where the question is one of law and as such the court may be more inclined to intervene in these circumstances.
It is apparent therefore that decisions to discontinue a private prosecution will only be susceptible to successful challenge in the rarest of cases. This is for the good constitutional reason that decisions to prosecute are entrusted to the prosecuting authorities. Those who find their private prosecutions discontinued should therefore take careful advice when considering whether or not to bring a judicial review.