LYC, R (on the application of) v Director of Public Prosecutions [2026] EWHC 2778 (Admin)

[2026] EWHC 2778 (Admin)Case No AC-2026-BHM-000267
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/10/2026
Before
LORD JUSTICE HOLGATEMR JUSTICE WALL
Between
THE KING (on the application of LYC by his litigation friend LYM)ClaimantDIRECTOR OF PUBLIC PROSECUTIONSDefendantCANNOCK YOUTH COURTInterested Party
Jennifer Twite and Margo Munro Kerr (instructed by Mary Monson Solicitors) for ClaimantTimothy Cray KC (instructed by Crown Prosecution Service) for Defendant for The Interested Party did not appear and was not represented.Hearing Hearing date: 20 October 2026
Approved JudgmentThis judgment was handed down remotely at noon on 29 October 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

LORD JUSTICE HOLGATE AND MR JUSTICE WALL:

[1]The claimant LYC brings his application for leave to apply for judicial review by his mother, LYM, acting as his litigation friend. An order for anonymity was made on 15 July 2026. In addition, we refer to LYC’s sister as LYS and his friend and co-accused as ZFG.[2]On 25 April 2024 LYC was arrested for the rape of his sister contrary to s.5 of the Sexual Offences Act 2003 on 19 March 2024. At the time of the alleged offence the claimant was 11 and his sister 7. LYC is now 14.[3]On 10 October 2025 the Crown Prosecution Service (“CPS”) decided that LYC should be charged with the alleged rape and also with making an indecent photograph of her contrary to sections 1(1)(a) and 6 of the Protection of Children Act 1978. On 10 November 2025 a postal requisition was registered charging LYC with those two offences. LYC instructed his solicitors, Mary Monson, the following day.[4]On 17 February 2026 Mary Monson requested the CPS to carry out a detailed review of its decision to prosecute and to discontinue the prosecution. They submitted detailed representations prepared jointly with the Youth Justice Legal Centre. The representations were supported by a number of letters from social workers and other youth professionals who had been working with LYC and his sister, together with a report on LYC from Dr Nally, a forensic psychologist.[5]On 27 April 2026 the CPS replied by letter stating that after having carefully reviewed the representations submitted, it had decided to continue with the prosecution of LYC and ZFG. The letter did not contain any response to the representations which had been made.[6]On 18 May 2026 LYC lodged an application in the Cannock Youth Court to stay his prosecution on the ground that the prosecution was “an offence to the court’s sense of justice and propriety”. The application was opposed by the CPS and was heard by District Judge Wilkinson on 19 June 2026. On 23 June 2026 the judge issued his written reasons for refusing the application.[7]In the meantime, on 3 June 2026 LYC’s Solicitors had sent a pre-action protocol letter notifying the CPS of a proposed challenge to its decision to continue the prosecution on the grounds that it had failed to adhere to its own prosecutorial code and guidance and to take into account the representations which had been submitted. The letter asked to see the written record of the CPS’s reasons for its decision on 27 April 2026 and for a response by 17 June 2026.[8]On 17 June 2026 the CPS replied to the pre-action letter. At that stage it did not provide the contemporaneous record of its reasons for the decision being challenged. Instead, it relied upon a letter dated 17 June 2026 drafted by Nathan Rasiah KC. Although the letter was signed by Ian Crooks, a Senior Crown Prosecutor, the covering letter stated that it represented Mr Rasiah’s response to the pre-action letter from Mary Monson.[9]However, at the hearing before us, Mr Tim Cray KC stated that Mr Rasiah had taken no part in the decision-making process. As the claimant put it, his document was simply a post hoc justification of the CPS’s decision in April 2026. It is not suggested that it was based upon the contemporaneous record of the CPS’s reasons for its decision. Notwithstanding that Mr Rasiah appeared for the CPS in the Youth Court two days later to resist the application for a stay, the production of this “letter” was, to say the least, surprising, particularly in the absence of an explanation of its status at the time.[10]LYC issued a claim for judicial review on 9 July 2026 challenging the decision of the CPS on 27 April 2026 to continue with the prosecution. But the claim did not seek to challenge the decision of the District Judge refusing the abuse of process application.[11]On 2 October 2026 Sheldon J ordered that the application for permission be dealt with at a rolled-up hearing. Given that the trial in the Youth Court has been set for 6 November 2026, he also ordered expedition of that hearing. It took place before us on 20 October 2026.[12]In view of that order, the CPS decided to disclose the written record of the decision to continue the prosecution taken on 21 April 2026 and confirmed on 27 April (“the written record”). It did so by email dated 7 October 2026. That document was verified in a witness statement dated 19 October 2026 by Miss Jane Scofield, a Specialist Prosecutor in the Appeals and Review Unit.[13]On 21 April 2026 Ms Ravinder Dhillon, a Senior Crown Prosecutor, took the decision to continue the prosecution against LYC and also ZFG. She compiled the written record. It is largely in note form. Her decision was subject to the confirmation of the Chief Crown Prosecutor which was given on 27 April 2026. This followed several discussions involving the District Crown Prosecutor, the Senior District Crown Prosecutor and the Deputy Chief Crown Prosecutor. All agreed that it was in the public interest for the prosecution to continue.[14]We are grateful to Ms Jennifer Twite and Ms Margo Munro Kerr for the claimant and Mr Cray for the defendant for their written and oral submissions.

Procedural Matters

[15]In light of the disclosure of the written record, Ms Twite accepted at the hearing before us that ground 3 of the challenge, which had alleged a failure by the defendant to give reasons for its decision, fell away.[16]On 7 October 2026 the claimant applied to amend his claim to make the Youth Court a second defendant instead of an interested party. When it was pointed out that the claimant had not challenged any decision of the Youth Court, the claimant applied the next day to amend his Statement of Facts and Grounds so as to challenge the refusal of the District Judge to stay the prosecution of LYC as an abuse of process. This was based upon an additional ground 4.[17]On 16 October 2026 the claimant applied to amend his Statement of Facts and Grounds further by the addition of ground 5. In summary, this was based on three references in the written record to what was said to be an authority R v J [2024] EWCA Crim 3529. It turned out, and it is agreed, that this decision does not exist.The application to amend was made in response to a witness statement by Ms Dhillon dated 15 October 2026. She said that the citation had been an error and that she had been referring instead to the decision of the House of Lords in R v JTB [2009] UKHL 20; [2009] 1 AC 1310. The proposed ground 5 contends that the legal propositions which Ms Dhillon purported to derive could not be found in that case, are contrary to CPS guidance and are wrong in law.[18]We agree that the decision whether to amend the Youth Court’s status in this litigation to that of a defendant depends upon whether there is a challenge to the decision of that court. Accordingly, the fate of that amendment depends upon whether permission should be granted to amend the Statement of Facts and Grounds to add ground 4.[19]The issue of whether we should permit the amendments to include grounds 4 and 5 in this challenge depends in part upon whether the grounds of challenge pleaded are arguable. Given that the claim is being dealt with in a rolled-up hearing, we said at the hearing that both grounds 4 and 5 would be heard de bene esse and all applications to amend would be determined in our judgment.

The substantive issues

[20]Ground 1 alleges that the defendant failed to properly “consult” with other youth professionals in breach of its Tameside duty to make “reasonable inquiries”. It thereby failed to take their views into account.[21]During the hearing Ms Twite accepted that, as pleaded, ground 1 conflated two entirely different public law concepts. Where a duty to consult arises the consulting party must comply with the well-known “Gunning” principles endorsed by the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at [108].[22]By contrast, the duty of inquiry does not depend upon a decision-maker being under a duty to consult and does not involve the requirements set out in Coughlan. The duty of inquiry stems from Lord Diplock’s statement in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at p.1065. When referring to the public law obligation to take into account material considerations, Lord Diplock said that the question for the court is whether on a true reading of the relevant legal framework, the decision-maker asked himself the right question and took reasonable steps to acquaint himself with the relevant information to enable him to answer it. The Tameside duty does not, for example, require a decision-maker to provide third parties with information on which a decision is proposed to be based to enable them to provide consultation responses thereto.[23]Ms Twite stated that ground 1 relates solely to the Tameside duty to make reasonable inquiries. The claimant does not allege that the CPS was under any duty to consult. Similarly references to consultation in the evidence in support of the claim should be understood in the same way.[24]In support of the claim, LYC relies upon a number of witness statements from youth professionals, produced in June to August 2026. Several of those statements were made by persons who had provided letters enclosed with the letter from LYC’s Solicitor in February 2026 requesting the CPS to review its decision to prosecute. However, by definition, those witness statements were not before the defendant when it made its decision on 27 April 2026 to continue the prosecution. Ordinarily such material is not admissible in a claim for judicial review challenging that decision, save in the limited circumstances identified in Law Society v Lord Chancellor [2018] EWHC 2094 (Admin); [2019] 1 WLR 1649 at [37]-[42]. We will revert to this subject when we address ground 1 below.[25]As the claimant accepts, ground 2 largely overlaps ground 1. It is submitted that the defendant’s guidance specifically sets out the need “to consult” with children’s services, the victim and the family when considering whether to undertake a prosecution of this nature. The claimant relies on the arguments advanced under ground 1 as amounting to a failure to follow that guidance or policy. In addition, counsel submits that the defendant failed to follow its guidance in a number of respects.[26]In the amendment to the Statement of Facts and Grounds the claimant put ground 4 in two ways:(1) The District Judge erred in law in deciding that he had no jurisdiction to stay the case because he had been informed that the Crown Prosecutor had considered the relevant material and applied the appropriate public interest test. Instead, he had jurisdiction to stay the case where “public law errors had been made in the decision” to continue the prosecution, that is there had been “a failure to have due regard to CPS guidance” (R v AAD, AAH and AAJ [2022] EWCA Crim 106; [2022] 1 WLR 4042 at 1141(4));(2) The District Judge erred in law in finding that the defendant had considered the relevant material and had due regard to the CPS guidance for the reasons set out under grounds 1 and 2.[27]We have already summarised ground 5 in [17] above.

Statutory provisions

[28]Part III of the Children and Young Persons Act 1933 deals with the “protection of children and young persons in relation to criminal and summary proceedings”. Section 44 provides:
“Principles to be observed by all Courts in dealing with Children and Young Persons
44 General considerations.
(1) Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.
(2) …”
[29]Part III of the Crime and Disorder Act 1998 deals with the youth justice system as part of the criminal justice system. Section 37 provides:
“37. — Aim of the youth justice system.
(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.
(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim.”
[30]Part I of the Prosecution of Offences Act 1985 established the CPS headed by the Director of Public Prosecutions. Section 10(1) provides:
“10 Guidelines for Crown Prosecutors.
(1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them—
(a) in determining, in any case— (i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or (ii) what charges should be preferred; and(b) in considering, in any case, representations to be made by them to any magistrates’ court about the mode of trial suitable for that case.
(2) …”
Section 10(3) requires the DPP to set out in his annual reports to the Attorney General (under s.9 of the Act) both the Code when issued and any subsequent amendment made under s.10(2). The Attorney General must lay those reports before Parliament (s.9(2)).[31]The parties have agreed a helpful note on the law relating to prosecution guidance relevant in this case. “The Code for Crown Prosecutors” was issued by the DPP in October 2018 under s.10 of the 1985 Act.[32]Paragraph 2.10 of the Code refers to other policies and guidance issued by the CPS on behalf of the DPP. It states that prosecutors must comply with such policies and guidance unless there are exceptional circumstances. The defendant accepts that it did not rely upon any “exceptional circumstances” in this case. The two additional documents relevant to the claim are:• CPS guidance on Rape and Sexual Offences (updated March 2025) (“RASSO”)• CPS guidance on Children as Suspects and Defendants (March 2025)[33]In R (Joseph) v Director of Public Prosecutions [2022] EWHC 131 (Admin), [2022] 1 Cr. App. R. 17 at [23] the Divisional Court stated:
“The DPP must therefore have regard to and apply the Code and relevant guidance in making prosecutorial decisions unless there is good reason not to do so.”
However, where the court is dealing with well-established and familiar CPS guidance, particularly where the guidance is of obvious relevance, the decision-maker is not to be treated as having failed to have regard to it merely because they did not specifically identify the policies they had applied (Joseph at [25]).The Code for Crown Prosecutors

The Code and CPS guidance

[34]The general principle is that a prosecution should not be brought unless two tests are met: the evidential test and the public interest test (4.2). The evidential test requires there to be sufficient evidence to provide a reasonable prospect of securing a conviction (4.6). The present challenge does not involve the application of that test.[35]A prosecution will usually take place where the evidential test is met, unless “the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour” (4.10). That is a balancing exercise which depends upon the judgment of the prosecutor.[36]Paragraph 4.14 requires the prosecutor to consider seven issues, including the following:(a) How serious is the offence committed? This includes the suspect’s culpability and the harm caused (see also (b) and (c));(b) What is the level of culpability of the suspect? This includes whether the offending was or is likely to be continued, repeated or escalated and the suspect’s age and maturity (see also (d));(c) What are the circumstances of and the harm caused to the victim? This includes the following:
“Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.
However, the CPS does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.”
[37]We set out the whole of para.4.14(d):
“d) What was the suspect’s age and maturity at the time of the offence?
• . The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect if they are a child or young person under 18.• . The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.• . Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people. Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.• . Prosecutors should consider the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.• . As a starting point, the younger the suspect, the less likely it is that a prosecution is required.• . However, there may be circumstances which mean that, notwithstanding the fact that the suspect is under 18 or lacks maturity, a prosecution is in the public interest. These include where: i. the offence committed is serious; ii. the suspect’s past record suggests that there are no suitable alternatives to prosecution; and iii. the absence of an admission means that out-of-court disposals that might have addressed the offending behaviour are not available.”[38]Paragraph 4.14(f) requires a prosecutor to consider whether prosecution would be proportionate to the outcome, but by itself this factor should not be determinative of the public interest.[39]The CPS’s guidance on “Children as Suspects and Defendants” is based on the “Child First” principle:
“…. ‘Child First’ justice which is the belief that children coming to the attention of the Youth Justice System (YJS) are seen as ‘children’ first and ‘offenders’ second. The primary focus of this approach is prevention, diversion, and a clear commitment to developing interventions to avoid unnecessary prosecutions and criminalisation of children.”
Page 7 of the guidance refers to a collaborative approach within the criminal justice system. In relation to public interest considerations the guidance states:
“It is essential in all cases involving children to ensure that all matters relevant to the public interest decision are clearly identified, considered, and balanced. A note should be made of the factors identified but rejected or outweighed by other considerations. The decision to prosecute must only be taken after a full review of the case and the background information, including information concerning the suspect provided by the Youth Justice Service, police, or local authority. Failure to show that the Code and the legal guidance has been followed and properly applied to all the information on the case may result in the decision to prosecute being quashed.”
Page 10 of the guidance refers to the relevance of physical and emotional abuse against a child and exposure to domestic violence.[40]The 2025 edition of RASSO states at p.1:
“When prosecuting youths who have committed sexual offences prosecutors must have regard to the to the principal aim of the youth justice system which is to prevent offending by children and young persons but also to the welfare of the offender. The overriding purpose of the Sexual Offences Act 2003 is to protect children. It was not Parliament’s intention to punish children unnecessarily or for the criminal law to intervene where it was wholly inappropriate.
If an allegation of any sexual abuse committed by a youth offender has been fully investigated and there is sufficient evidence to justify instituting proceedings, the balance of the public interest must always be carefully considered before any prosecution is commenced. Positive action may need to be taken at an early stage of offending of this type. Although a youth caution or youth conditional caution may provide an acceptable alternative in some cases, in reaching any decision, the police and the CPS will have to take into account fully the view of other agencies involved in the case, as detailed below.
Prosecutors are reminded of the need to consider all the circumstances of the offence and the youth and to apply all relevant CPS polices and guidance before reaching a decision to prosecute.”
RASSO states at p.2:
“Prosecutors should also obtain and consider:
• . The views of the Local Authority Children’s and Young Persons Services• . If one has already been completed, an assessment or report by the Local Authority or Young Offenders services such as AIM (Assessment, Intervention and Moving on)• . Background information and history of similar conduct by the parties• . The views expressed by the victim and the views of the families of all parties• . Information about the relationship between the parties and the consequences for the victim of the decision whether or not to prosecute.”RASSO states at p.3:
“There is a fine line between sexual experimentation and offending and in general children under 13 should not be criminalised for sexual behaviour in the absence of coercion, exploitation or abuse of trust.
…
Careful regard should be had to:
• . The relative ages of both parties• . The existence and nature of any relationship• . The sexual and emotional maturity of both parties and any emotional or physical effects as a result of the conduct• . Whether the child under 13 freely consented (even though in law this is not a defence) or a genuine mistake as to her age was in fact made”

Factual background

[41]LYC says that his father was physically abusive to both his mother and himself. He would shout at him and beat him for relatively minor matters. He also belittled the claimant telling him that he was fat and no good. It is said that because of the domineering and abusive behaviour of his father, LYC’s had a compliant nature.[42]Nevertheless, the claimant performed well at school both academically and at sports. He had a keen interest in and particular talent for football.[43]On April 2023 the relationship between the parents broke down and LYM left her husband taking her two children with her. On 12 April 2024 the Family Court ordered that she have full custody LYC and LYS.[44]In September 2023 the claimant and ZFG moved to secondary school. They were in the same year at school but ZFG was slightly older.[45]The police investigation which followed the incident on 19 March 2024 revealed a downloaded video on ZFG’s phone showing LYC performing oral sex on ZFG and photographs of LYC’s penis sent to ZFG’s phone.[46]On 19 March 2024 ZFG asked the claimant to send him a video of the claimant masturbating. He did so. ZFG then asked LYC to send a video of his sister sucking his penis. The claimant initially said no several times and “I’ll suck urs tmrr”. ZFG said “i’ll do u a deal u can put ur dick in my bum if u manage to get her to do it”. LYC said “Alr” (meaning “alright”) and sent a video of LYS with his penis in her mouth.[47]On 24 April 2024 ZFG was with a number of other boys at a youth club. They all attended the same school. One of the other boys showed the group the video of 19 March 2024 on his phone and discussed its contents. This was overheard by the adult in charge and reported to the Assistant Headteacher at the school, who referred it to the safeguarding officer. On 25 April 2024 she spoke with the boys involved and also the claimant, confiscated their phones, and called the police who viewed the video of 19 March 2024 on the phone of another boy.[48]LYC was then arrested. He was interviewed in the presence of a solicitor and answered no comment. He was bailed to the address of another family member, his mother’s cousin, with conditions not to contact LYS or to have unsupervised contact with anyone under the age of 10.[49]LYC lived at the address of his mother’s cousin for over a year. His bail conditions prohibited him from attending school. No alternative arrangements were put in place. The conditions also prevented him from contacting his sister. This separation from her brother greatly upset LYS and both her school and professionals had concerns about her welfare. The claimant saw his mother about twice a week during this time. His football team refused to let him play because of the incident, resulting in him being further isolated.[50]Social services decided that play therapy should be provided for LYS. She was given the opportunity to make disclosures about the incident with her brother, but she did not do so. The youth professionals involved with LYS were primarily concerned about the impact on her of separation from her brother. The bail conditions were eventually varied to allow LYS to have supervised phone contact with LYC and then supervised face to face contact. Her mood significantly improved when she was allowed to see her brother.[51]Jade Chapman, LYC’s social worker, also described adverse effects on his emotional wellbeing as a result of separation from family, school, football club and church. But in September 2024 the bail conditions were altered so as to allow LYC to attend a new school where he performed well academically. In January 2025 a psychological assessment was carried out on both LYC and LYS. LYC began therapy with Dr Casey Gordon. The claimant’s new social worker, Ms Charlotte Clarke, has said that LYC engaged fully with therapeutic support and intervention aimed at promoting understanding, reflection and personal development. When care proceedings in the Family Court concluded, LYC was allowed to return to his mother’s house on 28 July 2025. His sister was delighted that her brother was back in the family and there was a marked improvement in her behaviour and mood.[52]The claimant’s evidence is that before he was charged on 10 November 2025 neither the CPS nor the police contacted social workers, or the Youth Justice Service or other youth professionals who had been involved in the case to obtain information and their views in accordance with CPS guidance. The defendant has not filed a witness statement in response to the claim. It has not sought to justify its apparent failure at that stage to follow the Code and CPS guidance.[53]On 11 December 2025 LYC made his first appearance in the Youth Court. He did not enter a plea. His case was adjourned by the District Judge to enable the defence to make representations to the CPS that the prosecution should not be continued and to meet a request by the Youth Justice Service team that an AIM report be prepared. An “Assessment, Intervention and Moving on” report is used by the Youth Justice Service and other professionals to evaluate children who have shown “harmful sexual behaviour”. As the District Judge said, an AIM report is normally not prepared unless and until a child is convicted because it is intended to assist the court in sentencing. Here it was considered that such a report would assist the CPS in deciding whether to continue with the prosecution as part of its review of LYC’s case.[54]On 17 February 2026 Mary Monson sent to the CPS what they described as “detailed” representations in support of the request that the prosecution be discontinued. That letter was accompanied by other letters from:• Jade Chapman, social worker, 16 January 2025• Charlotte Clarke, advanced social worker 28 November 2025• Casey Gordon, psychological-traumatologist, 2 December 2025• Nicola Bull, youth justice worker, 28 November 2025• Stephen Smith of CAFCASS, LYC’s guardian, 9 December 2025.The solicitors also provided the report by Dr Nally. An AIM report by Nicola Bull and Vicky Ward, dated 13 February 2026, was uploaded to the Common Platform. The Solicitor’s letter and supporting documents comprised some 70 pages.[55]The Solicitor’s letter said that the views of the agencies working with LYC had not been properly obtained by the CPS, an AIM report had not been prepared and the Child Information Form had not been updated by the police and did not reflect the views of those agencies. The letter was therefore sent to provide that information. It referred to the decision in R (E, S and R) v Director of Public Prosecutions [2011] EWHC 1465 (Admin) in which the Divisional Court had quashed the decision to prosecute a child for allegations of sexual abuse against younger siblings.[56]LYC’s Solicitor said that while the body of the document would contain the detailed reasons in support of the request, she wished to highlight “the following key areas”:
“• [LYC] is himself a victim of child sexual abuse.
• The act which these charges relate to was a direct consequence of [LYC]’s sexual exploitation by another child.
• [LYC] is recognised as a vulnerable child by Social Services who initially intervened during private law proceedings.
• [LYC] is of previous and subsequent good character.
• The facts of the incident and the above vulnerabilities suggest that the balance of power in this incident is not typical of an offence of this nature.
• [LYC] is engaging well with Social Services and therapy.
• The Youth Justice Services (“YJS”) and Children’s Social Care view is that [LYC] presents a minimal risk and should not be criminalised.
• If [LYC] receives a criminal conviction or caution in respect of these offences, he will be subject to notification requirements which we submit would have a disproportionate impact upon his future; and
• If [LYC] receives a criminal conviction in respect of these offences the record will appear on all future DBS checks since these offences will never be filtered. As above, we are concerned that this would be disproportionately damaging to [LYC]’s prospects.”
The letter then referenced 18 policy documents and legislative provisions. It went on to address “the following areas in further detail”:
“1. Background to [LYC] and the allegation
2. Principal Aim of the Youth Justice System
3. Guidance on children and sexual offences
4. Considering the views of professionals
5. Reoffending
6. Effects of a conviction
7. Decision-making process
8. Conclusion”
[57]The Solicitor’s letter set out the respects in which it was alleged that there had been a failure to follow the relevant guidance. Particular criticism was levelled at the police for failing to provide adequate information on the views of the agencies, especially their consistent opinion that the approach should be based on safeguarding and not the criminal justice system. The letter explained why it had been judged that LYC posed a low risk of reoffending and that he had been allowed to return to his mother’s home. It indicated the harmful effects that a prosecution and conviction would have on LYC and also his sister.[58]The Solicitor’s letter specifically addressed paras.4.14(b), (c), (d) and (f) of the Code for Crown Prosecutors.[59]Under sub-para. 4.14(b) the letter said that LYC had been exploited and had therefore been a victim.[60]Under sub-para. 4.14(c) the Solicitor’s letter said:
“Part 4.14(c) requires the reviewing prosecutor to consider the circumstances of, and harm caused to the victim. This includes taking into account the views expressed by the victim and their family. Clearly, [LYC]’s sister was greatly harmed in the commission of this offence. However, it is important that the harm caused to her by the criminal investigation and process is also taken into account. [LYC]’s sister clearly advocated for her brother to return to the family home when he was prevented from living with her and does not support this prosecution. [LYC]’s mother is supporting her daughter in this regard. She has clearly supported Children’s Social Care to provide both children with therapy and aided their engagement. She is keen to avoid a criminal justice response and for the aim to be safeguarding and rehabilitating both her children.”
Here and elsewhere in the bundle of representations it was made clear to the CPS that LYC’s [mother] supported the points that were being made. We also note that the author recognised that LYS had been “greatly harmed by the commission of this offence”. It was in that context that the letter added that the harm to her through the criminal investigation and proceedings against LYC should also be “taken into account”.[61]The Solicitor’s letter dealt with para.4.14(f) of the Code as follows:
“Part 4.14(f) requires decision making prosecutors to consider whether prosecution is proportionate to the likely outcome. If [LYC] were to be convicted and sentenced in respect of this matter, the most likely outcome would be a Referral Order setting out a programme of interventions of the type that he is already engaging with, we would therefore submit that there is little benefit from a prosecution here. As highlighted above, a prosecution is not required for public protection reasons because [LYC] has been assessed as presenting a low risk of future offending. Further, [LYC] has been engaging well with all professionals. There is no doubt that he will continue to do so in the future.”
Overleaf the letter stated:
“[LYC] has already undertaken some of the intervention he would receive under either a Referral Order or Youth Caution and is now deemed by professionals to pose a low risk of future harm to others.”
But in her letter, the therapist, Ms Casey Gordon, stated that the assessment that LYC was unlikely to pose a risk to others depended upon proper supervision and ongoing therapeutic support. She saw the need for further intervention rather than punitive measures. It is therefore relevant that the Solicitors saw the most likely outcome of a prosecution as being a youth referral order with a programme of interventions, and not detention.

Grounds 1 and 2

[62]It is convenient to take grounds 1 and 2 together because of the very substantial overlap between them.[63]A great many authorities were cited on the limited availability of judicial review to challenge decisions to prosecute, the established view that such challenges should be brought as an application to stay the prosecution as an abuse of process and the grounds upon which either procedure may be founded.[64]Certain points are clear from case law. Only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator. This is because firstly, the powers are entrusted to the relevant officers and no one else. Secondly, the polycentric character of official decision-making in such matters involves 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 courts to assess their merits (Lord Bingham in R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2008] UKHL 60; [2009] AC 756 at [30]-[32]).[65]In the same vein, Sir John Thomas P (as he then was) said this in L v Director of Public Prosecutions [2013] EWHC 1752 at [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.”
The reference to “a failure to follow policy” is to be understood in the sense explained in Joseph (see [33] above). At [43] Thomas P added:
“As it is of the essence of the decisions to prosecute that there is a significant margin of discretion given to the prosecutor, it can be well understood why two prosecutors might differ. That, therefore, underlines the great importance and essential contribution that the Director has made by putting in place this system of review. In circumstances such as that pertaining to difficult decisions on the public interest, it is right and proper that there should be is review of what are very difficult decisions. But I say that by way of underlining the importance of the new procedure for review that is in place, and also as an encouragement for those to use that procedure, rather than resort to this court, because decisions can be made so much more quickly, so much more easily and, above all, in conformity with the proper apportionment of powers under our constitution.”
In the present case there has been a review in which several senior officials of the CPS considered the application of the public interest test.[66]This approach is reinforced by the availability to a defendant of the abuse of process jurisdiction in the criminal courts. The courts strongly discourage the conduct of satellite litigation by way of judicial review (see R (Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin) at [45]-[47]).[67]Fortunately, it is unnecessary for us to delve into the body of case law provided to the court. Instead, we can and should focus on two cases upon which Ms Twite placed particular reliance. The defendant accepts that the ratio of those cases is still good law.[68]In R v Chief Constable of Kent ex parte L and R v Director of Public Prosecutions ex parte B [1993] 1 All E.R. 756 the Divisional Court dealt with two challenges by judicial review brought by juveniles to decisions to prosecute them. At p.770d Watkins LJ said:
“I have come to the conclusion that, in respect of juveniles, the discretion of the CPS 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 Director of Public Prosecutions evolved in the public interest, for example the policy of cautioning juveniles, a policy which the CPS are bound to apply, where appropriate, to the exercise of their discretion to continue or discontinue criminal proceedings. But I envisage that it will be only rarely that a defendant could succeed in showing that a decision was fatally flawed in such a manner as that.”
A little further on he clarified the principle he was laying down as follows:
“I find it very difficult to envisage, with regard to that policy, a circumstance, fraud or dishonesty apart possibly, which would allow of a challenge to a decision to prosecute or to continue proceedings unless it could be demonstrated, in the case of a juvenile, that there had been either a total disregard of the policy or, contrary to it, a lack of inquiry into circumstances and background of that person, previous offences and general character and so on, by the prosecutor and later by the CPS. But here too I envisage the possibility of showing that such disregard has happened as unlikely. Therefore, although the CPS decision may in principle be reviewed, in practice it is rarely likely to be successfully reviewed.”
Here, the “lack of inquiry” refers to a Tameside obligation, and therefore relates to ground 1 in the present case. Although Watkins LJ confined this principle to juveniles at that stage, it is broadly in line with the formulation of Sir John Thomas P in L v DPP (see [65] above).[69]Some of the factual background in R (E, S and R) v Director of Public Prosecutions [2011] EWHC 1465 (Admin); [2012] 1 Cr. App. R. 6 was not dissimilar to the present case. It was alleged that E, when she was 12, had engaged in sexual activities with her sisters S and R aged 3 and 2. A joint report by a multi-agency group (which included the local authority, the youth offending team and the mental health service) was provided to the CPS. It concluded that none of the siblings could be therapeutically supported while a prosecution was pursued, the likely delay in providing such support would be both great and harmful to their recovery, and such work was essential for helping to assess and minimize any potential future risk posed by E to others [58]. The decision of the CPS not to discontinue the prosecution made no reference to the need for S and R for therapy and the harm to them from delay, as well as the need for therapy in E’s case and the consequences of delay [59]. The decision did not engage at all with the report [60].[70]The reason why the Divisional Court quashed the decision to prosecute in that case appears at [61]:
“Put in a nutshell, what is said is that, reading the decision letter of August 11, 2010, and having regard to the key parts of the guidance which I have summarised in [57] above, it is quite impossible to know whether the Crown Prosecutor simply failed to consider the views of the strategy group as I have summarised them in [58], or, having considered them, decided they were irrelevant, or, having accepted that they were relevant, rejected the various points being made by the strategy group, or, having accepted the various points the group had made, considered that they were nonetheless outweighed by other factors.”
Ms Twite sought to argue that the same reasoning applied to the decision in the present case.[71]On the quality of the reasoning to be expected in a decision to prosecute, Munby LJ said this at [62]:
“I accept of course that a decision such as this is to be read in a broad and common sense way, applying a fair and sensible view to what the decision maker has said. I readily acknowledge that, as Lord Hoffmann pointed out in Piglowska v Piglowski [1999] 1 W.L.R. 1360 at 1372, reasons should be read on the assumption that, unless she has demonstrated the contrary, the decision maker knew how she should perform her functions and which matters she should take into account. And I have very much in mind his warning that an appellate court—and the same must also go for this court—must “resist the temptation to subvert the principle that they should not substitute their own discretion for that of the [decision maker] by a narrow textual analysis which enables them to claim that he misdirected himself”. But the fact, in my judgment, is that the errors here—and we are not of course concerned with only a single error—are patent on the face of the decision letter.”
[72]Similarly in R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin) Lord Burnett LCJ said at [46]:
“(1)…
(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.”
[73]On the Tameside duty to inquire Laws LJ set out the approach that the court must take in R (Khatun) v London Borough Council [2005] QB 37 at [35]:
“… it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council, Ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into Issues of priority need and intentional homelessness. Schiemann J said, at p 309:
"In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient."
This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council, Ex p Bayani (1990) 22 HLR 406, which was concerned with the authority's duty of inquiry in a homelessness case. Neill LJ said, at p 415:
"The court should not intervene merely because It considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made."”
In other words the only permissible basis of challenge is irrationality.[74]The claimant does not allege that the decision to continue with the prosecution in this case was in itself irrational. It is not contended that no reasonable prosecutor, applying the relevant guidance, could have decided to continue with the prosecution in the circumstances of this case.[75]The written record is largely expressed in note form but its content is sufficiently clear. The document identified the guidance documents and policies which were applied, namely the Code for Crown Prosecutors, “the Full Code test”, RASSO and CPS’s youth justice guidance.[76]The written record said that the principal issues were to consider the representations received, to review whether prosecution was required in the public interest and the potential for judicial review. The record then explained why the evidential test was satisfied, as to which no issue arises. The author also referred to the change in legislative policy introduced by s.34 of the Crime and Disorder Act 1998 (which abolished the rebuttable presumption that a child under 14 is doli incapax) so that there was no bar to prosecution on the ground of LYC’s age at the time of the alleged offence.[77]The fourth section of the written record addressed the public interest test, as a “child specific analysis”. The document summarised factors against prosecution:
“I have approached the public interest stage on the basis that prosecuting a child, particularly of this age, is a serious step and ordinarily requires strong justification.
(a) Factors Tending Against Prosecution

I have given substantial weight to the following:

• the defendant’s young age (11/12)
• their status as a child, not a “mini adult”
• the risk of criminalisation at an early stage
• the Local Authority’s safeguarding responsibilities and proposals
• Defence representations.
• the general CPS presumption in favour of diversion from court for children”
The reference to “defence representations” covered a number of matters which were dealt with later on in the document. Plainly those matters were taken into account by the defendant.

I have given substantial weight to the following:

[78]Then the written record summarised factors in favour of prosecution:
“(b) Factors Tending in Favour of Prosecution
However, I have concluded that the public interest does require a prosecution in this case due to the following compelling factors:
1. Seriousness of the offence
The offence involves significant harm and risk, placing it at a level where prosecutorial intervention is justified notwithstanding the defendant’s age.
2. Impact

Serious impact on victim

3. Inadequacy of proposed alternatives
I have carefully evaluated the Local Authority’s proposed interventions. While well intended, I am not satisfied that they provide a sufficient response to:
• the seriousness of the conduct
• the need for accountability
• the protection of others
4. Need for a formal response
In these circumstances, involvement of the youth court is proportionate and necessary to mark the gravity of the behaviour, ensure structured oversight, and enable appropriate interventions under court authority.
I have considered the potential impact of prosecution on the defendant’s welfare and private life. I am satisfied that:
• prosecution is a proportionate response.
• the youth court is best placed to ensure proceedings are adapted to the child’s age and needs.
• the welfare considerations, while significant, do not outweigh the public interest in a prosecution in this case.”

Serious impact on victim

[79]It is important to note that the decision-maker took into account the representations in February 2026 on factors pointing against prosecution and gave the welfare considerations “substantial weight”. She then evaluated the factors in favour of prosecution.[80]There was agreement that further interventions are required for LYC. The decision-maker made it plain when deciding the outcome of the balance between factors for and against prosecution she disagreed with the view of the youth professionals that those further interventions should continue to be provided by local agencies. She considered that, in the circumstances of this case, they should be under the control of the court’s authority. Where she did not accept the views of the Solicitors and youth professionals on the ultimate handling of the case, she explained her disagreement sufficiently clearly.[81]The decision-maker decided that, balancing factors in favour of prosecution and factors pointing against, the former had overriding weight. Indeed, she said that “the public interest in prosecution is exceptionally strong” even though the welfare considerations carried “significant weight”. Accordingly, it is plain that, contrary to the claimant’s submission (see [70] above), the defendant’s reasoning is not flawed on the basis set out in E, S and R at [61]. Furthermore, as we have said, it is not claimed that the judgments reached in striking that balance were irrational.[82]The written record then set out an assessment of the risks of judicial review. This included consideration of irrationality and the application of Arts.3, 6 and 8 of the European Convention of Human Rights.[83]The sixth section of the document summarised the views and information set out in documents accompanying the Solicitor’s letter dated 17 February 2026 and then the representations made in that letter. The decision-maker also summarised the AIM report as follows:
“The AIM assessment states any future risk of re-offending and harmful sexualised behaviour in respect of LYC is low.
The sexualised behaviour was not part of a pattern of behaviour and there has been no indication in the professional reports or from his therapist that there are ongoing thoughts and beliefs that would give rise to a concern that the behaviours could be repeated. This considers the context of the behaviours; the journey LYC took to the behaviours and the steps taken to address the concerns whilst the matters have been under investigation by the police. There are no indications that the support in place for LYC will end and that he can continue his therapeutic pathway with a therapist that he has built a trusting relationship with.”
It is plain beyond argument that the decision-maker did take all those matters into account when she reached her conclusions on the public interest test.[84]Ms Dhillon then drew the various strands of her review together in a concluding section of the record. She reiterated that the balance (described, for example, in E, S and R at [66]) came down in favour of a prosecution, despite the welfare considerations.[85]It is logical next to consider the allegation that the CPS was not entitled to reach that conclusion because it had failed beforehand to comply with the Tameside duty to make reasonable inquiries to obtain relevant information. This issue had to be addressed in context.[86]First, CPS guidance required the prosecutor to obtain and consider the views of the relevant agencies and of the victim and families of all parties and to consider the best interests and welfare of LYC, along with the other factors referred to above. Second, the only material before the court which shows what was known to the defendant by the time of the review decision are the representations and information sent by LYC’s Solicitor to the CPS on 17 February 2026 and the written record. In determining whether the Tameside obligation was satisfied, it is of no consequence that the material before the CPS was sent voluntarily by LYC’s Solicitor rather than in response to a request made by CPS. The question is whether as a matter of substance the material which the CPS had was sufficient for the purposes of Lord Diplock’s principle. Third, the test is whether no reasonable prosecutor could have been satisfied that it possessed the information necessary for the decision on whether to continue the prosecution, not for example, whether further inquiries would have been sensible or desirable. The test is not satisfied if some authorities might have thought that they should ask for more information or make further inquiries about a particular subject. Fourth, the rationality test must be applied on the basis of the material which was in fact before the decision-maker.[87]The representations made in February 2026 suggested that an AIM assessment should be provided to the CPS before its review decision was taken. That report was prepared subsequently and taken into account by the CPS. No one suggested in the material supplied to the CPS that further inquiries ought to be made as a result of the AIM report or otherwise. The representations made to the CPS were detailed and comprehensive. It has not been suggested to us that, apart from the AIM report, the representations had omitted something material without which the CPS could not rationally reach a decision on whether to continue the prosecution.[88]Ms Twite pointed out that the defendant did not receive the views of the victim or her family, in particular her mother. It is true that they did not have a statement from either LYS or LYM, but the representations made it clear that LYS had not spoken about the incident, but had said that she wanted her brother to live with her and her mother. As for LYM, the representations also made it plain that she had been exemplary in caring for her children and that she fully supported the approach put forward by the youth professionals to the CPS. Given the comprehensive material before the CPS, we do not consider that it was irrational for the defendant not to contact the mother to obtain her views and those of her daughter.[89]At this point we consider the witness statements of LYM, Liam Kotrie (LYC’s Solicitor), Nicola Bull, Charlotte Clarke, Casey Gordon, Isabel Walker (headteacher of the primary school attended by LYC and LYS), and Ruth McGregor-Hamman (explaining the regimes for notifications and record checks for convicted sex offenders). In addition, we also give permission for the claimant to rely upon the second witness statement of Nicola Bull.[90]As we pointed out in [24] above, none of this evidence was before the defendant at the time of the decision under challenge. However, Ms Twite submits that it should be received as evidence of what information the CPS could or would have obtained if they had made inquiries so as to establish, or help support, a breach of the Tameside duty.[91]We consider that this approach is wrong in principle. True enough, if inquiries had been made that could have yielded more information. But that in itself would not establish that the defendant acted irrationally by not making those inquiries. The claimant’s approach conflicts with the established principle that the issue of whether there has been compliance with the Tameside duty involves the application of the rationality test to the material which was actually in the defendant’s possession.[92]Here again, it is important not to confuse the Tameside duty with a duty to consult. Whereas the latter may arise from a duty to act fairly, the former does not (see R (Plantagenet Alliance Limited) v Secretary of State for Justice [2014] EWHC 1662 (Admin) at [100(5)]). So in the present case the witness statements are not admissible to suggest that there are matters which the authors have not communicated to the CPS because of a breach of duty to consult.[93]Notwithstanding these difficulties in the claimant’s case, we have considered Ms Twite’s submission that the witness statements provide information which was not contained in the February 2026 representations. We conclude that neither the examples presented by counsel nor the statements read as a whole contain anything of significance which was missing from the representations. That is not surprising because the material supplied in February 2026 was detailed and, apart from the AIM report provided to the CPS separately, comprehensive.[94]Ms Twite also referred to the passages in CPS guidance that require prosecutors to obtain the views of various parties, including the views of the victim and the families of all parties. Ms Twite referred to the importance of the victim “having a voice”. However, we are in no doubt that the guidance was not intending to give rise to an obligation to consult which would be subject to the Gunning requirements. But in any event, the conclusion in [93] above holds good for the claimant’s reliance upon CPS guidance. For the reasons we have given, the information before the defendant at the time of the decision under challenge complied in substance with the requirements of that guidance.[95]We should point out that some of the evidence in the witness statements filed on behalf of the claimant misunderstand the role of the High Court in judicial review. For example, paragraphs 4, 7, 8, 11, 13 and 16 of Ms Clarke’s witness statement address the “Court”, plainly referring to the High Court. We are asked inter alia to consider such matters as whether a formal conviction is necessary or proportionate when balanced against LYC’s welfare, his vulnerability and victimisation, his circumstances viewed holistically and the impact of prosecution on his sister. The beginning of paragraph 13 is startling:
“Should the court decide to criminalise LYC…”
. It is no part of the High Court’s function to reach conclusions in this case on such matters for itself. It is deciding a claim for judicial review. This should have been explained to the witnesses before the evidence was filed.[96]For completeness, we mention Ms Twite’s reliance upon the Plantagenet Alliance case at [100(6)], which suggests that the wider a decision-maker’s discretion, the more important it must be that he has all the relevant material to enable him to exercise it properly. It does not appear that the Divisional Court in fact applied that statement in that case. Its provenance is the judgment of Morritt LJ (as he then was) in the third judgment of the Court of Appeal in R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 466G. We note that the House of Lords differed from the Court of Appeal on certain points. We have received no submissions on how authoritative this statement should be considered to be or its subsequent treatment in the case law. In any event, the discretion exercisable by a prosecutor cannot be considered to be wide or open-ended. It is substantially constrained by the evidential and public interest tests, along with the guidance which falls to be applied, certainly in a case such as the present one.[97]For these reasons ground 1 must be rejected. But under ground 2 the claimant submits that, in any event, the defendant failed to follow, in the sense of apply, relevant guidance.[98]The CPS guidance requires matters going to the culpability of a child to be taken into account in decisions on whether to prosecute. Ms Twite criticised the following passage of the written record at p.4 as a misdirection:
“Matters of immaturity, development and vulnerability go to sentencing and disposal not liability”.
She submits that the decision-maker treated those matters as being irrelevant to the decision on whether or not to prosecute, thereby misinterpreting the guidance.[99]With respect, this is one of several points which reveal that the claimant has failed to read a passage in context and the written record as a whole. The text criticised formed part of section 3 dealing with criminal responsibility. The discussion of the public interest test began in section 4 of the document. Section 3 dealt inter alia with the abolition of doli incapax which historically had protected children against severe forms of punishment upon conviction. The effect of s.34 of the Crime and Disorder Act 1998 was to render children aged 10 and over criminally responsible for the offences they commit. Accordingly, there was no legal impediment to prosecution. The author then referred to the nature of the strict liability imposed by s.5 of the 2003 Act for the legislative purpose of protecting children under 13 from harm. It was in that context that the passage criticised appears. Immaturity and vulnerability do not affect criminal liability but, in the event of a conviction, they are still nonetheless considered in sentencing. What the passage criticised did not do was to suggest that immaturity and vulnerability were irrelevant to the public interest test and the discretion on whether to bring a prosecution.[100]A similar analysis applies to this sentence which also appears in the conclusion section:
“Arguments about youth, immaturity, neurodevelopment etc. are sentencing matters, not barriers to prosecution.”
Again, this formed part of the summary of the discussion on criminal liability. It was not dealing with the application of the public interest test. As is often the case, the clarity of the text might have been improved so as to reduce or avoid litigation risk and forensic analysis. But judicial review is not an exercise in awarding marks for draftsmanship.[101]In section 4 of the written record the decision-maker then gave substantial weight to LYC’s young age, his status as a child, and the representations made on his behalf. She referred to the reasons why it was said that LYC was vulnerable to peer influence and had been the victim of sexual exploitation or coercion by ZFG. The defendant did take those matters into account, and weigh them, in the decision on whether the prosecution should continue.[102]The CPS guidance also requires the welfare of a child suspect to be taken into account in a decision on whether or not to prosecute. Ms Twite criticised this passage in the conclusion section:
“Youth and welfare considerations are reserved for sentencing, ancillary orders disposal, not liability.”
It is clear that this is a reference back to the discussion of criminal liability in section 3 of the written record, not the application of the public interest test. Ultimately the decision-maker concluded that factors against prosecution taken into account under that test were outweighed by the factors in favour of prosecution.[103]That conclusion reflected the reasoning in section 4 of the written record. It was made clear by the decision-maker that she had taken into account welfare considerations. Nevertheless, she decided that prosecution was a proportionate response and continued:
“the welfare considerations, while significant, do not outweigh the public interest in a prosecution in this case”
. That balancing exercise had regard to her judgment that the youth court should be involved to “ensure structured oversight and enable appropriate interventions under court authority”.[104]That balancing exercise also took into consideration the serious impact of the alleged offences on the victim, LYS. Similarly, the representations from LYC’s solicitor in February 2026 accepted that “clearly, [LYS] was greatly harmed in the commission of this offence”. But in addition the representations referred to the harm that LYS would suffer if the prosecution continued and LYC were to be convicted and sentenced. It is plain from the written record that the decision-maker did have that harm in mind. We also note that the views of the youth professionals largely focused on the effect of LYC being absent from the family home.[105]A further important consideration was the effect on LYC of being criminalised. It is plain that the decision-maker took that factor into account.[106]The Statement of Facts and Grounds, the claimant’s skeleton and Ms Twite’s oral submissions submitted that there were additional matters which, according to their reading of the written record, were not taken into account. We will not prolong this judgment by dealing with each one. It is sufficient for us to say that we are satisfied there is no merit in those arguments.[107]For all these reasons ground 2 must be rejected.

Ground 4

[108]On the application to stay the prosecution as an abuse of process, no point was taken about the satisfaction of the evidential test. Instead, the District Judge was provided with what the claimant described as the “full representations” from his Solicitor to the CPS and accompanying materials. The written submissions made to the judge invited him to reach conclusions on that evidence, balancing public interest considerations against the need to try those accused of serious crime. The claimant also criticised “flaws in the decision-making process”, in particular, a failure to obtain the views of professional agencies before making the initial decision to charge and the failure to provide reasoning with the decision announcing the outcome of the review. In the claimant’s skeleton in reply, it was submitted that a stay should be granted because of the “multiple public interest considerations that balance against prosecution” and the insufficiency of reasoning as to how those had been considered. The claimant relied upon R (Treal Care (UK) Limited) v Secretary of State for the Home Department [2025] EWHC 1797 (Admin) at [16], as authority for the sweeping assertion that “there is a public law obligation on decision-makers to give adequate reasons for their decision”. It is plain from that paragraph that the case is not good authority for that proposition.[109]The CPS responded that it had considered all of the representations and evidence submitted to it and had carefully weighed all public interests in the balance. It said that this had been a matter for the Crown to determine and its conclusion had not been irrational (a point which is not in issue in this claim for judicial review).[110]In his decision the District Judge said that the CPS had assured him that they had considered all relevant documents against its prosecution guidance and there was no evidence to suggest otherwise. Of course, at that stage the Youth Court did not have the advantage of being able to see the written record. The judge acknowledged that in truly exceptional, very rare cases a “lower court” could scrutinise the internal, prosecutorial decision-making of the CPS. But the CPS was the public body with the duty to make charging decisions and it was not for the “lower courts” to sit in an appellate role to scrutinise and overturn those decisions. There would need to be evidence of bad faith or a refusal to consider matters that might be relevant to the decision. The judge said that that did not arise in this case.[111]It is plain that the District Judge did not decide to decline jurisdiction or to rule that he had no jurisdiction. He clearly decided the application for a stay of the prosecution on the basis that was put to him and on the material that was before him. We see no error in his decision. Indeed, it was unsurprising.[112]In this court the claimant’s argument shifted to a submission that the District Judge had been wrong to say that he could not consider public law errors in an application to stay a prosecution for abuse of process (relying on AAD). It is far from clear to us that the District Judge was asked by the claimant to accept such a broad proposition. Even if he had been, and even if he had rejected the submission, we do not think that he would have been wrong (see R v BKR [2023] EWCA Crim 903; [2024] 1 WLR 1327).[113]However, we do not need to decide this last point. Even if we were to assume that the claimant’s proposition is correct, where does it lead? The answer is the second part of ground 4 (see [26] above). Grounds 1 and 2 have failed and so ground 4 must fail in any event.

Ground 5

[114]This can now be dealt with shortly. We acknowledge the criticisms made by Ms Twite of the witness statement of Ms Dhillon seeking to explain how the non-existent case of R v J came to be relied upon. This was unsatisfactory, but does it matter for the outcome of the claimant’s challenge to the decision to continue with the prosecution? Our firm answer is no.[115]Ms Twite rightly accepted that in so far as the written record purported to derive principles from R v J (or wrongly from other authority), the real question is whether any of those principles was wrong in law (or contrary to CPS guidance). She also correctly accepted that several of them were non-controversial. But in relation to those principles which she criticised, we have already explained why we reject the criticisms.

Conclusion

[116]For the reasons we have set out above:(1) Ground 4 is unarguable and so there is no justification for allowing the application to amend the Statement of Facts and Grounds to add that ground and to treat the Youth Court as a second defendant rather than an interested party;(2) Ground 5 is unarguable;(3) The application to amend the claim and Statement of Facts and Grounds must be refused;(4) Ground 3 is unarguable and permission is refused to apply for judicial review on that ground;(5) We grant permission to apply for judicial review in respect of grounds 1 and 2 but we dismiss the application for judicial review.