British Courts Bow to the Executive by Michael Doherty


One of the foundation principles of the Rule of Law is the doctrine of separation of powers. In short that the tripartite system of Legislature, Executive and Courts should not interfere with the other respective arms of power and function. On the 10th of June 2014, the British High Court, in the form of Lord Justice Beatson and Mr Collins, decided to emasculate the British Criminal Justice system.

In effect their actions, proceeding the important Supreme Court case of R (Gujra) v CPS [2012] UKSC 52, the High Court stated that it would be a ‘highly unusual’ case whereby the High Court would grant Judicial Review scrutiny of a decision by the Crown Prosecution Service (CPS) to take over and stop a criminal prosecution.

Supervising the Criminal Courts

The case before the High Court related to the CPS’ decision to take over and bring to a halt my private criminal prosecution of Metropolitan Police officers, Detective Stephen MacDonald and Sergeant Gareth Blackburn. The court, at summons stage had issued the matter, pointedly stating that apart from the aggravated burglary charge, all charges were case to answer.

These were not minor matters and offences laid in the court were, Kidnap, False imprisonment, Assault actual bodily harm, Affray, Burglary and Misconduct in Public office. The case went before Southwark Crown Court and on the prosecution side was eventually being run by David Josse QC.

In November 2013 the CPS stated they would be taking over the case and applying the evidential sufficiency test and public interest test to the prosecution. This ‘test’ as one can imagine is a very arbitrary paperwork exercise, whereby a member of the CPS will sit down and claim they apply ‘procedure’ in reaching a conclusion. It is a process which like any arbitrary decision is widely open to abuse.

The CPS eventually, after many months, decided they were going to take over the case and close it. They had decided, despite the evidence and the standing ‘case to answer’ threshold being met in the courts, that the case didn’t meet their ‘code for prosecutors test‘ and as such could not proceed.

This decision was challenged by way of Judicial review, the case was refused permission to proceed due to the previous decision in the Supreme Court in Gjura. Effectively, the court was not looking at the evidence in the criminal case, but on the dry bones of law as to whether the CPS decision was in anyway challenge-able. The High Court said not, I submit completely against the constitutional doctrine of the Separation of Powers.

It is quite clear now that the British Courts have accepted the interference from the executive, in the form of the CPS to decide whether a case will proceed to trial. This despite there being well recognised practice and procedure within the Criminal Courts, to ensure non-meritorious cases do not go through to full trial, and in this instance a jury trial.

A concerning development

The constitutional right of any individual to have unrestricted access to the courts of criminal jurisdiction has been plainly usurped by this decision of the High Court. It is no question this has been a deliberate and orchestrated move by the executive to significantly degrade the effectiveness of this constitutional tool. Indeed Lord Diplock in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 stated that private prosecution was a;

“useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders”

In essence, the least likely to find themselves on the end of a criminal prosecution are those working in the criminal justice system, in particular the police. This new move of the Courts and the CPS will without question see the usual failure of accountability to prosecute police officers. Those who have a case to answer will not go before a jury and as usual escape justice and personal accountability for their actions. This is nothing new in the UK, with a notoriously failed system of investigating police, headed up by the complicit police watchdog, the IPCC.

Notable weak cases going to trial

Many of you will know of criminal cases that have gone to trial, where it is clear there was a deliberate failure to apply sound reasoning to prosecution decisions. Deliberate in that there was an ulterior motive for the prosecution, be that political or vengeful use of the criminal courts.

One such example being the farcical decision to prosecute me in what has become commonly known as ‘Stitch up in Stevenage’ and it’s ‘Sequel in St Albans’. Convicted twice on bogus allegations of ‘assault of a court security officer’ contrary to Sec.57 of the Courts Act 2003.

This case and it’s myriad of blatant abuses of the criminal process is now on appeal to the High Court and beyond if necessary. The case is full of witness collusion, proven lies and abuse of evidence such as the destruction of CCTV evidence and bogus unsubstantiated claims (a hallmark in many cases) the system was ‘broken’. Of course no records exist of a defect report nor a documented repair…..

This is the reality, the state wants to control the criminal justice system. It wants to choose who is prosecuted and it sure doesn’t want the people of this fine country turning the tables and prosecuting those in positions of trust and power who abuse that privilege.

This is the actions of a wannabe tyrant and the people of this country should resist this tampering with the constitutional protection of private criminal prosecution.

What next

The case which the CPS seek to bring to a halt can be found at the following link: Dailymail – fueled with the refusal to permit a full challenge to their decision by the High Court, the CPS will now be seeking to get the criminal case listed into court to offer no evidence.

There are a number of options that remain open, including further criminal prosecutions on different charges and a civil claim for damages which is set to go ahead.

There is ‘something else’ which you will simply have to wait to see, something which I can assure you’ll find of massive interest. This is not over, not by a long chalk…..  in a nutshell, you mess about with the constitution at your own peril, the unintended consequences can bite you back…..


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