Challenges to decisions to prosecute and staying criminal proceedings

Only in exceptional cases should magistrates’ courts stay criminal proceedings to allow challenges to the decision to prosecute, the Divisional Court has ruled. David Lamming analyses the case.

In a significant judgment, the Divisional Court (Sir John Thomas P and Simon J) in R (Barons Pub Company Ltd) v Staines Magistrates' Court (DPP intervening) [2013] Crim LR 758-763; [2013] EWHC 898 (Admin) has emphasised that only in an exceptional case should a criminal court stay criminal proceedings on the basis of a challenge to the decision to prosecute.

The case concerned the prosecution of the claimant company by Runnymede Borough Council for eight alleged contraventions of the Food Hygiene (England) Regulations 2006 in respect of a pub operated by the company in Surrey.

Following the issue of the summons the company’s solicitors sought to persuade the council to drop the prosecution on the basis that prosecution was not in accordance with the council’s enforcement policy. The council declined to do so and the company applied to the court to stay the prosecution for abuse of process on the basis that the decision to prosecute was irrational, inconsistent with the council’s own published enforcement policy and not proportionate in all the circumstances.

The district judge found that it was more likely than not that the council’s officer had not considered the enforcement policy “as he was required to do under the legislation.” However, he held that he also had to consider whether bringing the prosecution was oppressive. Refusing a stay, he held that if the condition of the kitchen on the day of the inspection was “so lacking in cleanliness” as to infringe the regulations, a conviction could not regarded as oppressive unless a defence on the facts could be raised.

The company challenged this in judicial review proceedings, arguing that if, on a proper application of the policy the prosecution would not have been brought, it was oppressive without more for the prosecution to be allowed to continue. The DPP was given permission to intervene in order to be heard on the issue (raised by the council at the leave hearing) whether a magistrates’ court could review a prosecutorial decision as a “mini judicial review.”

The Divisional Court dismissed the JR application. They held (i) that a magistrates’ court has no power to review a prosecutorial decision other than through an abuse of process application; and (ii) on a review of all the evidence, including a letter written by the relevant officer to the company’s solicitors, the council had followed its own enforcement policy. In view of that second holding, the court did not need to consider the oppression issue. However, they did so, holding that an erroneous application of the enforcement policy would not suffice: only if the decision to prosecute had been “entirely arbitrary” might a court hold that it would be oppressive for the prosecution to continue.

David Lamming is a barrister at Cornerstone Barristers. He can be contacted on 020 7242 4986 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. David appeared for the claimant in this case.