D, R (On the Application Of) v White

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.

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:

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.

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 that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It 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 defendant of the charge.”

(Italics added)

Prior to the establishment of the VRR scheme, a decision by the Defendant not to prosecute was susceptible of judicial review. In R v DPP, Ex p Manning [2001] QB 330, a case concerning a death in custody, Lord Bingham of Cornhill CJ (as he then was), giving the judgment of the Court, said this:

“ 23. Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review….. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no one else….. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial….. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of 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 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. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied. ”

Later in the judgment (at [37]), Lord Bingham posed the question as to whether the reasons for the decision not to prosecute “were in accordance with the Code for Crown Prosecutors and capable of supporting a decision not to prosecute”. In the event, the decision was quashed; a failure to take account of relevant facts had vitiated the decision. The Court emphasised (at [42]) that the effect of its decision:

“ ….is not to require the Director to prosecute. It is to require reconsideration of the decision whether or not to prosecute…. ”

The VRR scheme was established in 2013. As para. 8 of the VRR guidance (July 2014) makes clear, the “right” referred to in the context of the scheme is the right to request a review of the decision; it is not a guarantee that proceedings will be commenced. A decision not to bring proceedings is a “qualifying decision”, within para. 9 and thus subject to the scheme. Where there is a request for a review, the CPS will first seek “Local resolution”: para. 23. In the present case, Ms Stringer’s involvement amounted to an attempt at local resolution. Where, as here, local resolution is unsuccessful, the decision will be subject to an independent review by the Appeals and Review Unit: para. 29. In the present case, this procedure entailed Ms Brown’s review and, perhaps unusually, a further review – namely that of Ms Verma. The independent review comprises a reconsideration of the evidence and the public interest; the new reviewing prosecutor approaches the case afresh “to determine whether the original decision was right or wrong”: para. 30. As para. 33 underlines, in order to overturn a decision not to prosecute, the reviewer must be satisfied that the earlier decision was wrong in applying the evidential stage of the Full Code Test.

In R(L) v DPP [2013] EWHC 1752; [2013] 177 JP 502, Sir John Thomas P (as he then was) began by summarising the position as to seeking judicial review of a decision not to prosecute, prior to the VRR scheme. The grounds upon which challenge could be made were, he said (at [4]), very narrow:

“ (1) because there has been some unlawful policy; (2) because the Director has failed to act in accordance with his own set policy; or (3) because the decision was perverse; that is to say it is a decision that no reasonable prosecutor could have reached.”

Such applications would succeed only in very rare cases (at [5]). That was for the “good and sound constitutional reason” (at [6]) that decisions to prosecute were entrusted under our constitution to the prosecuting authorities.

Turning to the proposed VRR scheme (at the time, about to be introduced), Sir John Thomas indicated (at [12]) that no application for judicial review should be brought until the CPS had the opportunity of conducting a further review under the scheme. Moreover, if there had been a review in accordance with the VRR scheme, then (at [13]), “…the prospect of success [in a subsequent claim for judicial review] will….be very small.” A little later in the judgment, Sir John Thomas added this:

“ 17. It must be recalled that the likelihood of success in such cases will be very very small, given the constitutional position of the CPS.

18.

I am not saying that there will not be such a case, but the chances of a claimant succeeding in them….are likely to be small.”

Pausing there, Mr Jacobs, for D, sought to submit that there was a difference between Lord Bingham’s test for challenging a decision not to prosecute and Sir John Thomas’. Mr Jacobs argued that Lord Bingham’s test was wider; it was not confined to “perversity” but extended to whether the reasons “were capable” of supporting a decision not to prosecute. I put to one side the conundrum which would arise as to which decision (or set of reasons) we would be bound to follow were there a difference between Lord Bingham and Sir John Thomas’ approaches because, for my part, I detect no material difference between them. As it seems to me, for a challenge to a VRR decision not to prosecute to succeed, either perversity or, at the very least, some other established public law ground of challenge must be made good: for instance, irrationality, Wednesbury unreasonableness, or a failure to take relevant considerations into account, as in Manning itself; see too: R (Oliver) v DPP [2016] EWHC 1771 (Admin), at [42]. Realistically, if the decision is one as to which reasonable prosecutors may disagree, the possibility of any public law challenge succeeding is dramatically reduced. Plainly too, the mere fact that this Court might have taken a different view of the matter, would be insufficient to entitle a challenge to the prosecutorial decision to succeed. In assessing challenges based upon perversity, irrationality, Wednesbury unreasonableness, failure to take relevant considerations into account or taking irrelevant considerations into account, the Court will proceed with caution - having well in mind that there will already have been a VRR scheme review and that the decision not to prosecute is vested in the prosecutor not the Court, a matter of constitutional importance: see too, R (Chaudhry) v DPP [2016] EWHC 2447 (Admin), at [14] – [21] and [34] – [38]. Furthermore, if the VRR scheme review reveals an error in reasoning (for example, by taking irrelevant considerations into account) but the same decision must have been arrived at in any event, then, in all likelihood, the challenge will fail.

These views are reinforced by R(S) v Crown Prosecution Service [2015] EWHC 2868 (Admin); [2016] 1 WLR 804. There, the initial decision of the CPS was not to charge the defendant. That decision was reversed following a review under the VRR scheme. The defendant then sought to challenge the decision to prosecute. Citing L (supra), Sir Brian Leveson P reiterated (at [15]) that the potential grounds of challenge were narrow and that such challenges would succeed only in “very very rare cases”.

For present purposes, I am prepared to assume (without deciding) that there is (as urged by Mr Jacobs) potentially a further ground of challenge available in this area: namely, mistake of fact giving rise to unfairness. The essential ingredients of this ground of challenge appear from E v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044, per Lord Phillips of Worth Maltravers MR (as he then was), at [66]:

“ In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are….. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

For D, Mr Jacobs based his challenge on two grounds: first, “irrationality”; secondly, mistake of fact.

As to irrationality, Mr Jacobs submitted that the challenge engaged fundamental rights, thus requiring “more rigorous scrutiny” and less deference to the judgment of the decision-maker. The test for fairness entailed consideration of the perception of the person concerned – here, D. Basing himself on a close analysis of the six points highlighted by Ms Verma, Mr Jacobs contended that her decision was materially flawed; the points upon which she had relied were irrational or, at the least, comprised irrelevant considerations. Mr Jacobs said in terms that he was not saying that Ms Verma’s decision was perverse; he accepted that another prosecutor might have decided not to prosecute. Instead, Mr Jacobs posed the question: were Ms Verma’s reasons capable of supporting the decision not to prosecute? In his submission, the answer to that question was “no” and the challenge should succeed. It could not be said that the same decision must have been reached regardless of the errors in the reasoning. It was neither here nor there that, ultimately, the decision might be the same.

Turning to mistake of fact, this ground went not to reasonableness but to fairness; there was still less reason for deference. The mistake was to be found in the fifth point highlighted by Ms Verma (set out above). The premise was simply incorrect; D had not identified 11 people she believed to be victims. The mistake had previously been made by Ms Stringer and it was unfortunate that it had been perpetuated by Ms Verma. Mr Jacobs submitted that the mistake was uncontentious, material and gave rise to unfairness towards D. It rendered Ms Verma’s decision unlawful.

For the Defendant, Mr Hallam QC did not accept that fairness hinged on the perception of any one party to the proceedings; it was to be objectively assessed by the Court. Ms Verma’s decision had been focused, careful and fair.

As to the “irrationality” challenge, the six matters highlighted had been no more than examples. They formed only part of Ms Verma’s overall decision. There were fundamental issues at the heart of D’s case:

“ They were that the Claimant’s account was unsupported, that the Claimant had made other allegations which were not proceeded with, and that people whom the Claimant suggested could provide support did not provide any support and to an extent undermined her.”

Against this background, Ms Verma’s decision that there was not a realistic prospect of conviction was not irrational. It was a decision to which a reasonable prosecutor could properly come. Even if there were any errors in her reasons, they were not such as to render her decision making so flawed so as to warrant allowing the application.

Mr Hallam did not accept that there had been a mistake of fact, as alleged on D’s behalf. The e-mails relied upon were unclear as to who had been put forward as victims. But the underlying point in any event remained the same: all of those identified failed to support anything D had said. Her allegations thus remained wholly unsupported.

Overall, as Mr Hallam put it:

“ The essential factors underlying …[Ms] Verma’s conclusion were all ones to which a reasonable prosecutor could have regard, and which could inform a reasonable prosecutor’s decision. This was a case which was in essence one person’s word against another, the Claimant’s account did contain vagaries, it did relate to a very old allegation, it was an account that relied solely on her word because no other witnesses were found who provided supporting evidence for the events she described, the location of the alleged offences appeared to be inconsistent with the sorts of incidents that were alleged to have taken place within it, and there was material which would have had to have been disclosed which potentially undermined the Claimant’s credibility….. ”

Taking all those factors together, Ms Verma’s decision – that the evidential test was not satisfied – was not unreasonable. Moreover, unless it could be shown that no reasonable prosecutor could have reached the decision made, her decision could not be successfully challenged. This was not one of those exceptionally rare instances where a challenge of this sort was entitled to succeed.

It is readily apparent that D has come to these proceedings with strong emotions. That is understood. However and disappointing though it will be for D, I can see no basis on which Ms Verma’s decision – that there was not a realistic prospect of conviction – can properly be impugned. My reasons follow.

(1) Irrationality: I take as my starting point the incontrovertible factual features of the case, providing both the context and foundation for Ms Verma’s decision:

Against this background, Ms Verma’s decision cannot be characterised as perverse and, realistically, Mr Jacobs disclaimed any contention that it was. In so doing, Mr Jacobs accepted that another prosecutor might also, reasonably, have decided not to prosecute. It seems to me necessarily to follow that D could not succeed with any irrationality or Wednesbury unreasonableness argument.

What remains is the submission that Ms Verma took irrelevant considerations into account, in the six highlighted “examples” contained in her review. I am unable to accept that she did:

Pulling the threads together, the highest D’s case can be put under this heading is that another prosecutor might have taken a different decision. It follows that arguments based on perversity, irrationality or Wednesbury unreasonableness necessarily fall to the ground. Moreover, as discussed, D has failed to demonstrate that Ms Verma’s review was vitiated by taking irrelevant considerations into account; arguments as to the weight to be accorded to various features of the case are neither here nor there. Accordingly, Mr Jacobs’ first ground cannot satisfy the test, whether as formulated by Lord Bingham (in Manning) or Sir John Thomas in L. Applying Manning, the reasons given by Ms Verma were in accordance with the Code and, for my part, amply capable of supporting a decision not to prosecute.

For completeness:

(2) Mistake of fact: As already indicated, I proceed on the assumption (in D’s favour) that this ground, if made out, is capable of founding a claim for judicial review of a VRR scheme decision not to prosecute. However, in my judgment, there is less to this point than might initially meet the eye.

First, as is clear from Mr Hallam’s argument, the alleged mistake is not conceded.

Secondly, it is therefore necessary to look at the origins of the alleged mistake. D’s contention is that she had not identified 11 people she believed to be victims so that her credibility was not undermined by the fact that none of those contacted lent support to this suggestion. Instead, D had done no more than supply a list of those who might be able to assist the Police with their inquiries. Accordingly, the point numbered v) in Ms Verma’s review was based on a mistake of fact, giving rise to unfairness towards D. The matter turns on an e-mail exchange between D and Mr Wood of Essex Constabulary in November 2014.

As it strikes me, the e-mails are not at all clear. But it is plain that in both D’s e-mails of 12^th November, 2014, timed 20.54 and 13^th November, 2014, timed 15.51, some of those to be contacted are put forward as victims. In the first of those two e-mails, a named person is identified (“She acknowledged being abused then turned on me”). In the second, in the final paragraph, the inference is that a number of those to whom D has already referred were victims of abuse but might be reluctant to admit it – hence D’s suggestion of a cautious approach to them by way of an “initial ice breaker”. It is also relevant that in her e-mail of 12^th November, 2014, timed 20.42, a number of those identified by D were said to “have acknowledged knowing he [the IP] did things”.

In the circumstances, I am unable to accept that there was here a mistake of fact as alleged by D. While Ms Verma may have over-stated the matter by saying “you did eventually give police details of 11 other people you believed had been abused by the suspect”, the essentials of Ms Verma’s conclusion were well-founded. Some of the seven people traced by the Police had been advanced as victims of abuse by the IP. In any event and of central importance, none of those put forward lent any support to D’s allegations.

In my judgment, Ms Verma’s overall assessment is not one that can be properly challenged or set aside. D’s case was carefully and fairly considered, albeit the outcome was one which has disappointed her. As explained by Ms Verma, D’s case did have undoubted weaknesses. Ms Verma was entitled to reach the conclusion that it did not satisfy the evidential test and that the earlier decision not to prosecute had not erred in its application of that test. Ms Verma’s decision was not vitiated by any error of public law or mistake of fact.

For the reasons given, I would dismiss the claim.

I agree.