R (oao “Monica”) v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ,Mr Justice Jay |
| Judgment Date | 14 December 2018 |
| Neutral Citation | [2018] EWHC 3508 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1354/2018 |
| Date | 14 December 2018 |
and
[2018] EWHC 3508 (Admin)
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
THE HONOURABLE Mr Justice Jay
Case No: CO/1354/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC and Joanna Buckley (instructed by Birnberg Peirce) for the Claimant
Gareth Patterson QC (instructed by CPS Appeals and Review Unit) for the Defendant
Ben Brandon (instructed by Slater and Gordon LLP) for the Interested Party
Hearing dates: 13 th and 14 th November 2018
Approved Judgment
Lord Burnett of Maldon CJ and
Introduction
This is an application for judicial review of the decision of the Director of Public Prosecutions of 20 December 2017, confirming an earlier decision not to prosecute ex-DC Andrew Boyling for the offences of rape, indecent assault, procurement of sexual intercourse and misconduct in public office.
Between April and October 1997, the claimant (anonymised in these proceedings as “Monica”, the name by which she is known in the Undercover Policing Inquiry chaired by Sir John Mitting) and Mr Boyling were sexual partners. At the time, the claimant was an environmental activist heavily involved in the “Reclaim the Streets” protest movement. Mr Boyling had infiltrated that movement on the orders of his superiors, using the pseudonym “Jim Sutton”. He met and befriended the claimant in that capacity. The claimant was completely unaware of his real identity. The parties gradually came together through mutual attraction and interest, and their relationship began (as it was in due course to end) at the instigation of the claimant. Mr Boyling successfully maintained his cover throughout this period. It was only in January 2011 and following media reports, that the claimant discovered the true position.
Central to the claimant's case in these proceedings is her evidence that under no circumstances would she have entered into any sort of relationship with Mr Boyling had she known the truth. The fact that she believed that he shared her core beliefs was central to her decision to enter into a relationship with him. She felt she had been abused. She made that clear emphatically during the course of her first police interview on 22 August 2016. There is no reason to doubt the strength of the claimant's feelings and that they formed the basis of the decision under challenge.
The narrow issue, or series of issues, for this Court is whether the Director's decision not to prosecute is legally flawed in public law terms. As we shall explain in due course, the circumstances in which this Court may properly intervene – respecting the different constitutional roles of the judiciary and the Director in the administration of justice are circumscribed.
The Background to the Director's Decision
The skeleton argument filed by Ms Phillippa Kaufmann QC on behalf of the claimant provides a detailed chronological narrative. Its most important features, focusing as we must on the material which was considered by the Director in December 2017, are as follows.
Shortly after the end of his relationship with the claimant, Mr Boyling had a sexual relationship with another woman, TEB, which lasted about 18 months. Shortly after that, he had a relationship with DIL. Both were activists involved in Reclaim the Streets.
In October 2011 the Metropolitan Police Service set up Operation Herne in response to complaints about the use of undercover and covert policing tactics going back several decades. The Operation Herne report dated March 2014 concluded that:
“There is no evidence at this time to suggest sexual relationships between undercover officers and activists were ever officially sanctioned or authorised by the SDS [Special Demonstration Squad] management.
However, documents suggest that there was informal tacit authority regarding sexual relationships and guidance was offered for officers faced with the prospect of a sexual relationship.
…
… there are and never have been any circumstances where it would be appropriate for such covertly deployed officers to engage in intimate sexual relationships with those they are employed to infiltrate and target. Such an activity can only be seen as an abject failure of the deployment, a gross abuse of their role and their position as a police officer and an individual and organisational failing. It is of real concern that a distinct lack of intrusive management by senior leaders within the MPS appears to have facilitated the development and apparent circulation of internal inappropriate advice regarding an underground police officers engagement in sexual relationships.”
The “internal inappropriate advice” would at least include part of the internal “SDS Tradecraft Manual” of February 1995 (updated in March 1996):
“ 5.6 Sexual Liaisons
5.6.1. The thorny issue of romantic entanglements during a tour is the cause of much soul-searching and concern. In the past emotional ties to the opposition have happened and caused all sorts of difficulties, including divorce, deception and disciplinary charges. Whilst it is not my place to moralise, one should try to avoid the opposite sex for as long as possible.
…
5.6.3. While you may try to avoid any sexual encounter there may come a time when your lack of interest may become suspicious. [Gist: ‘This sentence provides advice on how to deflect suspicion …'] [These] options are fraught with difficulty and you must make your own mind up about how to proceed. If you have no other option but to become involved with a weary, you should try to have fleeting, disastrous relationships with individuals who are not important to your sources of information. One cannot be involved with a weary in a relationship for any period of time without risking serious consequences.”
In November 2015 the Commissioner settled claims brought by a number of women, including TEB and DIL but not the claimant, who had had sexual relationships with undercover police officers. A public apology was given by Assistant Commissioner Hewitt in connection with that settlement. Amongst other things, he said this:
“I acknowledge that these relationships were a violation of the women's human rights, an abuse of police power and caused significant trauma. …
[N]one of the women with whom the undercover officers had a relationship brought it on themselves. They were deceived pure and simple. I want to make clear that the Metropolitan Police does not suggest that any of these women could be in any way criticised for the way in which these relationships developed. …
These matters are already the subject of several investigations including a criminal and misconduct enquiry called Operation Herne. Undercover policing is also now subject to a judge-led Public Inquiry which commenced on 28 th July 2015. Even before those bodies report, I can state that sexual relationships between undercover police officers and members of the public should not happen. The forming of a sexual relationship by an undercover officer would never be authorized in advance nor indeed used as a tactic of deployment. If an officer did have a sexual relationship despite this (for example if it was a matter of life and death) then he would be required to report this in order that the circumstances could be investigated for potential criminality and/or misconduct.”
Meanwhile, on 21 August 2014 the CPS announced its decision not to prosecute any officer who had formed intimate relationships in these circumstances. DIL exercised her Victim's Right to Review but in July 2016 the CPS stated that it would not reconsider its decision in relation to charging Mr Boyling.
The claimant's first interview, to which we have referred, was given in response to an invitation from Chief Constable Creedon, independent lead of Operation Herne. Subsequently, Mr Boyling was interviewed in connection with the claimant's allegations. He provided “no comment” answers and a brief prepared statement in which he said that he did not wish to add anything to the prepared statement he had provided under caution on 27 April 2012. We have not seen that document, but it formed part of the material that was before the CPS decision-makers in 2017.
On 28 February 2017 the claimant's solicitors, Birnberg Peirce, wrote to Mr Nick Vamos, Head of Special Crime and Counter Terrorism Division at the CPS, inviting him to consider the claimant's complaint in the context of the earlier decision in DIL's case not to prosecute Mr Boyling. On 4 July 2017 Mr Vamos informed Birnberg Peirce that the CPS had decided not to prosecute the interested party. He pointed out that much of the legal analysis provided in connection with the claimant's case duplicated DIL's.
On 19 July 2017 the claimant sought a review of that decision. Detailed submissions were sent to the CPS on 15 September; these expressly referred to the conclusions in the Operation Herne Report and to AC Hewitt's apology. On 20 December 2017 a specialist prosecutor at the CPS notified the claimant's solicitors that “[f]ollowing a careful and fully independent consideration of all the available evidence, I have concluded that the decision not to prosecute this case was in fact correct”.
The Decision under Challenge
The lawyer's decision was given on the basis that the case failed at the evidential stage of the CPS's Code for Crown Prosecutors. The evidence did not provide a realistic prospect of conviction. According to paragraph 4.7 of the Code, a realistic prospect “means that an objective, impartial and reasonable jury … properly directed and acting in accordance with the law, is more likely than not to convict the...
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