The King on the application of AB (by his litigation friend CD) v Uxbridge Youth Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 21 November 2023 |
| Neutral Citation | [2023] EWHC 2951 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1437/2023 |
and
[2023] EWHC 2951 (Admin)
THE HONOURABLE Mr Justice Linden
Case No: CO/1437/2023
AC-2023-LON-001239
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler KC and Margo Munro Kerr (instructed by Duncan Lewis Solicitors) for the Claimant
Benjamin Douglas-Jones KC and Andrew Johnson (instructed by the Director of Public Prosecutions) for the Interested Party
Hearing date: 14 November 2023
Approved Judgment
This judgment was handed down remotely at 10.45am on 21 st November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Linden
Introduction
The parties to this claim for judicial review have agreed that the Director of Public Prosecutions (“the DPP”) will withdraw the decision to prosecute the Claimant which is indirectly under challenge and will make a fresh decision on his case. For his part, the Claimant has therefore agreed to withdraw his claim subject to the permission of the Court.
There is, however, disagreement on the question of costs and this, therefore, was the Claimant's application for the costs of the claim. As the application was framed in writing, there were two issues for me to determine:
a. First, should the question of costs be determined under the criminal or the civil costs regime? The Claimant argues that it should be the latter but the DPP disagrees. I was told by Mr Buttler KC that there is no disagreement that if it is the latter, costs should be awarded in the Claimant's favour.
b. Second, if the Claimant's application should be determined under the criminal costs regime, should an order for costs be made against the DPP? The Claimant argued that one should be, on the grounds that there was “an unnecessary or improper act or omission by” the DPP for the purposes of section 19(1) Prosecution of Offences Act 1985. The DPP argued that this section does not confer a power on the High Court to make such an order and that, in any event, there was no impropriety in this case.
At the beginning of the hearing Mr Buttler said that he accepted that section 19(1) of the 1985 Act does not confer a power on the High Court to award costs: under this section, the power is only conferred on magistrates' courts, the Crown Court and the Court of Appeal. He said, however, that this made his case stronger on the first issue. He also indicated that he would be submitting that, in any event, the conduct of the DPP in deciding to prosecute the Claimant was unnecessary or improper and that therefore this was the type of case in which an award of costs in the Claimant's favour would be appropriate pursuant to the civil costs regime, and consistent with what is contemplated under the costs regime applicable to criminal causes.
I was also told at the beginning of the hearing that the DPP has now re-made his decision and has again concluded that it is in the public interest to prosecute the Claimant. The reasons for that decision were not available to the Claimant at the hearing and were not put before me or debated.
Context
The underlying criminal proceedings relate to an alleged robbery of a 17 year old boy on 18 March 2022. The Claimant and an accomplice are alleged to have jointly used force to steal the boy's mobile phone and to demand his password or PIN. When the boy's mother became involved shortly after the robbery, the Claimant is alleged to have twisted her arm and pushed her to the ground whilst his accomplice punched the boy repeatedly in the head, before both made good their escape.
The Claimant was born on 8 September 2007, and was therefore 14 at the time of the offending. The Single Competent Authority (“SCA”) has made a conclusive grounds decision that he is a victim of trafficking on three occasions, including on 25 November 2022 when it accepted that there was a nexus between the trafficking of the Claimant and the index offences. This, in summary, was that the Claimant was selling drugs as part of a drug dealing operation, that he owed the gang £1,700 and that he was told to steal the boy's phone. If the Claimant did this his debt would be cleared and, if he did not, he and his family would face torture. This account was accepted by the SCA on the balance of probabilities.
The CPS decided that the Claimant should be prosecuted for the robbery and also face 2 charges of battery. That decision was reviewed by the DPP in the light of the 25 November 2022 decision of the SCA but it was confirmed that the prosecution would proceed. At a hearing in the Youth Court on 3 March 2023, the Claimant therefore sought a stay of the criminal proceedings on the grounds that the reviewing lawyer for the prosecution had not considered the public interest in deciding to proceed. The Claimant's application was refused on the grounds that the relevant guidance had been followed and the public interest in the prosecution had been considered.
On 19 April 2023, the Claimant issued a claim for judicial review. Although in form the challenge was to the decision of the Youth Court to refuse a stay, in substance the pleaded grounds for review indirectly challenged the DPP's decision to prosecute. The DPP filed his Acknowledgment of Service and Summary Grounds for contesting the claim on 3 May 2023 and, on 17 May 2023, Lavender J ordered a rolled up hearing.
Subsequently, Mr Buttler was instructed on behalf of the Claimant and he advised that a request be made pursuant to CPR Part 18 for clarification of the decision making process which led to the prosecution. This was done on 9 June 2023 and the reply is dated 28 June 2023. In the light of this reply, on 3 August 2023 the Claimant applied to amend his Statement of Facts and Grounds to take a point which is now conceded by the DPP and which resulted in the agreement that a fresh decision would be made and the claim for judicial review would therefore be withdrawn.
That point is as follows. Whether or not a potential defendant in criminal proceedings would have a defence under s45 of the Modern Slavery Act 2015, and the Claimant would not have such a defence in relation to the charge of robbery, prosecutors are required to consider whether it is in the public interest to prosecute a suspect who is a victim of human trafficking. They do so in accordance with the CPS guidance on “Modern Slavery, Human Trafficking and Smuggling” which requires the application of a four stage test. Stage 4 requires consideration of whether it is in the public interest to prosecute. It requires the seriousness of the offence, the level of culpability of the victim of trafficking, the harm caused to the victim of the offence and the age and maturity of the suspect to be taken into account. In addition to this, where the suspect is an adult, the Guidance states that the prosecutors should consider:
• “ Whether there is a nexus between the trafficking/slavery or past trafficking/slavery and the alleged offending; and, if so,
• Whether the dominant force of compulsion from the trafficking/slavery or past trafficking/slavery acting on the suspect is sufficient to extinguish their culpability/criminality or reduce their culpability/criminality to a point where it is not it the public interest to prosecute them.”
This will be referred to as “the dominant force of compulsion test”.
In the case of a suspect who is a child there is the same requirement to consider whether there is a nexus between the trafficking and the offending, but the second question is as follows:
• “…; and, if so,
• Whether the circumstances extinguish the child's culpability/criminality or reduce it to the point where it is not in the public interest to prosecute them. If there was compulsion, then this will reduce the public interest, but it is not a necessary element. As for an adult, the more serious the offence, the stronger the countervailing factors will need to be before it is not in the public interest to prosecute.”
So, in the case of a child, a broader range of circumstances than the dominant force of compulsion may lead to the conclusion that they should not be prosecuted, provided that the circumstances extinguish the child's culpability or criminality, or reduce it to a sufficient extent for it not to be in the public interest to prosecute. If there was compulsion, this will support the argument that prosecution is not in the public interest, but compulsion is not a prerequisite or the only circumstance which may satisfy the test.
The DPP now accepts that the caseworker in the Claimant's case applied the second limb of the adult test rather than the second limb of the test applicable to a child and that this was an error of approach. As noted above, he therefore agreed to consider that public interest question again, applying the Guidance correctly.
Legal framework
Section 51(1) of the Senior Courts Act 1981 provides that the costs of and incidental to all proceedings in, amongst others, the High Court shall be in the discretion of the court. Section 51(5) provides that:
“Nothing in subsection (1) shall alter the practice in any criminal cause, or in bankruptcy.”.
As is well known, the CPR include various rules and practice directions which govern the exercise of the court's discretion but it is not necessary for present purposes to set these out.
In Murphy v Media Protection Services Ltd [2012] EWHC 529 (Admin), [2013] Costs LR 16 at [15] the Divisional Court held, as part of the ratio of the case, that:
“Clearly, save in exceptional cases, prosecutions and appeals in criminal...
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The King (on the application of Director of Public Prosecutions) v Manchester City Magistrates' Court
...R (Bahbahani) v Ealing Magistrates' Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §§87–101; and R (AB) v Uxbridge Youth Court [2023] EWHC 2951 (Admin) at §§15–20, 34–37, 5 In relation to costs, I would accede to the following: the Interested Parties' requests for a payment on account o......