R 'D' v Director of Public Prosecutions Philip White (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Sir Kenneth Parker |
| Judgment Date | 19 July 2017 |
| Neutral Citation | [2017] EWHC 1768 (Admin) |
| Docket Number | Case No: CO/5074/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 July 2017 |
[2017] EWHC 1768 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Sir Kenneth Parker
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CO/5074/2016
and
Sam Jacobs (instructed by Bindmans LLP) for the Claimant
Jacob Hallam QC (instructed by Crown Prosecution Service) for the Defendant
Hearing dates: 07 June, 2017
Approved Judgment
INTRODUCTION
The Victim's Right to Review ("VRR") scheme is now an established part of the criminal justice system, entitling a complainant or victim to seek a review of certain decisions taken by the Crown Prosecution Service ("CPS"). One of those decisions is a decision not to prosecute.
The present case concerns the Claimant ("D") challenging the Defendant's decision of 4 th July, 2016, at the conclusion of a VRR procedure, not to charge the Interested Party ("IP") with any criminal offences arising from allegations of historic child sexual abuse made against him by the Claimant.
Brief mention should be made of anonymity. D is entitled to anonymity by reason of s.1 of the Sexual Offences (Amendment) Act 1992. The grant of permission also anonymised the IP. Before us, D submitted that there was no basis for anonymising the IP. The Defendant was neutral and the IP had not responded to a letter written to him in this regard on behalf of D. Having regard to considerations of open justice, we could see no proper basis for anonymising the IP and, accordingly, ruled that his anonymity be lifted.
THE FACTS
In short summary, the facts are these. In October 2013, D telephoned the police and reported that she had been abused by her former head master (IP), when she was a child at school. The allegations are of a historic nature, relating to the years 1979 – 1984, when D was aged about 5 – 11. The IP was head master of the school from 1964 to 1986.
The abuse allegedly took place in the IP's office under the guise of punishment for misbehaviour. D alleged that the IP would touch her naked bottom, or would strike it with his hand or a cane. As I understood it, on some occasions another girl was present in the office. D further alleged that on one occasion she was made to perform oral sex upon the IP when he was smoking his pipe and caning her; she was unable to say how old she was when this happened and also said that she believed the oral rape (as it would now be categorised) occurred more than once.
Pausing there, it may be noted that the Defendant has prosecuted the IP in relation to allegations made by two other women who made their allegations independently of D. Those allegations related to a period of time about ten years earlier than the allegations made by D and did not involve oral penetration. We were told at the hearing that the IP was acquitted on those charges.
Between October 2013 when D reported her allegations to the police and was interviewed, and 2015, the investigation does not seem to have progressed. That may or may not be the fault of the Constabulary concerned – but the cause of that delay is neither here nor there with regard to these proceedings, so no more need be said of it. At all events, D was interviewed again in February 2015. The case was then passed to the CPS for a charging decision.
In the event and as appears from her letter to D dated 24 th September, 2015, Ms Stringer, a Senior Crown Prosecutor of Essex CPS, took the view that no charges should follow in relation to D's allegations.
In October 2015, pursuant to the VRR scheme, D sought a review of Ms Stringer's decision. The matter was allocated to Ms Michelle Brown, District Crown Prosecutor, CPS East of England who, by letter dated 22 nd April, 2016, informed D that the IP would not be prosecuted.
It is fair to say that Ms Brown's review was affected by a degree of factual confusion as to whether D had declined to obtain a further psychiatric report. Further, both Ms Stringer and Ms Brown gave weight to a particular psychiatric report which, as subsequently appears, could not be relied upon.
D was dissatisfied with Ms Brown's review. The upshot was that the matter was further reviewed by Ms Verma, a specialist prosecutor of the CPS Appeals and Review Unit. It is Ms Verma's decision, communicated to D in July 2016, which is the subject of this claim for judicial review.
Ms Verma concluded, "after a careful and fully independent consideration of all the available evidence", that the original decision not to prosecute was correct. Ms Verma underlined that, in accordance with the Code for Crown Prosecutors, for the case to proceed, she needed to be satisfied that there was sufficient evidence for there to be a realistic prospect of conviction.
Ms Verma reviewed D's account of the alleged abuse and was aware of a letter from a psychiatrist, Dr Abdul-Hamid, stating that she had been diagnosed with Post Traumatic Stress Disorder ("PTSD") as early as 1993 "following other traumatic events in your life". Ms Verma distinguished the facts here from those relating to the other allegations made against the IP, where a prosecution had proceeded. She recorded that the IP, when interviewed, had denied the allegations, so that this was a case of one person's word against another. Ms Verma went on to say that the CPS "can and do prosecute cases of this nature which is common in cases involving sexual assaults" but emphasised that in "this type of case your credibility in terms of your transparency and accuracy are important".
Even making allowance for the age of the allegations (some 33 years) and the inevitable difficulties D would have in recalling the details, Ms Verma indicated that she was concerned with aspects of D's account. She went on to highlight "a couple of examples" taken from D's recorded evidence, as follows:
i) D was unable to say how many times she had been sexually assaulted by the IP or how frequently it occurred.
ii) D had said that there was no penetration but also said that the IP had made her perform oral sex on him, which would involve penetration.
iii) D said that she remembered performing oral sex on the IP once but went on to say it could have happened more than once.
iv) In broad terms, D was reluctant to say whether another child was present when she had been assaulted.
v) It was essential that witnesses "do not hold back potentially relevant information". Ms Verma was aware:
"…that outside of your ABE [i.e., Achieving Best Evidence] you did eventually give police details of 11 other people you believed had been abused by the suspect. You made no mention of these 11 witnesses in your 2 previous ABE interviews. The police were unable to trace 4 of the people you named from the details you provided. However, of the other 7 who the police did trace and spoke to none of them claimed to have witnessed any abuse by the suspect or claimed to have been abused by him.
One of the people you named specifically said that she had no recollection of either of you ever being sent to the Headmaster's office. Another of the girls you named as being a person that was abused by the suspect denied that the suspect had abused her. This information is undermining and amounts to material we would have to disclose to the suspect as potentially undermining evidence."
vi) There were inconsistencies in D's account as to what she had discussed with others, including the detail of her allegations. One of those to whom D had spoken said that D had named another girl who had been abused by the IP. When the police spoke to both these women, they each denied that they had been abused by the IP.
Ms Verma went on to note other aspects of D's evidence where there appeared to be a lack of clarity about what had factually taken place. Additionally, the police had contacted former teachers, deputy headmasters and secretaries, employed at the school at the relevant time. None provided evidence capable of supporting D's account. Furthermore:
"I have to consider material that would have to be disclosed as unused material in this case. This would include disclosing the previous allegations of rape and sexual assault that have not been formally made to police that are referred to in police reports and your medical records."
In the event, having "carefully considered" D's evidence and the lack of supporting evidence, Ms Verma was not satisfied that there was a realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors had not been met.
THE LEGAL FRAMEWORK
For present purposes, the starting point is the Code for Crown Prosecutors (2013 ed., "the Code"). The Code is issued by the Defendant and gives guidance to prosecutors as to the general principles to be applied when making decisions about prosecutions. By para. 2.4, prosecutors are reminded that they must be fair, independent and objective; they must always act in the interests of justice.
Para. 3.4 provides that prosecutors must only start or continue a prosecution "when the case has passed both stages of the Full Code Test…", namely (para. 4.1): "(i) the evidential stage; followed by (ii) the public interest stage."
As has been seen, in the present case, it is the evidential stage which is crucial. The Code provides as follows:
"4.4 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
4.5 The finding...
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...has been specifically applied in a claim for judicial review made in the context of criminal proceedings. 13 However, in R (D) v DPP [2017] EWHC 1768 (Admin), and in R (Gilfoyle) v CCRC [2017] EWHC 3008 (Admin), each of which involved a claim for judicial review made in the context of crimi......