Lawful for the DPP to discontinue private prosecution

In R (on the application of Gujra) v CPs [2012] UKsC 52 the supreme Court was asked to consider an appeal by Mr Gujra against a Court of Appeal decision which upheld a decision by the CPs to take over and discontinue a private prosecution brought by him. In coming to its decision (Lord Mance and Lady Hale dissenting) the ongoing division of opinion regarding the ancient right to privately prosecute was exposed. The appeal was focused on the change of policy by the DPP in 2009 to take over and discontinue private prosecutions unless the evidential test supported at least a 51% chance of conviction.  In detailed judgements both Lord Wilson, with whom the majority agreed, and Lord Mance, with whom Lady Hale agreed, provide an interesting and detailed history of the right to bring a private prosecution and, crucially, the status that such a right should be afforded following the Prosecution of Offences Act 1985 which was born out of the 1981 Royal Commission. Lord Wilson, though in favour of the retention of the right to privately prosecute, found himself "wholly unable to subscribe to the view that, in reaffirming, in qualified terms, the right to maintain a private prosecution in section 6 of the 1985 Act, Parliament must be taken to have intended that the Director should decline to exercise his discretion so as to intervene and discontinue it even if it lacks a reasonable prospect of success." Lord Mance, however has long expressed his strong support for the constitutional right of a citizen to bring a private prosecution as a safeguard against a failure of the state to exercise its discretion in favour of prosecution properly. He gave judgment accordingly.