CM, R (On the Application Of) v Crown Prosecution Service [2014] EWHC 4457 (Admin)

[2014] EWHC 4457 (Admin)Case No CO/4395/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
The Courthouse
1 Oxford Row
Venue LeedsDate Tuesday, 25th November 2014
West Yorkshire
LS1 3BG
B e f o r e:
LORD JUSTICE BEAN
MR JUSTICE KING
Between
THE QUEEN ON THE APPLICATION OF CMClaimantv
Between
CROWN PROSECUTION SERVICEDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R Wilson QC & Mr P Von Berg appeared for ClaimantMr S Heptonstall appeared for Defendant
J U D G M E N T
[1]The claimant in this judicial review application was born on 24th May 2002, so he is now twelve-and-a-half years old. He is entitled to anonymity.[2]He has been charged with two offences, allegedly committed on 14th April 2013, when he was 10 years 10 months old, against a younger boy, who is also entitled to anonymity and to whom we will refer as "ET", who was then 8 years 7 months old. The two charges are, firstly, sexual activity with a child, the particulars being that ET was induced to put his penis in the claimant's mouth. The second charge is sexual touching, alleging that the claimant touched ET's penis.[3]ET complained to an adult on 13th May and was interviewed in due course on video in the usual way. The claimant was interviewed by the police on 18th May.[4]An AIMS report was commissioned from the youth offender service and produced on 1st August. It recommended that the case was appropriate for a youth conditional caution and made other recommendations as to how the matter should proceed from there.[5]The difficulty with that was that the claimant has to this day never admitted the more serious of the two charges; so a caution in any form would simply not be available, even if it were considered to be an appropriate disposal of that charge.[6]On 12th November 2013 the claimant was notified he would be reported and that a summons would be issued in the Youth Court. A summons was duly issued in respect of the two charges. We are sorry to note that the case has been listed in the Youth Court on no less than 12 occasions so far, the first being on 13th January 2014, although it is right to say that neither the claimant nor ET has so far been required to attend court. The trial of the two allegations is listed for next week, 3rd December 2014; we shall come to the recent history in a moment.[7]On 23rd January 2014 the claimant became a looked after child. He was sent by the local authority to a residential placement where he has been subjected to therapy. He has not been the subject of a care order whether final or interim. We understand that the current position is that he is in the residential placement with his and his parents' agreement.[8]On 29th January the claimant's solicitor requested the Crown Prosecution Service to reconsider the decision to prosecute in the light of, among other things, the AIMS report; the fact that the claimant had been sent for the residential placement; and the possibility that it would lead to an alternative way of dealing with the matter, diverting this still very young child from the process of the court.[9]The CPS confirmed on 27th March that it had reviewed the case and decided the matter would proceed to trial. The defence then asked for a psychiatric report to be obtained from a consultant in child and adolescent psychiatrist, Dr Gupta, whom they had instructed. The matter came before a District Judge in the Magistrates' Court on 7th April, that hearing being (by agreement) in the absence of the claimant himself. There was a discussion about whether an admission of one count might or not be acceptable. At all events it was agreed that the case should be adjourned for Dr Gupta's report to be obtained.[10]Dr Gupta was not able to produce a report until 21st June. The claimant's solicitors again asked for the prosecution to be reconsidered in the light of Dr Gupta's report but on the 22nd July the CPS informed the defence that it had been decided to continue with the prosecution. A full review had been undertaken by a senior lawyer and it had been concluded that a prosecution remained in the public interest.[11]The present proceedings in the Administrative Court were issued on 22nd September, the claimant acting through his mother as litigation friend. Permission for judicial review was refused on paper but subsequently granted at an oral hearing by my Lord, King J, who directed that the case be heard on a highly expedited basis by a Divisional Court. Hence this hearing today, with the scheduled trial being next week.[12]Mr Richard Wilson QC and Mr Piers von Berg, for the claimant, rely on three heads of claim. The first is irrationality; the second is a mistake of fact as to the difference in age between the claimant and ET; and the third is failure to have regard to the settled policy of the Crown Prosecution Service. We shall return to those after setting out what appear to us to be the essential principles established by case law.[13]It is only in highly exceptional cases that a court will disturb the decision of an independent prosecutor to prosecute. The leading authority for this proposition is the decision of the House of Lords in R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 256. That was of course on its facts a very different case from the present and in particular did not concern a decision to prosecute a child.[14]As to that, guidance is to be found in the decision of this court (Watkins LJ and French J) in two conjoined cases reported as R v Chief Constable of Kent, ex p. L; R v DPP, ex p. B (1991) 93 Cr App R 416. Watkins LJ said:
"In respect of juveniles the discretion for the Crown Prosecution Service to continue or to discontinue criminal proceedings is reviewable by this court. but only where it can be demonstrated that the decision was made regardless of or clearly contrary to a settled policy of the DPP evolved in the public interest, for example the policy of cautioning juveniles, a policy which the Crown Prosecution Service is bound to apply where appropriate to the exercise of their discretion to continue or discontinue criminal proceedings. I envisage it will be only rarely that a defendant could succeed in showing that a decision was fatally flawed in such a manner as that."
[15]Before leaving this authority we observe that the second of the two cases which this court was then considering bore some similarity to the one before us. The applicant, B, a girl aged 12, was charged with theft, but having denied the offence did not have the option of a caution. There were allegations that the police had failed to make sufficient enquiry into all the circumstances of the case and thus it was argued that it was contrary to public policy to continue criminal proceedings against her.[16]On an application for judicial review of the decision to prosecute B, this court held that it could not be shown that either the Crown Prosecution Service or the police had fallen below the standard of care and enquiry expected of them in considering the public interest in all the circumstances of her case, and accordingly judicial review was refused.[17]Every case of course is different: it appears that B was at least 11, possibly 12, at the time of the alleged offence, older than the present claimant. On the other hand, the charges which the claimant faces in this case are considerably more serious than a charge of theft.[18]The next authority is another decision of this court, Moss & Son Ltd v Crown Prosecution Service [2012] EWHC 3658 (Admin), in turn referring back to a decision of the Court of Appeal (Criminal Division) in R v A [2012] EWCA Crim 434, in which

Lord Judge CJ had said:

"In summary, when it is sought to advance an argument for a stay by reference to policy or guidance issued by the Director of Public Prosecutions, by way of emphasis it is worth repeating, first, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions. Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance."
[19]We are prepared to assume for present purposes that the second of these three points does not apply, or at any rate does not account for a great deal, in the proposed prosecution of a child who was only 10 at the time of the alleged offence. To say that there is evidence on which a Youth Court could convict, therefore there is nothing more to be said, would plainly be an inappropriate approach when prosecuting such a young child. (It is not suggested, nor could it be, that was the approach adopted in the present case.) But the first and third of the three principles referred to in the case of A and in Moss do, in our judgment, apply.[20]A case which shows that it is not impossible to obtain judicial review of a decision to prosecute a child is R (on the application of E, S and R) v DPP [2011] EWHC 1465 (Admin). The case concerned three sisters, E, S and R. The allegation was that E had been engaged in sexual activities with S and R. It is a very striking feature of that case that while E, the defendant in the criminal proceedings, had been 12 years old at the time of the offences, the victims (her younger sisters) had been respectively only 3 and 2 years old. The sexual activity had been filmed. The issues were to what extent some of the acts filmed had been consensual, to what extent they had been simulated, and whether E had been groomed by an adult over the internet.[21]The application for judicial review was made on the basis that there were reports available to the court which indicated that neither E nor S and R could be therapeutically supported while the prosecution was being pursued, and that the consequent delay in getting support to the three children was likely to be harmful to the eventual recovery of all three of them. The decision letter saying that the prosecution would proceed was as Munby LJ put it, striking not so much for what it did say as for what it did not say. In particular it made no reference at all to what the report had said about the importance of therapy for E, nor to the welfare and interests of S and R. Munby LJ said:
"In short, the decision letter simply does not engage at all with what the report had said, in very plain and concerning terms, about the adverse effects on the welfare of all three children of the decision to prosecute E."
[22]It is not surprising that judicial review was granted on those facts; but the case is a long way from the present one.[23]The final proposition of law to which I should refer relates to Mr Wilson's ground of mistake of fact. It does not require authority to support it. If a mistake of fact has played a material part in a decision, that decision may well be vitiated by the mistake of fact.[24]I turn now to Mr Wilson's grounds, starting with irrationality. He submits that the decision makers in the Crown Prosecution Service failed to have regard to the fact that the claimant has been since early 2014 in a unit receiving therapy. The consensus is that the only possible disposal in the event of conviction, whether on one charge or both charges, is a referral order. A referral order would, it is submitted, be pointless because whereas at the time of the alleged offences the claimant was not receiving therapy and support or guidance, he is now.[25]The answer to that is to be found in a letter and report of Dr Idema-Trehan of the New Reflection Service who operate the residential accommodation concerned. Dr Idema-Trehan wrote:
"Observation of [C's] behaviour and communications in the past months indicate that [C] remains in denial of his sexual offending difficulties. He has already started to question and object to the level of supervision imposed on him and demonstrates high levels of controlling behaviours to resist adult supervision. He has indicated high levels of anxiety, distress and resistance about addressing the issues in therapy. His family is indicated to support him in his denial of the seriousness of his difficulties by misrepresenting the reason for him being at New Reflections and minimising the risks and impact of C's sexualised behaviour. Monitoring of the history of his use of the internet indicates he has very recently accessed inappropriate adult content albeit prior to his addition indicating the need for strict limits to be imposed on his use of the Internet."
[26]If an individual, even a young child, accused of sexual offences denies them, this may be a considerable hindrance to therapy. Dr Idema-Trehan's report, albeit written at an early stage of C's residential placement, was an important fact which the Crown Prosecution Service were entitled to take into account.[27]Under the heading of irrationality complaint is also made of failure to have regard to the report of Dr Gupta. This suggested, in short, that a prosecution could have an adverse effect on the claimant. Dr Gupta expressed the view that a prosecution would not be in the public interest. With respect to Dr Gupta, that assessment (as opposed to an assessment of the possible impact on the child) is one for the Crown Prosecution Service and not for an expert witness, however well qualified.[28]In any event, not all of Dr Gupta's findings are to the same effect. One must respect the fact, as I have no doubt the decision makers for the Crown Prosecution Service did, that Dr Gupta has been treating the claimant for some time. But it is worrying, for example, to find at page 22 of the report the doctor’s opinion that:
"[C's] concerning sexual behaviour requires ongoing support and intervention to bring about change, and also the fact that the doctor has previously given advice to [C] and his family about the best way of dealing with sexualised behaviour."
[29]Dr Gupta's report can be viewed in a number of ways, but I consider that the claimant has gone nowhere near establishing irrationality on the part of the CPS’s decision makers. They had the report available to them; indeed they had agreed to an adjournment of the Youth Court proceedings in order to obtain it. When it did arrive it could not be conclusive.[30]Dr Gupta expressed the view at paragraph 10 of the recommendations that:
"It is in everybody's best interests that [C] is assisted in changing his behaviour for his own protection, protection of the community and the prevention of further victimization."
Everyone agrees with that. But when Dr Gupta goes on to say that "I do not see how a conviction would assist this process", that is a matter for the prosecution, not for Dr Gupta. The irrationality argument fails.[31]Turning next to Mr Wilson’s ground of mistake of fact, this was the subject of an application to amend the grounds which we granted at the outset of the hearing. It derives from a document only recently disclosed. Mr Jones was the Crown Prosecutor who made the decision under scrutiny in July 2014, to proceed with the prosecution. Mr Jones prepared a note headed "case history". After setting out on page 2 a list of factors to consider when deciding whether or not to prosecute young defendants, he went on at page 3 to refer to the case of R(G) v Home Secretary about whether proceeding against a child is a disproportionate response or an infringement of the child's Article 8 rights. He continued:
"Applying these principles I feel that the public interest supports the prosecution. [ET] was only 8 and the 4 years difference in ages is relatively very significant. At the age of 8 [ET] cannot be considered mature. [ET] was not happy about the touching whilst still wanting to be a friend of [C], suggesting the younger boy was susceptible to the defendant's influence. There was no emotional parity between the parties."
He listed other relevant factors as the views of C's mother, the impact the abuse could have on ET, the risk of further offending and added "an alternative to prosecution is not available since C has not accepted fully what he did."[32]All of this is correct, except for one obvious mistake. The difference in age between C and ET was 2 years 3 months, not four years. Mr Jones in his note has taken the age of C in 2014, namely 12, and compared it with the age of the victim at the time of the offences, namely 8.[33]This matter came to light at the last moment when amended grounds were drafted. It is not a criticism of the claimant's advisers that they had not seen the document until now. We asked Mr Heptonstall, for the respondents, to obtain instructions about this note from Mr Jones. Mr Jones told us, through counsel, that he had discussed the case with the senior District Crown Prosecutor, Ms Gower, on the basis that the age gap between two boys was somewhere between two and three years. After the discussion with Ms Gower he made his decision to prosecute. When he wrote up the case a day or two later he made the blunder about the age gap. We accept what he says.[34]There has been a degree of muddle at various stages in these proceedings about the age gap. The original decision maker in 2013, Mr Clark, proceeded on the basis that at the time of the offences C was 10 and ET was 9; on that basis the gap would only have been one year. Mr Jones’ colleague Mr Alston, in one of the documents, appears to treat the two boys as having been to all intents and purposes of the same age. Either of these positions would be more favourable to the claimant’s case than the 2 years 3 months which is in fact the age gap. But the important points are that:(i) C was the older boy;(ii) he was by far the more sexually experienced of the two; and(iii) the prosecution were entitled to take the view that there was a degree of influence amounting to a type of coercion (though non-violent coercion) which he was exercising over the younger boy. Whether the age gap really was 2 years 3 months or four years does not seem to me to be a critical factor.[35]I turn finally to the argument based on failure to follow the CPS’ settled policy. The Code for Crown Prosecutors, and Crown Prosecution Service policy statements about the prosecution of young offenders, require the decision maker to consider the proposed defendant’s age, welfare and best interests. Careful consideration must be given to the relative ages of the defendant and the victim and their respective sexual and emotional maturity, and a note of the relevant public interest factors and the way they have been taken into account should be made. The impact of a prosecution on a child should be considered and if there is evidence of coercion, exploitation or abuse of trust this is a factor in favour of prosecution.[36]Mr Wilson submits that there is no evidence in the documentation created at the time of making the decision under scrutiny (in July 2014) that Mr Jones bore in mind the claimant's age, welfare or best interests. He also submits that there is no satisfactory evidence of coercion, exploitation or abuse of trust.[37]I do not consider that the prosecution were guilty of any failure to follow their settled policy. It is true that Mr Jones did not recite either in his internal documentation or in his letter to the claimant's advisers of the 22nd July that he had carefully taken into account the fact that the claimant was aged only 10 at the time of the offence. But, with respect, this is a box ticking point. He plainly had taken it into account. The case would not have been adjourned so frequently if it had not been about the prosecution of a child of 10. The prosecution would not have awaited Dr Gupta's report. The matter would have been dealt with months earlier. Of course, a decision of this kind is more difficult and more finely balanced when the alleged offender was at the time of the incidents concerned less than a year over the minimum age of criminal responsibility. The prosecution had this all well in mind. They were also entitled to bear in mind that this was a charge of some seriousness, that the claimant was denying it, that he had apparently a history of sexually inappropriate behaviour going back some five years and had been challenged about it by adults, including Dr Gupta, apparently without success at the time the offences were committed. Some of the reports identified the claimant, in Mr Heptonstall's words, as "an intelligent and highly controlling person who manipulated those more vulnerable and had been regarded as a sexual predator", although this must be qualified by adding that if so he was a very young one. Bearing all these things in mind together with the highly exceptional nature of this court's jurisdiction to intervene, I conclude that there are no grounds for quashing the prosecution decision in this case. I would therefore dismiss the application for judicial review.

MR JUSTICE KING: I agree.

LORD JUSTICE BEAN: Thank you all very much for your assistance. Are there any other orders that are required?

[41]MR HEPTONSTALL: My Lord, I recognise the youth is subject to the support of the legal aid fund. There seems no point in making any application.

LORD JUSTICE BEAN: Quite right, Mr Heptonstall, absolutely none. Mr Wilson, do you need an order for legal aid taxation?

[43]MR WILSON: I think they call it detailed assessment these days.

LORD JUSTICE BEAN: You may have that, certainly.

[45]MR HEPTONSTALL: My Lord, because of the imminent trial, I have made enquiries. Of course I only raise it to dismiss it. The Crown's duty to disclose does not arise under the CPIA until a not guilty plea has been entered. It will be dealt with tomorrow regardless of whether there is a plea or not. But the court may wish to give some further directions to ensure the trial does take place next Wednesday as planned. This court of course can convene and sit as district judges, pursuant to section 66 of the Courts Act 2003, and be seized of the matter.

LORD JUSTICE BEAN: We can. I do not know if we need to get into formal orders unless either of you tells us that we should. Surely what should happen first is that Mr Wilson's team need to tell you, by tomorrow at the latest, whether or not the complainant is to be required to attend. If he is then you must use your best endeavours to ensure his participation in some way. I should have thought, although I am no expert on Youth Court procedure, that he should attend by video link. I do not think it would be appropriate to be making orders. But clearly arrangements need to be made, firstly, for you to disclose anything which is yet to be disclosed tomorrow, and secondly, for you to make arrangements for the complainant to participate. Apart from that I am not sure what else we could or should say.

[47]MR HEPTONSTALL: All now can work towards that. I am grateful for the indication.