The High Court gave judgment last month in R (Waxman) v CPS  EWHC 133 (Admin). This was one of those cases that seems to have slipped under the mainstream criminal lawyers radar… not on crimeline or bailii, so it may as well not exist!
At college, Ms Waxman met Mr Fogel who developed an unhealthy interest in her. He was first prosecuted and sentenced for harassment in December 2005. A restraining order duly followed with not only the expected conditions of non contact, but also from ‘retrieving or storing any information in any media or form whatsoever’ about Ms Waxman. He was also ordered to pay her compensation of £3,500. Mr Fogel reacted by issuing a civil claim for return of the money which was struck out (and was noted as being a clear abuse of process). There were breaches and prison sentences and we move on to 2010 when Mr Fogel issued a fresh set of civil proceedings requesting :
(1) Shutting down a Facebook website created by [Ms Waxman] and its associated social network site which contains details of a hate campaign [against Mr Fogel]
(2) To prevent any further attempts by [Ms Waxman], either directly of indirectly, to get [Mr Fogel] sectioned under the Mental Health Act
This was struck out for being the abuse of process that it clearly was. A Civil Restraint Order was made. However, the CPS prosecuted Mr Fogel for breach of the Restraining Order by issuing the proceedings.
It ended up at the Crown Court on a two count indictment alleging two breaches : (1) a communication (service of the civil proceedings) and (2) retrieving information on Ms Waxman (collating material for the civil claim).
The issue was raised at the PCMH as to whether that would be a breach of Mr Fogel’s Art 6 rights. Counsel was instructed to advise on this and concluded that it would be (there was a further issue as to whether Mr Fogal could be prosecuted for storing material relating to himself). As a result, no evidence was offered. This was the decision that Ms Waxman JR’ed.
The High Court was clear that Art 6 (or the common law for that matter) did not provide an absolute right to start court proceedings and that, given the civil proceedings were clearly vexatious, he could not rely on the ECHR and the CPS decision was “wrong … and that it’s decision not to proceed with [the prosecution] was based on an incorrect understanding of the law and of the restraining order” (para 20).
As a result, they granted a declaration to that effect. Further, as the state (through the CPS) had failed in it’s obligations to protect Ms Waxman’s private and family life and hence her Art 8 rights, she was awarded £3,500 in damages.
Firstly, was this is a matter relating to trial on indictment, and therefore not susceptible to Judicial Review (see Archbold 7-10 to 7-13)? This doesn’t seem to have been argued by the CPS. On the one hand, it’s not an interlocutory matter and the usual reasons for ousting the jurisdiction of the High Court don’t apply. However, it does appear to be covered by the legislation. Either way, it does seem like it was something that perhaps should have been considered, even if the JR should have been allowed to continue.
Apart from that, personally, I feel slightly uncomfortable with the court’s reasoning. One can only feel sympathy for the claimant, and the proposed legal application by Mr Fogal was clearly an abuse of process. However, I would imagine that when the Restraining Order was made, no-one gave any consideration to the question of whether this would apply to a proposed court action.
Access to the court is a fundamental right (without it, any other rights are worthless). Clearly, there are limits. But the remedy may lie with, as was done here, a Civil Restraint Order (which can have a penal notice attached) or an explicit variation of the Restraining Order. Certainly, it does not seem to me that the indictment was so clearly obvious a true bill that the CPS should be liable for dropping it. Had I been defending, I would certainly have raised the question of whether the prosecution breached Mr Fogel’s Art 6 rights and I never, obviously, raise arguments that aren’t meritorious (whether the Court gets the law right in my cases is another matter!)
What here was the reason given by the High Court for upholding the claim? The error of law was clear, but what was the legal test applied in analysing the CPS decision? Possibly not Wednesbury, but is it the Daly test of proportionality? There’s nothing to suggest that there is anything other than a straight question of law, so no review as such was needed. Again however, it is not necessarily obvious that the CPS should not have any margin of appreciation in assessing the validity of a legal argument.
This case does raise policy issues that haven’t been addressed explicitly (perhaps because they cannot ‘override’ the ECHR). Historically, the CPS (and police) have always enjoyed immunity from suit. No duty of care is generally owed to complainants or witnesses (MV v MPC  EWCA Civ 1361) or by the CPS to a defendant (Elguzoli-Daf v MPC  EWCA Civ 4). The advantage of a claim under the Human Rights Act however is that the difficulties relating to succeeding in a claim of negligence can be obviated.
This is not quite the first time that the issue has arisen. The High Court gave judgment in B v DPP  EWHC 106 (Admin) in January 2009. Here, a Crown Court case was dropped on the advice of counsel due to concerns over the complainant’s mental health and his ability to be a credible witness. The court concluded that this was in breach of the Prosecutor’s Code of Conduct and that there had been a breach of the complainant’s Art 3 rights in light of the offensive way that the case had been handled by the CPS and awarded compensation. A separate claim under s49A Disability Discrimination Act was held to add nothing to the general principles of public law.
“Hard cases make bad law” it is often said. This was a ‘good’ case, and it may make for some potentially very interesting law. The Court’s analysis of the Art 8 position of Ms Waxman is clearly correct, but what are the possible implications here? There is nothing in the judgment about the policy implications of the judgment, and, more interestingly, where it could take us.
… on Prosecutors
Many self-employed barristers who prosecute for the CPS (and whilst the list is open to solicitor-advocates, there are not that many, but the same would apply to them) are often heard complaining about the complete lack of autonomy that they have. It does seem strange that the CPS trust a barrister to run a trial, but not make decisions on pleas ancillary to it.
However, does this change things? Will a barrister be as happy now to take responsibility for decisions if they know that they can get hit with a claim against them by a disgruntled complainant? On the other hand, will a CPS Reviewing Lawyer want to shift the decision making process off to counsel?
… on defendants
What about the situation where the CPS prosecutes something that is wrong in law? Can the acquitted defendant seek damages? Every defence lawyer will have been asked at some point after successfully representing a client whether they can sue the court/complainant/police for damages for the stress they’ve been through and the answer is, almost always, no. Trying to get a claim for malicious prosecution off the ground is well nigh impossible and the Courts have been clear that where such cases are alleged, they are scrutinised to ensure they are not allegations of negligence or incompetence, dressed up as one of malicious prosecution.
When does a mistake on what the law is by a prosecutor transfer to a breach of a defendant’s Art 8 (or potentially Art 5) rights? It’s clear that any prosecution will interfere with the right, what test will the court apply in assessing whether the breach is lawful? When will inaction, a failure to investigate a defence, or to properly review a case, give rise to an Art 8 claim?
Defence lawyers have tried to argue a breach of Art 6, particularly in relation to costs, but I am not aware of anyone who has tried to establish a breach of Art 8. It feels somehow ‘wrong’ that liability could attach, but following this case, it is hard to see what answer the CPS would have in a reversed situation.
… on the Court
The Court is, as the CPS is, a public authority and bound to respect an individual’s convention rights. In this case, had the CPS continued with the Prosecution, and the Court come to the same view as the CPS did (or the Court of Appeal on a Prosecutor’s appeal under s58 CJA), would they have been liable? In the High Court there would have been problems under the limitations contained in s9 Human Rights Act, but what would the ECHR have made of it?
… on the CPS
Say in this case the matter had gone to trial and the Prosecution had offered no evidence because, for example, they had not obtained a copy of the restraining order and the court refused an adjournment (this has happened)?
Given that the CPS will not be liable for negligence for their actions or inactions, on what basis would an argument that this breached the complainant’s Art 8 rights be refused?
On the one hand, the greater accountability of the CPS is to be welcomed. Further, the fact that decisions that are made by them could have costs implications in a way that they are not used to could lead them to think more carefully about decisions they make (particularly if these could be challenged by both complainants and defendants so an attitude of always prosecute to avoid a civil claim does not develop). Even the most strident critic of the CPS however may be concerned that this is potentially a very significant development in the law.
And if the rule becomes that the CPS are answerable in damages for mistakes they make, it could prove very costly indeed.
Whatever the exact limits, this has the potential to be a growth area and one to watch out for.