King's / Queen's Bench Division of the High Court

[2025] EWHC 2684 (KB)

Fecha: 17-Oct-2025

Objective analysis

Objective analysis

721.

The objective analysis falls to be determined in the light of the knowledge of the prosecutor at the time that the decision to prosecute was made, and not in the light of subsequent information, facts or circumstances.

In Rudall v (1) CPS (2) Chief Constable of South Wales [2018] EWHC 3287 (QB) at [80], Lambert J rejected the proposition that the test to be applied to the examination of whether there was reasonable and probable cause to prosecute was synonymous with the evidential part of the test in the Code for Crown Prosecutors for determining whether a charge should be preferred (i.e. whether there was a realistic prospect of conviction). The Court held that the latter imposes a different and higher threshold involving an analysis of not just the admissibility of the evidence, but the importance of the evidence, whether the evidence is reliable and credible and the impact of any defence or other information put forward by the suspect. By contrast, determining whether there was reasonable and probable cause to prosecute concerns the question of whether there was prima facie admissible evidence in respect of each element of the offence, setting aside evidence which is plainly inadmissible. In Herniman v Smith [1938] AC 305, Lord Atkin said at p.319:

“It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution.”

722.

However a prosecution may be unreasonable, not on the ground that the prosecutor had no substantial information before him pointing to the guilt of the Claimant, but because he was also aware of countervailing evidence which afforded a good answer to the charge. Although the prosecutor is not bound to assume that a theory put forward by the defence is sound, in certain cases “on the explanation given...the reasonable and probable cause cease[s].”

723.

Whilst neglect to make reasonable use of the sources of information available before instituting proceedings may be evidence of want of reasonable and probable cause and also of malice as Jay J stated in Hughes-v-HMRC [2024] 1765:

“The authorities which I have cited demonstrate that the CPS’s failure to undertake a line of inquiry which might just have been relevant to the Claimant’s defence does not negative the existence of reasonable and probable cause.”

724.

If it is established that there is relevant material that was not placed before the prosecutor the Court will assess what difference it would have made to the charging decision. In Alford v Chief Constable of Cambridgeshire Police [2009] EWCA Civ 100 the Court of Appeal agreed with the first instance judge’s view that a report, which clearly should have been placed before the CPS and the prosecutor, would have weakened the strength of the evidence but the

“advice and the decision would probably have been the same.”