RONALD JOHN BULLOCK & Anor v DIRECTOR OF PUBLIC PROSECUTIONS

This is the judgment of the court, to which we have both contributed.

On 1 March 2015 police received an allegation of rape against RB. They arrested and interviewed him but quickly decided to take no further action. Nevertheless, at the age of 38 and just over a year after the allegation had been made against him, RB took his own life. The Claimants to this application for judicial review are his parents. They seek to challenge the Defendant (“DPP”)’s decision dated 12 September 2019 not to prosecute the Interested Party, being the woman who had made the original allegation of rape against RB.

The provisions of the Sexual Offences (Amendment) Act 1992 apply. Nothing may be reported which could, during her lifetime, tend to identify the Interested Party as the alleged victim of a sexual offence. We refer to her in this judgment as DE.

Permission to bring these judicial review proceedings was granted by Supperstone J on 10 February 2020. Directions made on that occasion included joining DE as an Interested Party. Despite being joined, however, DE has never sought to make any contribution to proceedings. She was not present, or represented, at the hearing before us.

We are very grateful to both counsel – Philip Rule for the Claimants and John Price QC for the DPP – for their excellent written and oral submissions in this sensitive case.

In February 2015, RB worked as a forklift driver at a company to which we shall refer as C. His shifts were from 1pm-9pm. DE was employed as a contract cleaner at two buildings on the same site where C was located, one of which was the office from which RB worked.

Sexual intercourse between RB and DE took place in one of the offices on site on Wednesday 25 February 2015. On Friday 27 February 2015 RB was informed by C that he had been suspended from work.

It subsequently appeared that DE had made a complaint of rape against RB to her employers on Friday 27 February 2015. On Sunday 1 March 2015 she made the same complaint to police. However, DE declined to make a written statement, to be medically examined or to be formally interviewed by police for an ABE (Achieving Best Evidence) video recording.

On Monday 2 March 2015 RB was arrested at his home by police on suspicion of rape, taken to Kidderminster Police Station and interviewed. Prior to interview RB, represented by the duty solicitor, was given advance disclosure of the matter about which he was to be interviewed. The written disclosure contained the following allegation:

During the interview RB produced his phone to police, showing a series of WhatsApp messages exchanged between him and DE in the days and weeks leading up to their encounter on 25 February 2015, as well as messages sent by DE shortly afterwards on the same night and during the next two days. We have seen a full transcript of those messages.

The messages leading up to the encounter between RB and DE on 25 February 2015 are flirtatious and increasingly sexually explicit. Intercourse appears to have occurred at some point between 15.59 and 21.42 hours on Wednesday 25 February 2015, after which the messages continued. On Friday 27 February 2015 RB was suspended from work and by Saturday 28 February 2015 he was evidently unwilling to communicate with DE any further: he responded to a series of messages from DE on 28 February saying “Dnt talk 2me ur a shit stirrer” and then, in his final message to her “Dnt think so u got me the sack so stay away”.

After his interview RB was released on bail. It seems that his mental health difficulties, previously well-controlled, re-surfaced. At the end of May 2015, the police notified RB that no further action would be taken as there was insufficient evidence. He appears to have received a standard letter to the effect that the matter may be reviewed if any further evidence should come to light.

Despite learning that no further action was to be taken, RB’s mental health continued to deteriorate and, in the early hours of 5 March 2016 he took his own life at his parents’ home, where he was then living. His mother found him. Following an inquest, the coroner observed that he had no doubt that RB ultimately took his own life as a consequence of the rape allegation.

We understand how and why RB’s parents and family, in their shock and grief at his death, should have sought answers and “accountability”, as it is put in their application. We do not lose sight of the terrible pain which any parent must experience at losing a child, at whatever age, and particularly under these circumstances.

West Mercia police interviewed DE under caution on 29 March 2018, with her solicitor present. In that interview DE continued to maintain that RB had had sex with her on 25 February 2015 without her consent; she gave an account of what she said had happened, and she was asked about some of the messages which she had sent to RB after they had had sex. She told police that, although she had been due to be married to her partner within 6 weeks of the incident of sex with RB, she “had every intentions of building a relationship” with RB and having an affair with him. However, on the evening in question, although she had been happy to engage in kissing with RB she told police that she had said to him that she did not want to have sex. DE informed police that two days later she had eventually told her partner about the sexual encounter, saying that it had been without her consent. She had also told her mother and was persuaded by them both that she needed to make a complaint to her employers and to police.

At the conclusion of the interview the officers told DE that the papers would be submitted to the Crown Prosecution Service (“CPS”) and that she may be prosecuted for the offence of perverting the course of justice. The matter was sent to the CPS for a charging decision.

On 23 May 2019 RW James, Acting District Crown Prosecutor, informed the Claimants that the decision had been taken not to prosecute DE for any offence arising out of the allegation of rape which she had made to police in 2015. On 24 May 2019 the Claimants’ solicitors wrote to the DPP asking whether the Victims Right to Review (“VRR”) scheme would be extended to them, to enable them to seek a review of the decision not to prosecute DE.

The Claimants were told that the VRR scheme would not be extended to them and on 12 August 2019, the Claimants’ solicitors sent a Letter before Action preparatory to proceedings seeking judicial review of the CPS decision. On 13 August 2019 a Mr English responded, on behalf of the DPP, saying that the matter would be reviewed afresh by a Specialist Prosecutor at the CPS Appeals and Review Unit (“ARU”). There followed an exchange of correspondence under which the Claimants’ solicitors sought disclosure of all the material which the Specialist Prosecutor, Mr David Hurlstone would have available to him when considering his decision. This was refused and accordingly, on 11 September 2019 the Claimants’ solicitors submitted representations without having had sight of any material other than that which they had already managed to obtain through their own efforts.

The Specialist Prosecutor’s decision is dated 12 September 2019 (“the Decision”). Mr Hurlstone confirmed that DE would not be prosecuted, upon the basis that the case against DE failed the evidential stage of the CPS’ Code for Crown Prosecutors. He decided that there was not a “realistic prospect of conviction”.

The Decision went on to explain how and why Mr Hurlstone had arrived at this conclusion. He began by referring to the messages exchanged between DE and RB in the period leading up to 25 February 2015, describing them as “flirtatious…increasingly sexually explicit. It appears that a sexual encounter between the two was anticipated”. He noted that sexual intercourse took place although DE and RB’s accounts of precisely what had happened differed, summarising this as follows:

The Decision went on to refer to flirtatious messages exchanged after the event before dealing with the complaint made by DE, RB’s arrest and the decision of the police to cease the investigation and take no further action, followed by RB’s death and the coroner’s observations concerning the impact on RB of the rape allegation.

The Specialist Prosecutor then moved to deal with DE’s interview by the police on 29 March 2018, recording as follows:

The Decision referred to The Code for Crown Prosecutors together with further CPS guidance, including specific guidance relating to false complaints, before identifying the two main questions as (1) whether there had been an unambiguous complaint and (2) whether there was sufficient evidence to prove that the allegation was false.

As to the first of these, the Specialist Prosecutor concluded that whilst DE did not make a detailed or formal complaint of rape at the time, her account was nevertheless sufficient to enable the police to launch an investigation and to identify and interview RB; accordingly he would proceed on the basis that DE had made an unambiguous complaint.

Having reminded himself of what he described as a “crucial” passage in the CPS guidance (set out at paragraph [33] below), the Specialist Prosecutor proceeded to consider whether there was sufficient evidence to prove that DE’s rape allegation was false. The key reasoning is to be found at pp5-7 of the Decision:

In his Grounds of Challenge and in his skeleton prepared for this hearing Mr Rule raised five grounds of appeal as follows:

As we indicate below, whilst Mr Rule did not formally drop grounds 3 and 4, they were not at the forefront of his submissions at the hearing. His focus before us was on the way in which the Decision dealt with aspects of the evidence, in particular messages exchanged between DE and RB immediately after the incident of intercourse, and inconsistencies in the accounts of the incident given by DE to police at the time, and subsequently.

Before turning to the argument, we review what is required to establish an offence of perverting the course of justice arising from a false allegation of rape, together with relevant prosecutorial guidance.

It was not in dispute that a false allegation of rape is capable of constituting the common law offence of perverting the course of justice. The key element of that offence, as it concerns an allegation of rape, is whether the allegation is false. Before a jury could convict, they would need to be sure that the allegation was untrue; in some cases that might involve a finding that sex had not taken place, but in this case, where it was not in dispute that intercourse occurred, the jury would need to be sure that DE had consented to sex with RB before they could convict her of perverting the course of justice.

By section 3(2)(a) of the Prosecution of Offences Act 1985 the DPP is responsible for the conduct of all (non-exempted) prosecutions brought by the police following investigation.

Under section 10 of the 1985 Act the DPP is required to issue a Code for Crown Prosecutors giving guidance on the general principles to be applied in determining whether, in any given case, a prosecution should be instituted (“the Code”). The section of the Code entitled “General Principles” includes the following:

The second strand of the Full Code Test, namely the Public Interest Stage, is not relevant to our decision on this application, since the Decision in this case was concerned solely with the first, evidential, stage. Having decided that the evidential test had not been met, the Specialist Prosecutor did not need to, and did not, go on to consider the public interest stage.

The CPS has issued further guidance for prosecutors specifically addressing prosecutions in cases of false allegations: “Guidance for Perverting the Course of Justice and Wasting Police Time in Cases involving allegedly False Allegations of Rape and/or Domestic Abuse” (“the False Allegation Guidance”). The False Allegation Guidance contains the following material directions:

The independent role of the DPP and the constitutional principle of the separation of powers means that the courts will intervene very rarely in prosecutorial decisions. The position was summarised recently by the Divisional Court in R (Monica) v DPP [2019] QB 1019 (Lord Burnett, CJ, and Jay J), [44]-[47], where the court distilled the following principles, at [46]:

As we have indicated, Mr Rule’s principal focus in argument was upon the evidential material which underpinned the Decision. He addressed grounds (1), (2) and (5) together in arguing that the Decision had failed correctly to appreciate the facts and evidence, in particular the evidence of contemporaneous messages, inconsistencies in the accounts given by DE and what he termed the “inherent implausibility” of relevant aspects of her later interview account.

In relation to Ground 2, in his written submissions Mr Rule suggested that the decision-maker had incorrectly applied the Full Code test, wrongly usurping the function of the jury to hear the evidence and make assessments of credibility. It is fair to say, however, that he did not press this line of argument at the hearing.

Mr Rule’s main attack was directed to the treatment in the Decision of the post-incident messages, in particular these messages from DE to RB sent shortly after they had had intercourse:

Mr Rule submitted that the Specialist Prosecutor wrongly characterised these messages as merely suggestive of consent, rather than as proof of consent by means of contemporaneous messages from DE’s own mouth which directly contradicted her later account of non-consensual sexual activity. Further, when considering myths and stereotypes, the Specialist Prosecutor had not dealt with what Mr Rule called the “flat contradiction” in the content of the messages.

Moving to the police interview of DE, Mr Rule emphasised the absence of any plausible explanation given by DE when confronted with the above messages. He pointed to inconsistencies and obvious implausibilities in what she said to police in interview as follows:

Mr Rule submitted that the Specialist Prosecutor had failed properly to acknowledge or analyse the effect of the above inconsistencies/implausibilities. Moreover, whilst accepting that motive is not a necessary element of the offence, Mr Rule argued that motive was of evidential significance and that the messages showed DE to have made a false allegation against RB for one of the following reasons: revenge for breaching her request to keep the sex between them a secret, protecting herself from discovery of her infidelity and/or wider knowledge of it reaching her mother at work (since her mother worked at the same place) and/or her fiancé. The Specialist Prosecutor had wrongly ignored the strength of this evidence, Mr Rule submitted.

Referring to the passage in the False Complaint Guidance highlighted above, Mr Rule submitted that taking the evidence of what DE said in the messages at the time, combined with inconsistencies in her account given to police, her account of not having consented to sex with RB was simply not a reasonable possibility. It was Wednesbury unreasonable, he argued, to read the messages as consistent with a case that the rape allegation was true. Mr Hurlstone’s characterisation of the messages as “not unequivocal admissions (of consensual sex)” was a finding that was not properly open to him in the light of their content, taken together with the implausibility of DE’s explanation for them.

Although references to Article 2 and 3 appeared in Mr Rule’s skeleton argument dealing with Ground 3, it is fair to say that he did not press his submissions on the ECHR at the hearing. Nor did he pursue Ground 4, the lack of disclosure point, in view of the earlier interlocutory decision in this case made by a different court (Dame Victoria Sharp, P, and William Davis J at [2020] EWHC 2259 (Admin)), inter alia refusing to make an order for further disclosure.

Mr Price, for the DPP, responded succinctly. In a case such as the present, he said, which turned on irreconcilable accounts given by the only two parties to a sexual act, the decision turned on the analysis of the strength of the evidence of the text messages, and DE’s explanation of them. The CPS lawyer had assessed those messages, had applied the correct test, and in clear and rational reasoning he had come to the conclusion that the evidential test in the Code had not been met.

Mr Price stressed that the assessment involved the exercise of expert prosecutorial knowledge and jury trial experience, in circumstances where DE had consistently maintained that she had not consented to sex with RB on 25 February 2015.

Mr Price pointed to the special considerations which apply to the case of a sexual complaint. Referring to the case of Hodge [2018] EWCA Crim 2501 he accepted that there was no rule by which a jury must be directed to beware erroneous assumptions when assessing evidence of a defendant accused of making a false complaint of rape; but nor was there, he said, a rule that such a defendant may not have the benefit of any such direction. It would be for the trial judge to decide in each case. That being so, he suggested, it would have been wrong for the Specialist Prosecutor not to have taken such a direction, and its effect upon the jury’s deliberations, into account when considering the evidential test in the Code.

Mr Price submitted that what Mr Rule had characterised as discrepancies in the accounts given by DE were not straightforwardly to be identified as such, given that DE had declined to make any formal statement or give an ABE interview in 2015 when she first approached police. There was no record, therefore, of precisely what she told police, beyond what was put to RB at the time he was interviewed; if DE did not now accept that she had said what the police put to RB then there would be no record to contradict her.

In his written submissions Mr Price dealt shortly with Ground 3 and Articles 2 and 3 of the ECHR by pointing out that faithful compliance with the Code suffices to discharge obligations of a prosecutor under the ECHR, referring to the case of R (da Silva) [2006] EWHC 3204 (Admin).

Prosecutorial decisions will rarely be interfered with by the court, and then only where there is an obvious mistake. An error of law, such as that identified in R (F) v DPP [2014] QB 581 is one example; another, more recent one, is to be found in the case of R (Torpey) v DPP [2019] EWHC 1804 (Admin) where the court found that statements made by the CPS lawyer in his decision were “not easily identifiable in the evidence” and that the decision, taken as a whole, gave rise to a real concern about the care, thoroughness and detail which had gone into it.

Mr Rule’s grounds and written submissions had suggested an error in the way the Specialist Prosecutor had approached the evidence, arriving at his own view rather than considering what view a jury might properly take. However, Mr Rule was right not to press this line of argument at the hearing; taking the decision as a whole it is clear to us that the CPS lawyer approached his task in accordance with the prosecutorial guidance to which we have referred above.

We considered whether there was a possible tension between the Code test at para 4.7 – “..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 alleged” - with the guidance appearing at para 13 of the False Complaint Guidance, viz “If the evidence is such that the original allegation might reasonably be true then there is not a realistic prospect of conviction and no charge should be brought”. We have concluded that the passage at para 13 of the False Complaint Guidance is more properly to be seen as a refinement of the general balance of probabilities assessment, adapted to a case of false complaint, reflecting a prosecutorial recognition that if the original complaint might reasonably be true then a jury properly directed as to the burden and standard of proof must necessarily acquit. When further explored, Mr Rule’s criticism was not so much that the Specialist Prosecutor had applied the wrong test, but rather that no prosecutor could, on the evidence, have considered DE’s account of non-consensual sex a reasonable one.

We consider that Mr Rule was also right not to pursue his Ground 3 reliance on Articles 2 and 3 of the ECHR. We agree with Mr Price that this point stands or falls with the question as to whether there has been full compliance with the Code. It has never been the Claimants’ case that the provisions of the Code itself give rise to breaches of the ECHR. We say no more about Ground 3.

The real focus of Mr Rule’s case, therefore, was upon the content of the CPS lawyer’s reasoning and his approach to the evidence, in particular to the contemporary text messages and inconsistencies between the complaint as initially put by the police to RB, and three years later when DE was asked about it in interview, together with inherent implausibilities in that latter account. Mr Rule contended that there was an insufficiently detailed engagement with the evidence in the Decision and that, had the Specialist Prosecutor analysed it more closely as he should, then he could not have reached the view that DE’s account of not having consented to intercourse was a reasonable one, on the evidence.

We see some force in Mr Rule’s point that the text messages which DE sent after the sexual encounter appear directly to contradict her account that the sex was non-consensual, and that the Specialist Prosecutor’s characterisation of them in his Decision as “capable of suggesting” consent underplays to some extent the strength of that evidence. But as Mr Price pointed out, the issue of consent thrown up by these messages required the Specialist Prosecutor to go on and consider DE’s explanation for those messages, which he then proceeded to do. Unfortunately, in her interview, instead of confronting her directly with the meaning of the messages to which we refer above, police asked instead how the messages made DE feel, and failed thereafter to revert, so there was no clear response by DE in interview for the Specialist Prosecutor to consider.

We also considered whether the Specialist Prosecutor’s reasoning suggested that he had wrongly restricted his assessment of the impact of the messages as showing a lack of confrontation, or challenge, from DE, rather than more directly identifying them as indicating positive consent, thereby missing their full importance within the evidence as a whole. The references on p.3 of the Decision to “ostensibly friendly demeanour” and the discussion about myths and stereotypes in the following paragraph tended to support Mr Rule’s argument. However, on the next page of the Decision the Specialist Prosecutor concludes that “the post incident text messages exchanged are not unequivocal admissions to having had consensual sex”, indicating that he had considered the messages with that question – whether the messages provided direct evidence of consent – well in mind. Taken as a whole, therefore, we are unable to say that the Specialist Prosecutor failed to consider the full import of the messages in relation to the issue of consent. Nor are we prepared to say that, taking the text messages together with the account which DE gave in interview as to why she continued to correspond with RB following their sexual encounter, the lawyer was obviously wrong in his assessment of the messages as “not unequivocal admissions”. When we asked Mr Rule whether it was out of the question that a jury could find that DE was embarrassed and had sent the messages to try to maintain the appearance of normality he acknowledged that it was not, although he maintained his submission that the message content was consistent only with consent.

We think Mr Price was right to say that the CPS lawyer would have been expected to consider the effect upon a jury of a myths and stereotypes direction, indeed we did not understand Mr Rule seriously to suggest otherwise.

There are inconsistencies between the account as put to RB in interview and as given to the police by DE when she was interviewed 2 years later. Chief amongst these is the difference between the account of being forced upstairs and forced to kiss before having non-consensual sex, as put to RB in interview, with DE’s later account in interview of intending to embark on an affair and of meeting RB at work that day with a view to intimacy, before going upstairs with him and kissing consensually.

We bear in mind the principles summarised in the extract from the case of Monica set out above, in particular that a prosecutor is not required to refer to every single piece of evidence. Nevertheless, it would have been preferable for the Decision to have identified and dealt with the inconsistencies in DE’s account in more detail; the reasoning in this respect is rather brief. But although the Decision omits specifically to identify any individual discrepancy, the Specialist Prosecutor does refer to representations submitted to him in writing by the Claimants’ solicitor. We have seen and considered those representations, in which, as might be expected, each of the inconsistencies now relied upon by Mr Rule was identified and brought to the attention of the Specialist Prosecutor, along with points on the implausibility of DE’s account given to police. In those circumstances, although the reasoning in the Decision is brief, we are unable to find that the Specialist Prosecutor did not properly consider the effect upon a jury of the inconsistencies and implausibilities. Moreover, as Mr Price pointed out, the evidential value of inconsistencies between the account which DE gave to the police in 2015 as against her account given in interview three years later has to be considered in circumstances where there was no signed witness statement made by DE, nor an ABE interview with her, thus no formal recording of what she did say in 2015, with which she could be confronted at any trial.

We also agree with Mr Price that the evidence from the GP record of when DE’s periods started could not have justified re-opening the decision. The effect of this additional piece of evidence could not in our view have altered the Specialist Prosecutor’s conclusion regarding the impact upon a jury of evidence of inconsistencies in DE’s account generally.

Thus, although we regard some of the reasoning in the Decision to be rather briefly expressed it does not prevent us from identifying how the Specialist Prosecutor’s reasoning was founded in the evidence, nor is it such as to give rise to a concern that his approach lacked care or thoroughness, as the court found in Torpey. As Mr Price rightly pointed out, there will be cases where reasonable prosecutors may come to different decisions. We are unable to find that the decision in this case was so unreasonable as to fall outside the wide margin of prosecutorial discretion. This is not one of the rare cases where it can clearly be said that the decision not to prosecute was wrong.

For these reasons the Claimants’ application must be dismissed.