EAD, R (on the application of) v Director of Public Prosecutions [2025] EWHC 2541 (Admin)

[2025] EWHC 2541 (Admin)Case No AC-2024-LON-003183
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 October 2025
Before
THE HONOURABLE MR JUSTICE PEPPERALL
Between
on the application of EADClaimantDIRECTOR OFDefendantPUBLIC PROSECUTIONSDefendant(1) EXDInterested Parties(2) CHIEF CONSTABLE OFInterested PartySOUTH WALES POLICEInterested Party
Phillippa Kaufmann KC and Pippa Woodrow(instructed by ITN Solicitors) for ClaimantLouis Mably KC (instructed by the Crown Prosecution Service) for DefendantHearing Hearing date: 18 June 2025
Approved Judgment

This judgment was handed down remotely at 10.30 a.m. on 7 October 2025

[1]The claimant alleges that he was the victim of serious sexual offences as a small child at the hands of an older cousin. By this claim for judicial review, he challenges the June 2024 decision of the Crown Prosecution Service (“the CPS”) not to prosecute his alleged abuser. THE FACTS[2]The claimant will shortly turn 20. Although born female, he now identifies as male. His older cousin, the first interested party in this case, is the son of the claimant’s paternal uncle. The claimant alleges that, when he was a small child, his cousin orally raped him, forced him to masturbate the cousin, and kissed him.[3]The claimant first disclosed his allegations to his mother in December 2019 when he was 14. His parents confronted the uncle who was a serving police officer in South Wales Police. The uncle spoke to his son and later indicated both to the parents and to his employer that his son had made some admissions.[4]On 10 January 2020, the mother reported the matter to South Wales Police. The claimant was spoken to on 13 January. The police officer explained the special measures that would have been available to him at court, but the claimant made clear that he did not want to make a complaint or attend court. The officer’s notes record the following details:4.1 The claimant described the abuse as having started when he moved in with his grandmother. He only remembered it happening once there. They were in his big brother’s attic bedroom when the cousin forced him to kiss him.4.2 He described a second occasion in the cousin’s bedroom at his house when they had been playing with teddies. The cousin told him to go under the covers and to “do stuff with his willy”. He said that his cousin held his head as he was gagging on it. The cousin then wanted to cuddle under the covers but the claimant said that he went downstairs and that “that was the last of it all”.[5]Subsequently, the claimant agreed to attend a formal interview on 5 February 2021. On this occasion he made the following disclosures:5.1 In March 2012, when the claimant had been about 7, he moved in with his grandmother. He described his cousin staying regularly and sharing his bedroom in the attic. One day, they had been playing when the cousin asked him to sit with him on the bed. He did so and the cousin grabbed his face and forcibly kissed him.5.2 He then described an incident at the cousin’s house when they had been playing with teddies. He was not sure whether it happened before or after the kissing incident. The cousin put the quilt over them both and told the claimant to lie down. The cousin took his trousers off and showed the claimant his penis. He masturbated until his penis was hard and placed the claimant’s hand on his penis and made him stroke it; the cousin placing his hand over the claimant’s hand. The cousin then put his hand on the claimant’s head and put his mouth on to the cousin’s penis. The claimant said that he could not breathe and was gagging quite a lot. The incident went on for some time with the cousin forcefully maintaining the claimant’s head in place. The cousin then asked him to go under the covers and tickle his arms.5.3 The claimant described this playing on his mind and thinking that it had all been a bad dream. He said that when he had sex education classes at school, he realised that what had happened had been real. He said that he struggled to comprehend it and felt sick when the classes addressed the issue of consent.5.4 He described disclosing the abuse to his mother and subsequently being told that his cousin had admitted it. The claimant then said that he felt relieved and thought that it was not just him “being weird” but had actually happened.[6]The case was in due course referred to the CPS for a charging decision. By a decision made on 31 January 2021, the CPS considered that there was sufficient evidence to provide a realistic prospect of conviction but that it was not in the public interest to prosecute the cousin given that he had been 11 or 12 at the time of the alleged offences. The claimant’s parents exercised the right to seek a review of the charging decision under the Victim’s Right to Review (“VRR”) scheme, but the original decision was upheld on 12 April 2022.[7]In deciding that prosecution was not in the public interest, the CPS considered not just the cousin’s age at the time of the alleged offences (being 11 and therefore only marginally above the age of criminal responsibility) but also the fact that there were only two alleged instances of sexual offending.[8]Subsequently, the claimant made further disclosures in February 2023. He was interviewed on 30 March 2023 when he made the following allegations:8.1 The claimant said that the abuse had happened often. He described incidents when he was made to masturbate the cousin, forced to kiss him and perform oral sex. He thought that the abuse happened over the course of three years from when his grandfather died until he moved out of his grandmother’s house.8.2 He said that the incidents at his grandmother’s house happened on his brother’s bed. He did not know how often, but the cousin came over once every 4 weeks. The claimant said that something would happen any time that they were alone together. It happened quite a lot of times.8.3 He said that the incidents at his cousin’s house happened on the lower bunkbed. He recalled that the family went over to his cousin’s house about twice a month.8.4 He also described abuse in the guest room at his aunt’s house. They went there less often but the cousin would be forceful and take the opportunity when he was in the room with the claimant.8.5 Further, he described abuse happening at his other grandmother’s house. He went there every two months and the abuse happened on the double bed in the guest room.8.6 The claimant said that he saw his cousin about three times a month but that it would not happen every time. He could not remember the first incident or specific incidents since they all felt the same. He just remembered them as being different times as they wore different clothes. He said that all three things (kissing, touching and oral sex) happened at his grandmothers’ houses and at his own house, but that he thought that there was no kissing but only oral sex and touching at his cousin’s house.8.7 The claimant said that he thought it was a dream but it was too detailed and happened too many times to have been a dream. He said that he had not told the officers everything before as he had been scared and hadn’t fully understood it himself. He thought that he would get into trouble or that people would not believe him.[9]The new disclosures were investigated. The file was again forwarded to the CPS for a fresh charging decision. By a decision dated 11 January 2024, the CPS concluded that there was no longer a realistic prospect of conviction and that the case therefore fell at the first hurdle. The claimant again exercised his right to seek a review of the charging decision under the VRR scheme. By a decision made on 24 June 2024 following a review of the charging decision, the CPS upheld the January decision. This claim for judicial review challenges that decision. THE DECISION[10]The review of the second charging decision was undertaken by Alexander Slater, a specialist prosecutor in the CPS’s Appeals and Review Unit. The letter of 24 June 2024 explains that an independent reviewer can only overturn a previous charging decision when satisfied that the previous decision was wrong. Mr Slater considered the CPS legal guidance entitled “Rape and Serious Sexual Offences” and “Guidelines on Prosecuting Cases of Child Sexual Abuse”.[11]The decision letter rehearsed the evidence and the developing way in which the claimant had reported this abuse. Mr Slater observed that while the type of activity alleged was the same, the number of incidents alleged in the second interview had increased significantly. He concluded that this was a material inconsistency between the first and second interviews. Moreover, the number of incidents being alleged was different to that which was recorded when the claimant first spoke to the police on 13 January 2020 when he said that he could only remember sexual abuse happening at his grandmother’s house “once” and that the isolated episode at the cousin’s home was “the last of it all”.[12]Mr Slater concluded that these inconsistencies would seriously undermine any prosecution. He reported:
“I had to consider the effect of that material inconsistency on the prosecution case. On the one hand, it is correct to say that sometimes accounts of sexual abuse ‘develop over time’, for example as a complainant grows to trust the authorities or come to terms with their abuse. When the inconsistency was put to your client, they said ‘… I was scared. I didn’t fully understand it myself. I was scared of how it was going to affect how things would go in the future … I didn’t know how things were going to go. I was scared that I wouldn’t be able to see my parents … as I’ve got older, I’ve kind of accepted what happened … at the time I couldn’t comprehend what happened to me. I tried to say as much as I could without pushing myself but now, I think … I know everything happened and it was real.’ I had to consider that explanation set against what would in my view be the inevitable defence argument that the reason the further allegations were not mentioned in the first report was that the ‘new’ allegations were somehow tailored to meet the issues that were identified in the initial VRR letter. My judgment was unfortunately that this situation was different to a typical ‘developing account’ situation – here, your client had in the first report positively asserted that there was no more abuse. The same was true of [the account given on 13 January 2020]. The second interview directly contradicted that position. Moreover, the second interview did not add allegations of more severity or allegations of a distinct nature – it described effectively ‘more of the same’. That should not in any way whatsoever be read as somehow cheapening your client’s allegations. With regret, my judgment was that a jury would be likely to find it difficult to understand why your client’s position had changed. This is particularly so given the jury would inevitably be considering what your client was told in the initial VRR letter provided after the first report.”
[13]Mr Slater noted that the claimant referred to the occasion when the cousin gave him a teddy bear after an incident of abuse. In the second interview, the claimant added that the cousin had said “you can have this for what happened today”.[14]Mr Slater also noted that while originally the claimant only described abuse happening at one grandmother’s house and at the cousin’s house, there were now four locations. He concluded that the two new locations constituted a further material inconsistency between the accounts given in 2020 and the second interview.[15]Mr Slater then referred to the fact that the claimant had told the police that he had convinced himself for a very long time that the incidents were a dream. He had added that even when he “came out with it” he still didn’t know it was real. He said that his feelings were validated by the knowledge that his cousin had confirmed that the abuse had occurred. Mr Slater then reported:
“I have considered carefully your client’s description of the incidents as being like a ‘dream’. Later in this second interview, your client clarified that thinking the incidents were a dream was ‘like a coping mechanism… trying to reassure myself it didn’t happen just to… protect myself’. I was satisfied that the ‘dream’ issue could not fairly be regarded as an undermining feature of the case. In my judgment a jury would be likely to find acceptable the explanation for the ‘dream’ rhetoric put forward by your client. The ‘dream’ rhetoric was not therefore a significant factor in my decision.”
[16]Mr Slater noted that in both interviews the claimant had said that the abuse had stopped when he had left his grandmother’s home. In the first interview, he thought that was in April 2014 when he had been 8 and the cousin 12. In the second interview, the claimant said that he thought he had been 9. Mr Slater noted that he had not turned 9 until October 2014, some six months after he had suggested in his original interview that he had left his grandmother’s house. Mr Slater continued:
“In my judgment, this presented a difficult inconsistency, in that one of your client’s two video interviews on this point must be incorrect – put another way, either your client left their grandmother’s home later than April 2014 (meaning the first interview was incorrect), or your client was not yet nine years old when the abuse ended (meaning the second interview was incorrect). This inconsistency was notable because of its effect on the suspect’s age: either he was 12 years old (first interview) or potentially as old as 14 years old (second interview). The inconsistency is notable because of the extent of the suspect’s theoretical culpability increasing as he got older, pursuant to the CPS guidance on prosecuting cases of child sexual abuse. In my judgment, the inconsistency was difficult to reconcile – there was inevitably a doubt over which version was correct. I considered that any doubt would be likely to be resolved in favour of the suspect. In so concluding, I had to have regard to the reference in your client’s mother’s diary to having moved out of her mother’s home in 2014. This was not of itself a determinative factor in my consideration of your client’s case, but I did find the inconsistency hard to reconcile.”
[17]Mr Slater reviewed the other evidence in the case, the unused material and the police’s log of this investigation. He concluded that appropriate evidence-gathering steps had been taken. He then addressed the claimant’s criticism of the police for not seeking a statement from the uncle given the apparent admissions made to him by his son. He noted that the log identified the uncle as being a person from whom a statement should be taken. The officer in charge of this investigation (the “OIC”) confirmed to Mr Slater that the uncle had been asked numerous times to make a statement but had been unwilling to do so. He had, however, provided a report to South Wales Police’s Professional Standards Department. Mr Slater concluded that the police had properly exhausted this line of enquiry and noted that people cannot be forced to make statements.[18]Mr Slater considered the uncle’s report to Professional Standards in response to the allegation that he, as a serving police officer, had failed to report or act upon his knowledge of a criminal offence. By that report, the uncle was requested to identify what admissions had been made, why he had not reported the alleged offences, and why he had failed to assist the criminal investigation. Mr Slater observed that the report was therefore likely to cover the same ground as any witness statement that the uncle might have made in the criminal investigation. He then noted:
“The suspect’s father explained that he was at home in late December 2019. He confirmed that he was spoken to by your client’s parents, whom he described as visibly upset and wanting to discuss an urgent matter. He described that your client’s mother said that your client had disclosed an incident of sexual contact with the suspect which was later described as oral sex. The suspect’s father said that he was in shock. He apologised because he felt responsible for the suspect’s actions. Your client’s parents then left. The suspect’s father called the suspect downstairs and explained the allegations to him. The suspect is said to have started crying. The suspect told his father that, on a particular day, he had been playing ‘dares’ with your client and [his brother]. The suspect said that during the game, he and your client had kissed. [The brother] then went downstairs, and your client is said to have kissed the suspect’s privates. This incident was said to have happened just prior to comprehensive school. On disclosing this to his father, the suspect is said to have become visibly upset, punching himself and head-butting the wall. The suspect’s father explained that he asked his son no further questions, but that he called your client’s father and told him what the suspect had said. The suspect’s father said that he told your client’s parents that he would report the matter to the police, but that your client’s parents asked him not to because it was not what your client wanted. The suspect’s father agreed that he delayed in reporting the matter, and further agreed that he knew reporting it was his duty. Ultimately, the suspect’s father said that he told two police officers what had happened at around the same time that your client’s mother reported the matter to the police. Later, the suspect was interviewed by the police. The suspect’s father was not aware of the contents of the conversation between the suspect and his solicitor – this stayed between them on account of legal privilege.”
[19]Analysing this and the cousin’s silence in his police interview, Mr Slater concluded:
“I had to consider the status of the suspect’s apparent ‘admissions’ in this case. The suspect made no comment during his police interview, so there could be no assistance derived therefrom save for a potential adverse inference which was not in my judgment of itself sufficient evidence to help prove the case. The suspect was young, of good character and acting under legal advice. My judgment was that an adverse inference would provide limited assistance. That left the ‘admissions’ set out in the suspect’s father’s report to Professional Standards. Even assuming that those ‘admissions’ would be admissible in a criminal trial, which in my judgment is not a foregone conclusion, my judgment was regretfully that those ‘admissions’ were not capable of amounting to offences which pass the Full Code Test. The suspect’s version of events was that the single episode happened just prior to comprehensive school, which would have made the suspect a maximum of 11 years old. Even were the incident capable of amounting technically to a sexual offence, my judgment is that prosecuting on the basis of the suspect’s admissions would not have been in the public interest. My judgment was that his ‘admissions’ disclosed the sort of activity better described as childish sexual experimentation rather than activity necessitating criminal justice system intervention.”
[20]Mr Slater then drew the threads together. He considered that there were inconsistencies in the claimant’s account as to the duration of the abuse, the number of incidents and the locations of the abuse. He reported:
“I considered very carefully your assertion that, rather than ‘inconsistencies’, these changes were better described as natural changes occurring as a complainant’s account develops over time. There are, in my view, circumstances where that assertion would be favourable. However, in this case, it was in my judgment a realistic consideration that the inevitable point would be made that the second report ‘filled in the gaps’ identified by the VRR letter generated after the first report. It was realistic in those circumstances, in my view, to term the differences between the first report and the second report as ‘inconsistencies.’ This was not a case where the account simply developed – for example, where a complainant reveals some abuse, then later more serious abuse. This was a case where your client was in contact with the police and specifically gave evidence in the first report to the effect that there were no other instances of abuse. This included the assertions [made on 13 January 2020] that abuse only happened ‘once’ in your client’s grandmother’s house and that the single second incident at the suspect’s house was ‘the last of it all.’ To contradict that position in the second report was in my judgment capable of being regarded as ‘inconsistent’ rather than ‘developing.’ In the round, I could not satisfy myself that the evidential stage of the Full Code Test was met.”
THE LAW THE CODE FOR CROWN PROSECUTORS[21]The Director of Public Prosecutions (“the DPP”) is required by s.10 of the Prosecution of Offences Act 1985 to issue a Code for Crown Prosecutors giving guidance on the general principles to be applied when making charging decisions. Paragraph 4.1 of the current edition of the code provides that generally prosecutors must only start or continue a prosecution where the Full Code Test is met. The test has two stages: the evidential stage and the public-interest stage. Paragraph 4.3 provides: “The Full Code Test should be applied:(a) when all outstanding reasonable lines of inquiry have been pursued; or(b) prior to the investigation being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution.” (a) when all outstanding reasonable lines of inquiry have been pursued; or[22]The test at the evidential stage is whether the prosecutor is satisfied that there is “sufficient evidence to provide a realistic prospect of conviction … on each charge”. In applying the test, the prosecutor must consider what the defence may be and how it is likely to affect the prospects of conviction. The Code provides, at paragraph 4.6:
“A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.”
[23]The proper application of the test is further explained at paragraphs 4.7-4.8:
“4.7 The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which they might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty. 4.8 When deciding whether there is sufficient evidence to prosecute, prosecutors should ask themselves the following: Can the evidence be used in court? Prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess: • the likelihood of that evidence being held as inadmissible by the court; and • the importance of that evidence in relation to the evidence as a whole. Is the evidence reliable? Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity. Is the evidence credible? Prosecutors should consider whether there are any reasons to doubt the credibility of the evidence. Is there any other material that might affect the sufficiency of evidence? Prosecutors must consider at this stage and throughout the case whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and material that may be obtained through further reasonable lines of inquiry.”
Can the evidence be used in court? Prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess: • the likelihood of that evidence being held as inadmissible by the court; and • the importance of that evidence in relation to the evidence as a whole. Is the evidence reliable? Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity. Is the evidence credible? Prosecutors should consider whether there are any reasons to doubt the credibility of the evidence. Is there any other material that might affect the sufficiency of evidence? Prosecutors must consider at this stage and throughout the case whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and material that may be obtained through further reasonable lines of inquiry.”[24]Save where it is clear that the public interest does not require prosecution before reviewing all of the evidence, prosecutors are advised that they should only consider the public-interest test after considering whether there is sufficient evidence to prosecute: Code, para. 4.4. Although the public-interest test was considered in the initial charging decision, the June 2024 decision that is impugned in these proceedings was taken on the basis of the test at the evidential stage. Accordingly, it is not necessary to elaborate further as to the proper application of the public-interest test. CPS GUIDANCE[25]The CPS has promulgated guidance in respect of the prosecution of rape and serious sexual offences. Chapter 2 of the 2021 guidance “Rape and Serious Sexual Offences” addresses the application of the Full Code test to such offences. The guidance stresses that these cases require a careful and balanced assessment of all relevant evidence. The guidance specifically addresses issues of credibility, reliability and inconsistency:
“Jurors are bound to consider internal and external consistency, particularly where there is no other direct evidence. It follows that prosecutors should consider the likely impact of any inconsistencies. Evidence of inconsistency does not necessarily mean that an account is unreliable or lacking credibility … • In any event the mere fact that a complaint emerges in an inconsistent way does not mean it is untrue. There are a number of reasons why a complaint may emerge in an inconsistent way and those are matters on which a jury may be directed including the impact of trauma on memory … • It would, though, be wrong to ignore levels of inconsistency which, even with the benefit of a warning about myths and stereotypes, are nonetheless likely to prove a significant cause of concern to any jury.”
[26]Further CPS guidance entitled “Child Sexual Abuse: Guidelines on Prosecuting Cases of Child Sexual Abuse” advises:
“A victim of child sexual abuse may not give their best and fullest account during their first recorded (ABE) interview or statement. This may be for a variety of reasons: they could have been threatened; they might be fearful for themselves or their family; the offending may have been reported by others and they may be reluctant to cooperate at that stage. They might not have identified themselves as a victim or they could be fearful that the police will not believe their allegations. They may initially distrust the police and could well use the interview to test the credibility of the police. The account given may take a number of interviews, with the child or young person giving their account piecemeal, sometimes saving the ‘worst’ till last, having satisfied themselves that they can trust the person to whom they are giving their account. Carefully thought-out patient intervention by the police and other agencies can ultimately disrupt and break the link to the offender(s). A seemingly contradictory initial account is therefore not a reason in itself to disbelieve subsequent accounts given by the victim and these contradictory accounts should instead be seen as at least potentially symptomatic of the abuse.”
[27]CPS guidance addresses the effect of trauma and psychological injury on victims. The Rape & Serious Sexual Offences guidance advises:
“Prosecutors need to be aware of the impact of trauma for many reasons, including: • To ensure the quality of prosecutor decision-making is as informed as possible • To highlight case building opportunities. Trauma does not have a uniform impact on victims. In order to evaluate evidence in accordance with the Code, prosecutors need to understand the complexities surrounding the impact of sexual assault and specifically the impact of trauma on memory, behaviour and demeanour. It may also impact on candour, for example where a complainant is reluctant to disclose full details of the incident. The evidential stage of the Code requires prosecutors to consider whether evidence is reliable or credible. To reach a Code compliant decision, prosecutors will need to be aware of all the potential impacts of trauma to fairly assess the credibility and reliability of the complainant … When a person first reports a sexual offence, he or she may be upset, embarrassed, possibly frightened or angry. He or she may say the most recent thing that happened and if there has been a series of events, this won’t always be the most serious incident; they may only give half the story because they don’t know how the listener will react; a young person or a child may deny that anything happened at all, through shame or fear of the consequences. Prosecutors cannot assume that at this early stage the complainant is always able to give a coherent, chronological account for evidential purposes. By the time they give their ABE interview, he or she may have adjusted to the idea of speaking out about what happened; they will have begun to gather and order their memories and most importantly, they are taken through their account by a trained interviewer who will guide them into giving a full account in a chronological order specifically for use in a criminal trial. However, even then, if there have been a series of rapes, perhaps over a long period of time, or for other reasons it may still not be possible for a complainant to recall precisely what happened and when. It is important that each case is considered on its own merits and the account must be considered in the context of all the other evidence.”
[28]Guidance is also given in the CPS’s publication entitled “Mental Health: Victims & Witnesses” and in its “Psychological Evidence Toolkit”. Prosecutors must recognise that victims suffering from mental health conditions may be reluctant to report crime and think that they will be deemed to be unreliable witnesses who will not be taken seriously. Further:
“Psychological and physiological reactions occurring at the time of the trauma can have an impact upon the individual’s ability to give a coherent, consistent account of their experiences. Subsequent changes to the victim’s account of events may be viewed as evidence that they cannot be believed. Post-traumatic symptoms will also potentially affect recall and consistency - indeed an inability to recall aspects of the event is one characteristic symptom of PTSD (post-traumatic stress disorder). Victims experience feelings of shame and self-blame and this may result in an incomplete or inaccurate account of the circumstances surrounding the assault. Cultural issues may have a significant impact, as may the stage of development, if the victim is a child.”
CHALLENGING CHARGING DECISIONS[29]Charging decisions taken by the CPS are susceptible to judicial review on conventional grounds: R (Smith) v. DPP [2024] EWHC 203 (Admin). In particular, the court may disturb a decision not to charge where the DPP has applied an unlawful policy; failed to act in accordance with his own settled policy; or made a perverse decision that no reasonable prosecutor could have reached: R v. DPP, ex parte C [1995] 1 Cr App R 136, at p.141C.[30]In R (B) v. DPP [2009] EWHC 106 (Admin), [2009] 1 W.L.R. 2072, Toulson LJ observed, at [49]-[50], that in considering whether there is a realistic prospect of conviction the prosecutor should not adopt what he called the “bookmaker’s approach” based on past experience of similar cases but should imagine himself to be the fact finder and ask whether on balance there is sufficient evidence to secure a conviction.[31]That said, the courts tread warily: 31.1 In R v. DPP, ex parte Manning [2001] 1 Q.B. 330, Lord Bingham CJ observed, at [23]:
“Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R v. DPP, ex parte C … But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the Crown Prosecution Service, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial.” 31.2 Lord Bingham returned to the theme in the House of Lords in R (Corner House Research) v. Director of the Serious Fraud Office [2008] UKHL 60, [2009] A.C. 756. He observed, at [30]-[32]: “30. It is accepted that the decisions of the Director are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator … 31. The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend. Secondly, the courts have recognised … ‘the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits’. Thirdly, the powers are conferred in very broad and unprescriptive terms. 32. Of course, and this again is uncontroversial, the discretions conferred on the Director are not unfettered. He must seek to exercise his powers so as to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice.” 31.3 In L v. DPP [2013] EWHC 1752 (Admin), Sir John Thomas P stressed that challenges to charging decisions taken by the CPS will succeed only in “very rare cases”
. He explained, at [6]-[7]:
“6. That is for the good and sound constitutional reason that decisions to prosecute are entrusted under our constitution to the prosecuting authorities, in this case the Director of Public Prosecutions and those who work under him in the Crown Prosecution Service. 7. It is very important that the constitutional position of the Crown Prosecution Service as an independent decision maker is respected and recognised. The courts have therefore adopted this very strict self-denying ordinance. They will, of course, put right cases where an unlawful policy has been adopted or where there has been a failure to follow policy, or where the decisions are perverse. But each of those is likely to arise only in exceptionally rare circumstances and that must be borne in mind.” 31.4 Further, Sir John referred to the then intended new scheme for allowing victims to seek a review of charging decisions. He said that henceforth where there has been such a review, the prospects of a successful challenge to the charging decision would be “very small”
. He added, at [10]:
“What is important to the future conduct of such cases is to recognise that the CPS now has this procedure in place. It has this consequence. It is highly likely that where a review has taken place, and the review can be seen to be careful and thorough, proceedings for judicial review to challenge the decision will be the more difficult to advance. That is because the CPS will have independently reconsidered the position and, unless it can be shown that that decision is within one of the three categories I have mentioned, it will therefore be the more difficult to show that the decision is one that can be successfully challenged.” 31.5 In R (Monica) v. DPP [2018] EWHC 3508 (Admin), [2018] Q.B. 1019, Lord Burnett CJ observed, at [44]: “The circumstances in which this court will intervene in relation to prosecutorial decisions are rare indeed. The principle of the separation of powers leads, as Sir John Thomas P put it in L v. DPP …, to the adoption of a ‘very strict self-denying ordinance’.” 31.6 Further, at [46], Lord Burnett summarised the principles applicable to such cases: “We distil the additional propositions from the authorities and the principles underlying them: (1) Particularly where a CPS review decision is exceptionally detailed, thorough, and in accordance with CPS policy, it cannot be considered perverse: L’s case, para. 32. (2) A significant margin of discretion is given to prosecutors: L’s case, para. 43. (3) Decision letters should be read in a broad and common sense way, without being subjected to excessive or overly punctilious textual analysis. (4) It is not incumbent on decision-makers to refer specifically to all the available evidence. An overall evaluation of the strength of a case falls to be made on the evidence as a whole, applying prosecutorial experience and expert judgment.”
[32]Although judicial review of a charging decision is an exceptional remedy, it is more likely to be granted in cases such as this where the decision is not to prosecute than where the decision is that charges should be brought. As Toulson LJ explained in R (B) v. DPP at [52], that is because the former is final subject only to judicial review whereas a decision to prosecute leaves the defendant free to challenge the prosecution through the criminal courts.[33]Nevertheless, in pursuing this challenge to a very full decision of an independent and experienced prosecutor reviewing another prosecutor’s decision not to bring charges as part of the VRR scheme, the claimant faces something of an uphill task. THE GROUNDS[34]By this claim for judicial review, the claimant argues five grounds:34.1 Ground 1: That the CPS took an irrational approach to the perceived inconsistencies. Specifically: a) by the analysis of the suggestion of fabrication in response to the 2021 charging decision; b) by failing properly to apply relevant CPS policies and relevant material; and c) by misinterpreting and mischaracterising the claimant’s accounts.34.2 Ground 2: That the CPS failed to view the claimant’s credibility holistically.34.3 Ground 3: That the CPS took an irrational approach to the relevance of the cousin’s accounts.34.4 Ground 4: That the CPS took an irrational approach, erred in law and failed to follow policy guidance in respect of the evidence of the uncle.34.5 Ground 5: That the state has failed to comply with its positive obligation to investigate and prosecute credible allegations of treatment in breach of Article 3 of the European Convention on Human Rights and Fundamental Freedoms. GROUND 1 THE ARGUMENT[35]Phillippa Kaufmann KC and Pippa Woodrow, who appear for the claimant, challenge the CPS’s central conclusions that:35.1 the claimant’s account in the second interview was materially inconsistent with his earlier accounts rather than this being a case of the account of a vulnerable adolescent having developed over time; and35.2 such inconsistencies undermined the likelihood of conviction.[36]Ms Kaufmann argues that these conclusions were based on three material errors:36.1 First, the erroneous inference as to a causal link between the 2021 charging decision and the 2023 account. In addressing this limb of the argument, Ms Kaufmann addresses the key inconsistencies found by the CPS: a) As to duration, she submits that the two police interviews had been consistent in identifying the abuse as having happened while the claimant had lived at his grandmother’s house. Accordingly, there was no inconsistency in the essential timeframe, but the claimant had simply been mistaken as to the age that he had been when he moved house. b) As to the number of incidents, Ms Kaufmann stresses that the incidents occurred in the same timeframe, namely while the claimant had been living with his grandmother. The increase in the number of incidents during that same timeframe could not, she submits, address the previous identification of the absence of further offences committed by the suspect “before or after those committed against [the claimant]” as a barrier to prosecution.36.2 Secondly, the false distinction between inconsistencies and developments in the claimant’s account. This, Ms Kaufmann argues, was both irrational and a failure to follow the CPS’s own guidance.36.3 Thirdly, the CPS’s failure to apply its own guidance on assessing credibility and the reasons for delayed disclosure in such cases: a) Ms Kaufmann argues that the claimant explained that he had not previously disclosed the full extent of the abuse because of his desire to avoid talking about it; his belief that he had provided the specifics required; his fear of getting into trouble or of being prevented from seeing his parents; his fear of not being believed, particularly given his cousin’s popularity; and his immaturity and lack of understanding or processing what had happened to him. b) She argues that there was abundant credible and contemporaneous evidence that supported his reasons for delay. In particular there was medical evidence of his difficulties in talking about his abuse; his feelings of fear, responsibility and guilt; his concern about damaging family relationships; his desire to avoid getting his cousin into trouble; his difficulties in processing what had happened; and his fear of not being believed. c) Ms Kaufmann submits that a predictive approach as to how the jury might assess the claimant is not a legitimate basis for applying the Full Code test. Further, such approach fails to take into account the directions that the jury can be expected to receive. d) Ms Kaufmann argues that the CPS erred in taking the 2021 charging decision as its starting point and failed to take into account the circumstances and timing of the further disclosures in 2023. She submits that the medical evidence is not that the claimant was harbouring any resentment but that he had come to terms with the 2021 decision. The disclosures followed therapeutic intervention and should have been seen against CPS guidance that accounts of trauma are likely to develop during such intervention, particularly where the victim has suffered serious trauma, has poor mental health and is developmentally immature.[37]Louis Mably KC, who appears for the DPP, responds that Mr Slater clearly identified and applied the relevant guidance. He submits that it should be assumed that he will have properly informed himself and that the decision should be read in a broad and commonsense way. He argues that the central issue for the CPS was inevitably the fact that the claimant had given two different and inconsistent accounts. On any view, that was going to be a major issue at trial and the decision-maker was right to bring an intense focus to bear on how a prosecution would fare in those circumstances.[38]Mr Mably argues that the new interview clearly reported much more serious offending such that it was obviously going to strengthen the case for concluding that the public-interest test was met:38.1 As to duration, the key point was not that the time period remained tethered to the period during which the claimant had lived with his grandmother. The abuse now happened between the ages of 7 and 9. It therefore took place over a longer timeframe and the cousin was obviously somewhat older at the end of that period.38.2 As to the number of incidents, Mr Mably argues that the offending as described in the second interview was obviously much more serious.[39]He argues that in considering the central question of whether the claimant’s account in his second interview can be explained as a credible account that has developed over time or whether a jury would be likely to reject his evidence as unreliable, the CPS was clearly applying its own guidance. DISCUSSION[40]In my judgment, it was important for the CPS to take into account its own guidance about rape and serious sexual offences; the impact of such offences on children; and the effect of trauma on the presentation of a complaint. Such guidance particularly required Mr Slater to consider carefully whether the changes in the claimant’s account might be explicable on the basis that experience has shown that genuine complaints of this nature can develop over time. It is, however, clear from his careful decision that Mr Slater had such guidance well in mind. The fallacy in the claimant’s argument is to insist that, having done so, Mr Slater could only decide the evidential test in one direction. The guidance is valuable in that it reminds prosectors that they should take into account the warnings that a trial judge would give to a jury in order to combat the risk that they might otherwise make false assumptions as to how a child victim of serious sexual offences would behave in making their complaint. What the guidance does not do is mandate that the CPS must inevitably conclude that any inconsistencies can always be explained simply as the development of a credible and reliable complaint. Indeed, the guidance makes the point that the CPS must consider levels of inconsistency which, even with the benefit of a warning, are likely to prove a significant cause of concern to any jury.[41]In this case, the CPS properly recognised that the differences between the claimant’s initial account (that there were two incidents in two addresses when he had been about 7) and his final account (that there were numerous incidents in four different addresses that might have continued until he had been 9) would be a central issue at trial. The prosecution would obviously have been obliged to disclose the letter advising of the outcome of the first review under the VRR scheme since it would have the capacity to undermine the prosecution’s case. Mr Slater was right therefore to consider the likely defence argument that the claimant’s new account was not an honest and reliable development of his account but an attempt to address the CPS’s initial view that prosecution would not be in the public interest. Such argument cannot be dismissed as hopeless given:41.1 the unusual feature that the second account in this case was only given after the CPS had informed the claimant’s family that a prosecution would not be in the public interest in part because of the small number of alleged offences and the cousin’s young age at the time of the offending; and41.2 the fact that the greater number of offences alleged over a longer period of time in the second interview and the linked fact that the cousin could potentially be as much as two years older by the end of such offending would be likely to be material considerations to a revised public-interest assessment.[42]I reject the criticism that Mr Slater set up a false distinction between a development of the claimant’s account and inconsistencies:42.1 First, there were straightforward inconsistencies between the initial account that the abuse had only happened twice at two locations and the subsequent account of numerous assaults at four different locations.42.2 Secondly, it is clear that Mr Slater was considering whether the jury would regard it as an essentially reliable account that had developed over time as the claimant became more comfortable in discussing the abuse, or whether it would regard the differences in the accounts as problematic inconsistencies that undermined the claimant’s credibility and reliability. That is not a false distinction at all but was inevitably central to the CPS’s assessment of whether the evidential test was met.[43]I reject the argument that Mr Slater thereby fell into the error of applying the bookmaker’s approach. He did not make statistical predictions based on generalisations as to the experience of similar prosecutions but remained clearly focused on the actual evidence and the prospects of any prosecution in this case. He considered each piece of evidence separately and then considered the cumulative effect of all of the evidence in the case. Further, he considered the claimant’s explanation for not having disclosed all of the abuse in the first instance.[44]Having considered all of the evidence in the case and the relevant guidance, it was, in my judgment, properly open to the CPS to conclude that there was not a realistic prospect of conviction such that the evidential test was not met. There was no error of law and such decision was not perverse. Accordingly, I reject this ground. GROUND 2 THE ARGUMENT[45]Ms Kaufmann accepts that the CPS had to consider the potential impact on the jury of the fact that the claimant’s account had developed over time, but argues that the CPS erred in focusing on the credibility of the “new allegations” and failing to take a holistic view of the claimant’s credibility. A proper analysis would also take into account the factors that were capable of supporting the claimant’s credibility generally, such as his medical and school records, his consistency in material respects, the extent to which the claimant was able to recall relevant details in a manner consistent with trauma recollection, and his brother’s evidence which corroborated other sexualised and bullying aspects of the cousin’s behaviour.[46]Mr Mably responds that on the facts of this case it was obviously necessary to consider the credibility of the second interview, and that it was open to the CPS to conclude that some parts of his account were likely to be regarded as credible while others were not. DISCUSSION[47]I accept Ms Kaufmann’s argument that it was ultimately necessary to consider credibility holistically in order to determine whether there was a realistic prospect of conviction. I reject, however, her complaint that this did not happen:47.1 Mr Slater considered the second interview at pages 11-13 of the decision letter. He did not at that stage draw a definitive conclusion about credibility but explained the inconsistencies between the claimant’s accounts, and observed that the jury would find it difficult to understand why his position had changed and that any doubt would be likely to be resolved in favour of the suspect.47.2 At page 14, Mr Slater considered the brother’s evidence. He assured the reader that he had not considered the claimant’s evidence in “some king of illogical vacuum”. Rather these were parallel investigations and he had considered the evidence cumulatively.47.3 At pages 14-15 and 19, Mr Slater considered evidence from the mother, the aunt and from the claimant’s psychologist. He posed the question whether such evidence was capable of providing support for the claimant’s case and combatting the evidential difficulties identified.47.4 At pages 16-18, Mr Slater considered the uncle’s possible evidence, the alleged admissions and the cousin’s silence at trial. Again, such evidence was assessed by reference to its capacity to support the claimant’s allegations.47.5 It was only then that Mr Slater considered the cumulative effect of all of the evidence in the case.[48]Accordingly, I reject ground 2. GROUND 3 THE ARGUMENT[49]Ms Kaufmann argues that having decided that it was not in the interests of justice to proceed on the basis of the cousin’s alleged admission, the CPS irrationally dismissed such evidence as irrelevant to the evidential test. She submits that it was incoherent to assess the relevance of the admission by reference to the interests of justice test, and that the CPS was required to consider the evidential test on the basis of all of the evidence. Secondly, she argues that it was perverse to analyse the relevance of the evidence on the premise that the cousin’s account was entirely true or would comprise the entirety of the factual case presented by the prosecution at trial. Thirdly, she argues that credibility issues with the cousin’s account as relayed by his father appear to have been overlooked.[50]Mr Mably responds that the claimant’s argument mischaracterises the way in which the CPS approached the admissions. DISCUSSION[51]In my judgment, it is first necessary to understand what had apparently been admitted. There were three sources of evidence to consider:51.1 First, after the claimant’s parents raised his allegations with the uncle, the father received a call from his brother. In his statement, the father said that the allegation put to his brother was that the cousin had “orally assaulted” the claimant. His brother then rang back and said that the cousin had “admitted the allegation”. That was not, of course, direct evidence of the cousin’s alleged confession but hearsay evidence of it.51.2 Secondly, although the uncle had declined to make a witness statement, he had been required as a serving police officer to give his account as part of the investigation by Professional Standards. He then reported that the cousin told him that he had been playing “dares” with the claimant and the claimant’s brother. The cousin said that during that game he had kissed the claimant and the claimant had kissed his “privates”.51.3 Thirdly, the cousin had been interviewed on three occasions by the police but made no comment to the allegations put. The CPS therefore had to consider the possibly damaging effect of an adverse inference being left to the jury.[52]Taking the last point first, Mr Slater considered that an adverse inference from the cousin’s failure to give his account would provide limited assistance to the prosecution given that the cousin was young, of good character and acting under legal advice.[53]That therefore left the admissions. As to those, he concluded that from the father’s account it was unclear precisely what conduct was admitted. Given the reluctance of the uncle to make a statement or support a prosecution in this case, Mr Slater doubted whether the court would allow the prosecution to rely on his report of the admissions made. He then concluded:
“Even assuming that those ‘admissions’ would be admissible in a criminal trial, which in my judgment is not a foregone conclusion, my judgment was regretfully that those ‘admissions’ were not capable of amounting to offences which pass the Full Code Test. The suspect’s version of events was that the single episode happened just prior to comprehensive school, which would have made the suspect a maximum of 11 years old. Even were the incident capable of amounting technically to a sexual offence, my judgment is that prosecuting on the basis of the suspect’s admissions would not have been in the public interest. My judgment was that his ‘admissions’ disclosed the sort of activity better described as childish sexual experimentation rather than activity necessitating criminal justice system intervention.”
[54]In this passage Mr Slater considers both the evidential and public-interest tests:54.1 His doubts as to admissibility plainly go to the evidential test.54.2 Mis Kaufmann is right to identify that his further comment about the admissions not being in respect of offences that would pass the Full Code test addressed the public-interest element of the test. Further, I accept her submission that it would be irrational not to take all of the potentially admissible evidence (including the admissions) into account in considering the evidential stage of the test.[55]It is important, however, to read the whole decision letter. Taken in the round, I consider that the apparent admissions were properly considered as part of the potential evidence that could be placed before a jury in addressing the evidential test and that the CPS did not fall into the error that Ms Kaufmann identified. Mr Slater concluded that there was “only limited evidence, if any, of the suspect in fact ‘confessing’ to anything amounting to a criminal offence”. In my judgment, this conclusion was properly open to the CPS upon the entirety of the evidence:55.1 The father’s evidence was hearsay evidence of an admission apparently made to the uncle. His statement suggests that the allegation put to the uncle – and which was apparently admitted - was that the cousin had “orally assaulted” the Claimant. Mr Slater was accordingly entitled to conclude that the father’s evidence as to this admission was too vague to provide any practical evidential assistance to the prosecution. As he observed, the prosecution would not be able to say with any degree of clarity what exactly it was that the cousin was said to have admitted. Specifically, it is unclear whether the admission was as to kissing or to oral rape. Furthermore, the CPS was entitled to take the view that it was highly doubtful whether hearsay evidence of such a vague admission would be admitted into evidence.55.2 There was no statement from the uncle but his account to Professional Standards suggested that the cousin admitted kissing the claimant and that the claimant had then kissed his “privates”. If the cousin’s kiss was sexual (which was not made clear) that would amount to an admission of sexual assault upon or sexual activity with a child. The admission that the claimant had kissed the cousin’s “privates” did not extend to an admission that the cousin had assaulted the claimant or caused or encouraged him to engage in such sexual activity. Further, without the uncle’s cooperation, it is doubtful whether the account to Professional Standards, which was not prepared in accordance with s.9 of the Criminal Justice Act 1967, would have been admitted into evidence.55.3 In any event, after considering the evidence piecemeal, Mr Slater expressly considered the cumulative effect of the evidence in the case.[56]Accordingly, I reject ground 3. GROUND 4 THE ARGUMENT[57]Ms Kaufmann argues that the CPS erred in concluding that all outstanding reasonable lines of inquiry had been exhausted. Specifically, it should have required the police to obtain a statement from the uncle. Further, she argues that the CPS was wrong to conclude that he would not cooperate if required to do so and that his evidence would not have been material.[58]Mr Mably responds that the uncle had refused to cooperate and that the CPS was entitled to conclude that all reasonable lines of inquiry had been pursued. As to the second point, he argues that the CPS was entitled to conclude that any statement was likely to reflect the contents of the uncle’s report to Professional Standards. DISCUSSION[59]Mr Slater dealt with this issue in his decision letter:
“I know that you have criticised the police for not seeking a statement from the suspect’s father, given the apparent admissions made to him by the suspect. I can inform you that the police identified in the Occurrence Log that the suspect’s father, a serving police officer, was someone from whom a statement should be sought. There were repeated entries in the Occurrence Log to the effect that that statement needed be taken. I queried with the OIC why it was, given those entries, that no statement appeared on the file. The OIC confirmed that the suspect’s father was asked numerous times to make a statement. He was unwilling to provide one. He had already provided a report to Professional Standards (which I shall discuss below) and refused to provide a statement. In my judgment, the police properly exhausted this enquiry. People cannot be forced to make statements. The police tried to obtain the statement more than once, but the suspect’s father refused.”
[60]Ms Kaufmann is right to observe that serving police officers who fail to cooperate with a criminal investigation and who do not participate openly and professionally in line with the expectations of police officers when identified as a witness may find themselves in breach of their duty pursuant to Schedule 2 of the Police (Conduct) Regulations 2020. The officer’s professionalism and duty backed up by the possibility of disciplinary action were therefore matters that increased the prospects that the uncle might make a witness statement. That said, it is clear that the OIC made a number of attempts to obtain a statement from the uncle but he chose not to assist.[61]The threat of disciplinary action was very real in this case in that the claimant’s mother had already made a formal complaint in respect of the police’s failure to take a statement from her brother-in-law that led to the investigation by the police’s Professional Standards Department. No finding was made that the uncle had a disciplinary case to answer for either withholding information or for failing to support a prosecution. Indeed, the Independent Office of Police Conduct (which upheld the mother’s appeal against the first Professional Standards investigation) observed that it was reasonable to be mindful of the strong parental responsibility that the uncle would have felt as a father. Further, he had reported the matter to the police and made a statement in respect of the Professional Standards investigations in which he disclosed the admissions made by his son. And yet, he still refused to make a statement in the criminal investigation into his son.[62]In my judgment, after having discussed the issue further with the OIC, the CPS was entitled to take the view that all reasonable lines of inquiry had been exhausted and that the uncle was not going to provide a statement in the criminal investigation into his own son’s conduct. Further, Mr Slater was plainly entitled to assume that, had the uncle made a statement, it would have been consistent with the disclosure that he had made in his report to Professional Standards.[63]Accordingly, I reject ground 4. GROUND 5[64]Ground 5 is essentially parasitic upon the success of one or more of grounds 1-4. Standing back and considering this case in the round, I conclude that the CPS provided a carefully reasoned and full decision. It took into account relevant guidance, properly considered whether all reasonable lines of inquiry had been pursued, and analysed the evidence available in the case. Upon doing so, it was entitled to conclude that the evidential test was not met and to confirm the earlier decision not to charge the suspect in this case. That was, in my judgment, a lawful and rational decision that was amply sufficient to comply with the state’s obligations pursuant to Article 3. OUTCOME[65]For these reasons, I dismiss this claim for judicial review.