Wisdom Okoroji v Crown Prosecution Service

On 20 December 2024 the appellant was convicted of three offences of sexual activity with a child, contrary to s. 9 Sexual Offences Act 2003 by District Judge Nigel Dean in the Youth Court sitting at Croydon Magistrates’ Court.

The appellant is represented by Miss Mawer, who appeared in the court below. The respondent is represented by Mr Marsland, who did not appear below. I am very grateful to both counsel for their helpful and thoughtful written and oral submissions.

The appellant appeals the decision of the District Judge, (“the judge”), in finding that the delay in bringing the prosecution against him was not an abuse of the process of the court and therefore failing to stay the proceedings.

In the stated case the court is asked,

The appeal is brought by way of case stated under s. 111 Magistrates’ Court Act 1980.

To succeed in the appeal, it must be shown that the decision was wrong in law. The appeal is not a means whereby the court can be asked to revisit the issues and reach a different conclusion. In bringing the appeal to this court the appellant has given up his right to appeal on the facts of the case to the Crown Court.

The facts of the incidents are not central to any issue in the case, save to note that these were incidents of sexual assault by the appellant of the complainant. The appellant and complainant were students at the same school and were at the material times aged between 13 and 14 years. The offences are correctly identified as serious.

Her mother’s concerns about her mental health had led to the complainant being seen by a worker from the Child and Adolescent Mental Health Services team, (“CAMHS”). On that occasion she disclosed that she had been the victim of a series of sexual assaults at school. It appeared that she had been assaulted by a small number of the boys in her class. She was being targeted by the boys.

The judge found the complainant to be a credible and reliable witness. He did not find the appellant to be either credible or reliable.

She had made a video recorded statement on 15^th July 2021 and the appellant had been interviewed within a few weeks of that date.

In summary, charge 1 was an allegation of digital penetration of the complainant’s vagina. Charge 2 was an alternative count alleging touching of her vagina but not penetration. This was said to be an incident which had occurred in the sports hall at school. The appellant had touched her breasts, pushed her to the ground, touched her bottom and had tried to penetrate her vagina with his finger. The judge was not sure that actual penetration had occurred and so found charge 2 proved but not charge 1.

Charge 3 alleged that the appellant had touched the complainant’s breast. The judge was sure that that had occurred, he was not persuaded that the appellant was one of a group of boys who had dragged the complainant into an alleyway and assaulted her. The third incident occurred outside the complainant’s home; the judge was sure that the appellant had touched the complainant’s breast and her bottom and had tried to penetrate her vagina with his finger. He was not sure that actual penetration had occurred and therefore found charge 4 proved but not charge 5.

The central issue in the case is whether, especially given the appellant’s age, the delay in the process of investigating and prosecuting this case was so extreme as to render the trial of the case an “affront to justice” and capable of bringing the administration of justice into disrepute.

It is accepted that the trial was conducted fairly and that he was properly found to have committed the offences alleged.

The sequence of events and passage of time between the complaint and charge and trial is not in dispute and I have accepted the chronology as agreed by counsel.

The CPS has published its guidance to prosecutors in dealing with “youth crime”; the latest version is at https://www.cps.gov.uk/prosecution-guidance/children-suspects-and-defendants An earlier version is included in the hearing bundle but the contents are the same for these purposes.

The guidance is based upon the principle that special considerations should be applied to all cases involving young offenders. One of its stated initiatives is “contributing to a reduction of delay in the youth justice system”. To that end it advises that the case must be dealt with “as soon as possible”. The reasoning being that any untoward delay between offending and sentence will cause difficulty for the offender “ in relating the sentence to the offence”.

“All cases involving youth offenders must be dealt with expeditiously and avoid delay, which has at its core the principle that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence. To maximise the impact on the youth offender, the case must be dealt with as soon as possible.”

There are competing considerations set out in the guidance between the need adequately to investigate the accused’s “circumstances and general character” before proceeding and the requirement for expedition.

“A decision whether to prosecute a youth offender is open to judicial review if it can be demonstrated that the decision was made regardless of, or clearly contrary to a settled policy of the DPP. See R v Chief Constable of Kent and Another ex parte L, R v DPP ex parte B [1991] 93 Cr App R 416. The court held that an application for judicial review could be successful if the decision to prosecute was made without any or sufficient inquiry into the circumstances and general character of the accused. This judgment highlights the importance in appropriate cases of obtaining sufficient information about the youth's home circumstances and background from sources such as the police, youth offending service, children's services before making the decision whether to prosecute.

It is essential in all youth offender cases to ensure that all of the public interest matters which give rise to the decision are clearly identified, considered and balanced. A note of the factors identified but rejected or outweighed by other considerations should be made. This demonstrates that the decision to prosecute was taken only after a full review of the case and the background information, including that concerning the suspect provided by the youth offending service, police or local authority. Failure to show that the legal guidance has been followed and properly applied to all the information on the case may result in the decision to prosecute being quashed. See R (on the application of E, S and R v DPP [2011] EWHC 1465 (Admin).”

It follows that the investigation must include, in addition to the normal process of gathering evidence and disclosure, an inquiry or “full review” of the case and the accused. This involves, where relevant, making enquiries of the youth offender service, the police, the relevant local authority and, in the circumstances of this case, the accused’s school.

The public interest test is also expanded in the guidance, at paragraph 4.17(b). A prosecution is less likely to be required if the case could be appropriately dealt with by an out of court settlement. It seems unlikely that an out of court alternative would ever have been appropriate in this case but it was nonetheless a question that had to be investigated,

The court is obliged to ensure that the integrity of the process is preserved and protected by ensuring that nothing is done which would, analysed correctly, amount to an abuse of that process.

There are two categories of abuse which would lead a court to take the exceptional course of staying proceedings.

The second limb of the test was considered in R v Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42 (HL). In that case, there was no question that the accused could have a fair trial, rather was it fair to try him, given the circumstances in which he had been brought within the jurisdiction. It was decided that in exceptional circumstances the court did have a power to stay proceedings if the circumstances, by virtue of delay or manipulation, amounted to an affront to justice.

It is a power to be used “most sparingly”. The test is summarised in the question the court must ask itself, would it be unfair to try the accused because doing so would offend the court’s sense of justice and propriety or undermine public confidence in the criminal justice system by bringing the administration of justice into disrepute.

In R v Maxwell [2010] UKSC 48, the Supreme Court considered the “interests of justice test in the context of the propriety of ordering a re-trial under section s. 7(1) of the Criminal Appeal Act 1968. Lord Dyson observed in general terms at paragraph 19, “The interests of justice is not a hard-edged concept. A decision as to what the interests of justice requires calls for an exercise of judgment in which a number of relevant factors have to be taken into account and weighed in the balance. In difficult borderline cases, there may be scope for legitimate differences of opinion.”

It has been recognised that a failure to follow prosecutorial policy may give rise to an abuse of the process, see R v Adaway [2004] EWCA Crim 2831. In that case the court was dealing with a prosecution in a trades description case arising out of the supply of goods said to carry a “false” description when it was established that there was no evidence of fraud. The judgment is very short and deals only with a prosecution in the face of a failure by the prosecution properly to consider the evidential test before bringing the proceedings.

As is clear from the guidance the CPS are aware that the power to stay may be exercised in cases where their own policy has not been followed R v Chief Constable of Kent and anor ex parte L, [1991] 93 Cr App R 416. In that case there was no or no sufficient enquiry into the young person’s background and circumstances before bringing proceedings.

The High Court in administrative proceedings held that if a prosecution is brought in breach of a “clear and settled policy” the court will still only intervene if allowing the proceedings to continue would bring the administration of justice into disrepute. Jones v DPP [2011] EWC 50 (Admin).

The application of the test in the second limb was carefully analysed in R v Salt and anor [2015] EWCA Crim 662. In that case Lord Thomas CJ set out the considerations to be applied in a case where it is accepted that the trial could be fairly conducted but the prosecution should be allowed to continue, having regard to “its total incompetence and disobedience of the principles of disclosure”.

At paragraph 46 the approach to be taken was set out in terms, “it is necessary to examine more widely the various factors and to balance the public interest in ensuring that those charged with grave crime should be tried and the rights of the complainants against the need to ensure the proper integrity of the criminal justice system and the fairness of any trial.” The adult accused were charged with offences of rape, sexual assault and false imprisonment of two adult women.

The court set against the appalling failings in the disclosure exercise in the case the gravity of the charges and the denial of justice to the complainants. It found that there was “a very strong public interestin these grave offences being tried and the complainants having their allegations determined at trial”.

The judge gave a careful and reasoned ruling on the submissions made to him on the application to stay the proceedings. It is set out in full in paragraphs 17 to 23 of the stated case. Given that it is incumbent on the appellant to show that his decision was “wrong in law” it is important to see how he approached his consideration of the application.

It is a clear application of the principle and authority binding upon the Youth Court. No error of law is relied upon by the appellant.

Miss Mawer’s principal argument, as in the court below, was the delay caused by a lack of expedition on the part of the prosecuting authorities. She argued that the judge could and should have found that the police and CPS could have acted with greater expedition in a case involving such a young accused person. She describes the delay, particularly in the period December 2021 to June 2022 as “inordinate” and the overall delay as “unacceptable”. She submits that it cannot be justified and means that the continued prosecution amounts to an affront to justice.

Further she argues that the review of the case was not conducted by the CPS in line with their own policy. At the time of the abuse argument in the Youth Court reasons for the decision to prosecute were not made available to the accused. She submits that this was case in which diversion from the criminal court could have been considered and the fact that it was decided to continue with the prosecution demonstrates a failure to follow policy.

The appellant was of previous good character, the complaint that there was no reference to the Youth Justice team falls away. Such a reference would simply have been met with the answer that he was not known to the team. In any event, it would have been another step in the process which it is said was taking too long.

The Respondent’s concession at the hearing that the delay was significant and concerning is well made. The tension between the need for expedition and the requirements to carry out extra enquiries in a case involving such a young person was not properly balanced in this case. There is no question but that the appropriate enquiries should have been made, greater speed at the expense of those enquiries would arguably have been a greater failing.

The concession that the trial could be and was conducted fairly is also well made. The complainant’s evidence was video recorded at the start of the investigation and the appellant was interviewed and was on notice from that date that there was an investigation into the allegations. An enquiry of the youth offender team would have been futile; he was not known to that team.

The judge had all these points well in mind and he cannot be said to be wrong in his application of the law. He recognised that one aspect of such a delay is to place too much distance between the incidents and the penalty; that a great deal changes in the life of such a young person over this sort of period of time. He met that factor appropriately by the imposition of a sentence which fully took account of the passage of time and the alteration in the appellant’s circumstances.

He was right to find that there was no failure to follow policy sufficient to amount to an abuse of the process. He pointed out what he described as a logical inference that if the prosecution had not pursued so may enquires the delay would have been a great deal less. That it was its proper application of its own policy which contributed to the delay.

The test for this court is to consider whether it has been established that the decision of the court below was “wrong in law”. No errors of law or approach have been shown. The competing requirements for expedition and detailed enquiries should have been better managed but the delay was not so extreme as to be an affront to the administration of justice.

Ultimately the test of whether the bringing of this prosecution was an afront to public justice is a clear one. What would a right thinking member of the public think, on the one hand there is a delayed but fair trial on the other a complainant who was sexually assaulted by this appellant on a number of occasions is denied the vindication of her rights. Expressed in that way, based on the approach of the Court of Appeal in Salt, the answer to the questions in the stated case is clear. The judge was correct not to stay the case as an abuse of the process of the court.

Accordingly, the appeal is dismissed.