R (F) v DPP
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice |
| Judgment Date | 24 April 2013 |
| Neutral Citation | [2013] EWHC 945 (Admin) |
| Docket Number | Case No: CO/3845/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 April 2013 |
and
[2013] EWHC 945 (Admin)
The Lord Chief Justice OF ENGLAND AND WALES
Mr Justice Fulford
Mr Justice Sweeney
Case No: CO/3845/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Mountfield QC for the Claimant
Andrew Edis QC for the Defendant
Hearing dates: 19th March 2013
The Lord Chief Justice of England and Wales:
This is the judgment of the Court.
This is an unusual, but not unique, application for judicial review of the refusal of the Director of Public Prosecutions ("the defendant") to initiate a prosecution for rape and/or sexual assault of the claimant by her former partner, ("the intervener"). The first claim in these proceedings was filed on 28 June 2011, but shortly thereafter the defendant agreed on 14 July 2011 to make a fresh decision. The review was conducted by his principal legal advisor, Alison Levitt QC. She approached the decision on the basis that the claimant's credibility was secure. Nevertheless she concluded that even if a jury were to believe every word of her evidence, it would be insufficient to establish a realistic prospect of conviction for any offence: this decision is the subject of the present application.
It is perhaps worth underlining at the outset that judges are not involved in police investigations or prosecutorial decisions about whether and when prosecutions should take place. Their involvement in the administration of criminal justice in relation to serious offences normally begins after the investigations are largely complete and the relevant decisions relating to the prosecution have been made by the Crown Prosecution Service, and the case arrives at the Crown Court. Thereafter they may, on well known principles, conclude that the prosecution constitutes an abuse of process: if they do, the process then comes to an end. Again, at the end of the evidence for the prosecution, applying what we shall describe as Galbraith principles, they may conclude that there is insufficient evidence to justify the case proceeding further. These processes exemplify the principle that judicial control over the prosecutorial process arises not before but after the case has reached a court vested with jurisdiction to hear and conduct the trial. The decision whether it should do so has been made by the independent Crown Prosecution Service for which the defendant is responsible.
By contrast with a flawed decision to prosecute, where the individual facing trial is provided with ample alternative remedies in the Crown Court (or Magistrates' Court), by definition when it is contended that the decision that there should be no prosecution itself constitutes a miscarriage of justice, the only judicial remedy would be a judicial review. The order sought by the current application would require the defendant to reconsider and review the decision that a prosecution should not take place.
Where a decision not to prosecute has followed a painstaking review of the kind which occurred here, and which will be expected hereafter following the implementation of the Crown Prosecution Service's offer to the victim of a Right of Review (VRR) which, we understand will become effective in May 2013, it will be a very rare case indeed when the court can properly decide that it should interfere with the decision not to prosecute. On the evidential question whether the prosecution has a realistic prospect of success, the responsibility for the decision requires the CPS to make an informed judgment
".. of how a case against a particular defendant if brought, would be likely to fare in the context of a criminal trial before (a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere".
(See, per Lord Bingham CJ in R v Director of Public Prosecutions ex parte Manning [2001] 1 QB 330).
Lord Bingham went on to underline that the test should not be so exacting that "an effective remedy would be denied" when judicial review constitutes the only way in which "the citizen can seek redress against a decision not to prosecute". However the court examining the decision not to prosecute is not vested with a broad jurisdiction to exercise its own judgment, and second guess the defendant's decision, and direct reconsideration of the decision simply because the court itself would have reached a different conclusion. The remedy is carefully circumscribed. In the decided cases different epithets have been applied to highlight how sparingly this jurisdiction should be exercised. The remedy is "highly exceptional", "rare in the extreme", and "very rare indeed".
Without suggesting a comprehensive list, the decision not to prosecute may be shown to follow a perverse decision to disregard compelling evidence or inexplicably to ignore the relevant prosecutorial policy or policies, or a combination of both. It may, although as far as we know there have never been any such examples, follow some impropriety or abuse of power by those entrusted by the defendant with the relevant responsibility. It may also be based on an error of law. If so it would be open to this court to require the decision to be reconsidered and the law correctly applied.
The Levitt Review provides a careful, detailed analysis of the evidence and the relevant prosecutorial policies. It has been subjected to critical analysis of the kind which is sometimes made in an appeal against a judgment in a civil case where the appeal is founded on the submission that the judge's findings of fact were erroneous. Although numerous issues and sub-issues are raised, for the reasons we have explained, our consideration is limited to answering the questions whether the Levitt review is flawed so that, on judicial review grounds, it should be set aside.
The essential evidence of the claimant is that after her Islamic marriage to the intervener in November 2009 their relationship was marred by his abusive dominance. Miss Levitt summarises the relationship after the marriage: (the claimant) says that after their Islamic marriage, although they never lived together (the intervener) always treated her as his wife. She plainly does not mean this as a compliment; the fact that they were married in the religious sense gave him a further sense of control over her. She describes too the sexual side of their relationship as continuing in the same unsatisfactory way (to use a neutral term)after or before the marriage. Amongst other things, the intervener would put his hand on her throat during intercourse and call her his "bitch". Miss Levitt quotes the claimant directly: " almost all sex with (the intervener) involved him displaying dominance, control and emotional detachment or aggression … occasionally sex would begin intimately but then (the intervener's) demeanour would suddenly change and he would become detached and domineering, often pinning me by my throat … as the relationship progressed I felt less and less like I had the right to say no to his sexual demands. He impressed upon me verbally that as his Muslim wife I should fulfil his sexual needs unquestionably. I felt it was not acceptable to him for me to refuse to be intimate for any reason and as time went on, due to reactions I encountered in him, I became increasingly fearful about saying no to him because of the potential consequences of doing so". Miss Levitt observes: "I have taken it that she means that she was fearful that he would leave her if she did not go along with his demands". He would taunt her by telling her (using the claimant's own language): "we both know you are not strong enough to get rid of me". (The claimant) acknowledges that although she would tell him to go, often she would end up begging him to stay.
In her assessment Miss Levitt describes how:
"I have treated her as a vulnerable young woman who was (arguably) emotionally manipulated into entering into, and then remaining in, a relationship about which she had considerable reservations at the time and, it would appear she now regrets. Much of what she describes fits squarely within the Government definition of domestic violence, and would no doubt resonate with other victims. I have in mind particularly her hope and expectation that he would change."
Miss Levitt worked throughout on the assumption that the claimant's evidence was "entirely truthful and reliable", and notwithstanding some minor discrepancies which were entirely consistent with the passage of time since the relevant events. The discrepancies did not cause her concern about the claimant's credibility.
Without repeating the entire history of the relationship, three particular incidents in the claimant's narrative account assume prominence. The first took place on 2 May 2009 (that is before the Muslim marriage). The intervener wanted the claimant to return to her flat, by implication to have sexual intercourse. Miss Levitt's summary continues:
"She says that she did not want to do that because she was revising for her exams. Once it became clear that they were both in the (university) building, he told her he was in the gym in the basement. She thought that his texts...
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