R (E and Others v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Mr Justice McCombe |
| Judgment Date | 10 June 2011 |
| Neutral Citation | [2011] EWHC 1465 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12640/2010 |
| Date | 10 June 2011 |
[2011] EWHC 1465 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SITTING AT LEEDS)
Leeds Combined Court
1 Oxford Row
Leeds LS1 3BG
Lord Justice Munby
Mr Justice McCombe
Case No: CO/12640/2010
CO/12644/2010
Mr Hugh Southey QC and Ms Tina Dempster (instructed by Howard & Byrne) for the First Claimant (E)
Mr Adrian Strong (instructed by Howard & Byrne) for the Second and Third Claimants (S and R)
Mr Louis Mably (instructed by the CPS Appeals Unit) for the Defendant
Hearing date: 11 May 2011
In these proceedings for judicial review challenge is made to the decision of the Director of Public Prosecutions to prosecute a child for the alleged sexual abuse by her of her two younger sisters.
The facts
E, S and R are sisters. E was born in 1996 and is 14 years old. S was born in 2005 and is 5 years old. R was born in 2007 and is 4 years old. At the time of the offences in the middle of 2009 they were respectively 12, 3 and 2 years old. I shall refer to their mother as J.
On 26 January 2010 police officers from CEOP (the Child Exploitation and Online Protection Centre) discovered a video recording on the internet. We have not seen the video but have been supplied with a description of its contents. There is no need to go into detail. It is common ground that it lasts for about 25 minutes and shows E engaging in the sexual activities with S and R which are referred to in paragraph 7 below. (E subsequently told the police that some of this was simulated – "I just pretended to" – but nothing turns on that for present purposes.)
The local authority convened a multi agency strategy group "to co-ordinate the response to the concerns identified in relation to E". It consisted of representatives from the local authority, the NSPCC, the local safeguarding children board, the youth offending team, the child and adolescent mental health service, the children's school and the police. It met on 11 February 2010, 17 March 2010 and 15 May 2010. On 8 June 2010 its chair, the local authority's Assistant Director, Children and Families, produced a report for consideration by the CPS.
The report records that at the meeting on 17 March 2010 the police informed the strategy group of their intention to treat E as a perpetrator of offences against her younger siblings, described their plan to arrest and interview her under caution at the police custody suite and potentially seek a criminal conviction against her, and set out their rationale. The report continues:
"The strategy group on 17 th March wanted to clarify the outcomes sought by this planned course of action however these remain unclear.
The impact of the planned approach by the police on other agencies ability to safeguard E and her younger sisters was considered at this meeting and a subsequent strategy meeting held on 15 th May2010.
It would be fair to say that the Police were isolated in their analysis that such a course of action would be in the best interests of the child."
E was interviewed by the police on 26 March 2010 and again on 23 April 2010. During the course of the interview on 26 March 2010 her solicitor read out a statement E had prepared. In it she gave an account which, if true, showed that she had been groomed over the internet by an adult male who, in part by the use of threats, had persuaded her on various previous occasions to expose herself and behave in a sexual way and had then persuaded her to do the things to her sisters which can be seen on the video.
The papers were passed to the CPS and considered by a Crown Prosecutor who is a specialist prosecutor in cases of child abuse and sexual offences. On 11 August 2010 she wrote to the police saying that she was satisfied there was sufficient evidence to provide a realistic prospect of conviction of E for the following four offences:
i) Sexual assault of S, a child under 13, contrary to section 7 of the Sexual Offences Act 2003, by forcing her to suck E's nipples on numerous occasions between 1 July 2009 and 30 September 2009.
ii) Sexual assault by penetration of R, a child under 13, contrary to section 6 of the Act, by removing her clothes, inserting her tongue and finger into R's vagina and sitting astride R's vaginal area when naked and moving up and down, between the same dates.
iii) Making an indecent photograph of both S and R in a video contrary to section 1(1)(a) of the Protection of Children Act 1978 (level 4) between the same dates.
iv) Distributing an indecent photograph of a child as above contrary to section 1(1)(b) (level 4) between the same dates.
She said she had decided that it was in the public interest to charge E with these four offences.
E was served with a summons on 3 September 2010 and appeared at the Youth Court on 21 September 2010. On 19 October 2010 the Youth Court committed her for trial at the Crown Court, where she stands charged on an indictment containing six counts (the matters referred to in paragraph 7(ii) above are now the subject of three separate counts). Each count charges an offence on a single occasion, now put as having been between 1 January 2009 and 19 November 2009. The proceedings have been adjourned pending the outcome of the present applications.
The strategy group
I return to the report of the strategy group dated 8 June 2010.
The report recognised that "inevitably a matter such as this presents a dilemma about how best to proceed in the best interests of these children and the wider community."
Under the heading 'Safeguarding issues' the report made a number of important points. It is desirable to set out the key passages in full (for ease of reference I have inserted paragraph numbers):
"1 Colleagues from the NSPCC have confirmed that neither E nor her sisters could be therapeutically supported while a prosecution of this complexity is pursued. The likely delay in getting such support to these children is both great and harmful to their eventual recovery.
2 The family has to-date survived the impact of this devastating discovery; helpfully they have worked in partnership with the agencies to protect and support all of their children.
3 Given their own history and experience of the criminal justice system it is very difficult to imagine how they will construe any criminal action taken against their daughter as anything other than hostile.
4 In circumstances such as these parents are critical agents in the support and recovery of their children. To lose their cooperation and understanding in this matter would seriously jeopardise the children's ability to recover from their experiences and potentially this family's ability to remain intact.
5 E's view of herself and her culpability in this matter is a key issue. She is already experiencing, for a 13-year-old child, severe consequences for her actions. E is separated from her parents and sisters, deprived of a network of friends, her behaviour is known about by some of her peers and she lives with ongoing uncertainty about 'what happened' without the opportunity for any therapeutic support.
6 Images of E being remotely abused are now widely published across the Internet with a large pool of potential suspects spread throughout the world. Police advice to the strategy group was that the opportunity to identify these suspects is limited.
7 Agencies are concerned that a prosecution through a criminal justice process risks seriously distorting her ability to separate out in the future any distinction between what she can be reasonably held to account for and what was in fact the responsibility of a predatory paedophile. Helping E to achieve an appropriate view of her role in this matter is also critical to her recovery from the abuse she experienced.
8 Concerns were also raised about the message such a prosecution will give not only to E and her family but to the wider community and any other young people who may be experiencing similar abuse and coercion online.
9 Agencies understand CEOP are keen to restrict interventions which might limit the future potential for young people engaged in such incidents to come forward."
Under the heading 'Summary' the following (amongst other) points were made:
"10 Uncertainty about how this matter is dealt with is creating significant delay in getting therapeutic help to E.
11 The multi agency group are further concerned about the impact on E of a criminal trial which would further significantly delay the essential therapeutic work she needs.
12 Agencies were generally agreed that it is such therapeutic work that will help to quantify and minimise any potential future risk E may pose."
It will be noted that the report focussed not only on the implications of prosecution for E (paragraphs 1–7, 10–12) and children generally (paragraphs 8–9); it also, and this is a crucial point, considered the effects on her siblings if E was prosecuted (paragraphs 1–4).
The decision
In accordance with The Code for Crown Prosecutors, issued by the Director of Public Prosecutions in February 2010 pursuant to section 10 of the Prosecution of Offences Act 1985, the decision to prosecute has two stages: (i) the evidential stage followed by (ii) the public interest stage. In the present case, as we have seen, the Crown Prosecutor decided that both criteria were met. There is no challenge to the decision in relation to (i), the attack from all three claimants being explicitly confined to the decision in relation to (ii). It is accordingly on this that I concentrate.
The decision: the DPP's guidance
Before turning to the decision itself, it is convenient to summarise what for present purposes are the most significant parts of the relevant guidance given by the DPP...
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