Jessica Rooks, R (on the application of) v Crown Prosecution Service

Jessica Rooks brings a claim for judicial review to challenge the decision taken to discontinue a prosecution against her former partner. During the course of those proceedings Ms Rooks was herself arrested on suspicion of sending malicious communications and stalking against that same man. Additionally police seized a stun gun and a CS gas canister. Since the hearing of this claim a decision has been taken to discontinue the prosecution against her.

The Defendant is the Crown Prosecution Service (“CPS”). Ms Rooks’ former partner, Patrick Flaherty, has not been joined as an interested party.

Permission to bring this claim was refused on the papers but, in the absence of an Acknowledgement of Service or attendance by the Defendant, permission was granted at an oral renewal hearing.

The issue in these proceedings is whether the decision not to continue the prosecute is legally flawed, by virtue of an error of law in public law terms, in circumstances which would permit this court, notwithstanding the respective constitutional roles of the court and the CPS in the administration of justice, to interfere.

The decision under challenge, (“DUC”), was set out in a letter dated 1 February 2022, in which the CPS upheld its earlier decision to offer no evidence against Patrick Flaherty. That decision was taken following consideration of the case at the evidential stage of the test under the CPS Code for Crown Prosecutors, (“the Code”). The decision to offer no evidence resulted in a not guilty verdict being recorded against Patrick Flaherty.

On 4 January 2022 Ms Rooks, (“the Claimant”) had sought a review of the original decision under the Victims’ Right to Review scheme, (“VRR”).

The Claimant seeks a declaration that the decision of 1 February 2022 is unlawful and an order quashing that decision and consequential orders as to costs.

The Claimant asserts that the DUC was based on an error, namely that the Defendant misdirected itself as to the elements of self-defence by failing to consider the objective limb of the test and, as a consequence failed to ask itself the right question. The Claimant submits that this was an error of law. The Defendant answers that contention by asserting that this case involved making an assessment of, and a decision about the primary facts, which is squarely within the remit of the decision maker.

It is accepted by the Claimant that the Defendant was entitled to make an assessment of her credibility in reaching its decision but she argues that even if her credibility could not be relied upon, there were other objective factors that meant the DUC is flawed.

The Claimant and Patrick Flaherty had been in a relationship for some time. Mr Flaherty had a cottage in Burton Bradstock in Dorset and the couple were there on the evening of 22 August 2020, both had been drinking. An altercation occurred. The Claimant telephoned the police and they came to the property, as they approached they heard the Claimant shouting “get off me”. The officers were using body worn cameras and the footage shows that the Claimant was distressed. She was later photographed and found to have bruising and swelling to her face and head, her fingernails were damaged including injuries to the nail bed as the acrylic nails she was wearing had been damaged. Further bruising developed over the next few days to her left ear, her left elbow, wrist and arm and her right foot and knee.

The police called an ambulance. Her injuries were documented at the hospital as multiple bruises to the right side of her face, abrasions to the right forehead and cheek, further bruising inside the right ear, bruising to the left elbow, soreness and bruising to the upper limbs, neck pain, shoulder pain, blurred vision and haemorrhage to the right eye. There is no dispute that the injuries would amount to actual bodily harm as defined in s.47 of the Offences Against the Person Act 1861.

Mr Flaherty was arrested, taken to the police station and interviewed under caution. He gave an account of an argument beginning on their arrival at the property. He said that the Claimant had kicked and thrown domestic items around the property; a bin, an empty container, a sponge pad and a dishcloth. He said that she had thrown a chopping board which had caught his head in a glancing blow causing a graze and swelling to his forehead. He told the police that he “had grabbed her” by the arms “to calm her down”. His account was that there had been “a bit of a wrestling session in the kitchen”. He claimed not to remember how or why a number of things happened including whether he had hit or punched her and why he had followed her upstairs. In essence he claimed that she had been aggressive and that he had acted in reasonable self-defence.

The Claimant was invited to make a witness statement in support of a prosecution but refused.

Mr Flaherty had no criminal convictions.

At that stage it was considered that no prosecution could be brought in the absence of a statement from the Claimant.

On 18 November 2020 the Claimant made an emergency call to the police again alleging acts of violence against her by Mr Flaherty. She also gave the police a recording she had made of a telephone call between her and Mr Flaherty on 2 October 2020 (the transcript shows the date as 2 December 2021). In a redacted transcript of the recording, available to the court, Mr Flaherty acknowledges causing injury to the Claimant and she says that she put considerable effort into persuading the authorities not to prosecute him.

She provided two witness statements, alleging a number of acts of violence by Mr Flaherty on different occasions, this time she gave evidence in a statement about the incident on 22 August 2020.

Mr Flaherty was arrested again and the allegation of 22 August 2020 was put to him again, the recorded telephone call was played to him. He gave no answer to the majority of questions but said that the injuries caused to the Claimant on that date had occurred as he had tried to “pacify” her. In other words he accepted causing the injuries but did not accept that he had assaulted her.

The police referred the incident of 22 August 2020 to the Defendant and on the evidence at that stage a charge of Assault Occasioning Actual Bodily Harm, (“ABH”), contrary to s.47 of the Offences Against the Person Act 1861, was authorised. Mr Flaherty pleaded not guilty and the matter was set down for trial by jury in February 2022. The police decided not to take any further action in relation to any other allegations made against him by the Claimant.

On 28 July 2021 the Claimant was arrested on suspicion of stalking and sending malicious communications. A number of Mr. Flaherty’s friends and family had received photographs of the Claimant showing injuries and annotated to describe the fact that he had caused them. Additionally, women with whom he had been in contact online received anonymous messages telling them that he had been arrested for an assault.

When the Claimant was arrested, police seized a telephone, a number of SIM cards, a CS gas cannister and a stun gun. When she was interviewed she gave an account in which she accepted possession of the stun gun and gas canister, she said that the seized telephone and SIM cards had been posted through her letter box by an unknown third party and she accepted that she had shown the photographs of her injuries to others in a local public house.

She was not charged at that stage and the police continued to investigate and referred the matter to the Defendant.

On 15 June 2021 Natalie Cheesman reviewed the position in the case against Mr Flaherty in the light of all the material then available to her. She identified further material that she would require before reaching a final decision. She had been asked to make a decision about charging: in particular what charge should be brought against Mr Flaherty. It was described as a “Full Code Test”. She identified the case as being one involving allegations of domestic violence and set out that she had applied the Domestic Violence Policy and legal guidance on domestic violence cases.

In that first review Natalie Cheesman set out the inconsistencies in the Claimant’s account of the incident of 22 August 2020, she considered the independent evidence of her injuries in detail. She considered the internal inconsistencies in the Claimant’s account, such as the length of time that the incident had taken and the nature of her injuries given the violence she described. These inconsistencies were not considered fatal to bringing a successful prosecution but they were recognised as significant in the assessment of the strength of the case.

More importantly, in the context of this hearing, she did consider the question of whether the force used was excessive. “I am of the view that even if this was the case (Mr Flaherty’s account that he simply acted to defend himself and restrain the Complainant) the force used in the circumstances, when looking at the injuries was excessive.”

In her second review on 13 July 2021 Natalie Cheesman listed the additional material provided to her. She recommended that a charge of assault occasioning ABH should be brought against Mr Flaherty. She said, relying on the evidence of injury, “In relation to the incident itself I find on balance the evidence of the victim to be reliable”. She reached that view despite her findings about “issues with the V’s credibility” about the number of blows, the time the incident lasted and other matters relating directly to her account of the incident.

Again, importantly, she considered the question of whether the force used was excessive. She found that, in all the circumstances, “the force used in the circumstances, when looking at the injuries was excessive”.

The Claimant was arrested on 28 July 2021. She admitted possession of a gas cannister and a stun gun and gave an explanation about forgetting she had them after a trip to the USA. She gave an account of an unknown third person posting the telephone and SIM cards, which had been used to send messages about Mr Flaherty, through her letter box. She also gave inconsistent accounts of where she had been when some of those messages were sent. Her account was believed to be in direct conflict with the evidence in her case.

On 14 September 2021 another review of the case against Mr Flaherty was carried out by Dan O’Neill, he considered the other allegations that the Claimant had made against him. He did not have the information arising from the Claimant’s arrest and interview on 28 July 2021.

He discussed the case with the Police Officer in charge of the case and his manager. He said, “This is a difficult case due to undermining features that surround the 22/8/20 (sic). The question is how far these features impact upon the credibility of the complaint made?” This is a reference to the point raised in the earlier reviews about the internal inconsistencies in her account.

He also considered the support provided for the complaint in the evidence of the injuries.

Another review took place on 22 November 2021, again carried out by Dan O’Neill, who had received the information about the Claimant’s arrest on 28 July 2021. He said he was carrying out another review in light of that material which he described as having two aspects. The first was a concern about an apparent breach of bail, that seems to have been incorrect and irrelevant. The second is the issue of the Claimant’s arrest, in particular her account in interview which was said to be inconsistent with the evidence. Her “denial now goes directly to the credibility of the complainant”. The CPS had received an opinion from Counsel setting out the view that there was no longer a realistic prospect of conviction.

On 22 November 2021 the Defendant informed the Claimant in a telephone call that a decision had been taken not to proceed with the prosecution against Mr Flaherty in light of all the information available. That was followed by a letter dated 22 November 2021 (and/or another in the almost exactly the same terms on 23 November 2021 signed by Dan O’Neill) from the CPS to her.

In response to the decision communicated by the CPS, the Claimant instructed her present solicitors, Gold Jennings, and they wrote to the CPS on her behalf on 4 January 2022 requesting a review of the decision not to proceed under the VRR.

A complaint was also made that the case had been stopped on 23 November 2020 which meant that the Claimant was unable to request a review before the case was concluded, as she had not received the letter by then. It was further stated that the decision was unreasonable in light of the evidence of the injuries and the contents of the recorded telephone call, which it was suggested amounted to an admission of assault by Mr Flaherty. It also suggested that there was bad character evidence which should have been taken into account. Mr Flaherty had no convictions recorded against him. It dealt with the question of the Claimant’s credibility in the following way,

On 1 February 2022 the CPS responded to the Claimant and her solicitors, it is a lengthy and detailed letter from Sophie Stevens, the Deputy Chief Crown Prosecutor in Wessex. She had carried out a review of the decision as requested. She conceded that the earlier letter did not “adequately explain” how the decision was reached, she apologised for that and explained that she has considered all the material in the case and was of the view that the decision taken was correct. She set out her reasoning as follows. As this is the DUC, I have included almost the entire letter,

The Claimant’s solicitors responded on her behalf on 1 April 2022 by sending a letter before action warning of a proposed claim for a Judicial Review of the CPS decision to offer no evidence against Mr Flaherty. The letter set out the factual basis to be advanced in any claim and summarised the evidence against Mr Flaherty as had been done previously, namely, the evidence of injury, the recorded telephone conversation and the alleged “bad character” evidence. In particular they repeated that the Claimant was capable of being a credible witness as said as follows,

The letter criticised the DUC for failing to consider the “corroborative” material, for taking into account “immaterial” matters and for wrongly concluding that issues about the Claimant’s credibility would not be resolved by the presence of such corroborative material.

The Defendant did not accept the criticisms and maintained that it had considered all the relevant matters and reached a decision which was open to it as a prosecuting authority.

By s. 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.

Domestic Abuse. Legal Guidance Evidential test

The key principles can be summarised as follows:

The CPS website provides guidance for members of the public who seek a review of a decision taken to discontinue a prosecution. There is no right to have that decision over-turned. “The Victims’ Right to Review (VRR) scheme enables victims to seek a review of certain CPS decisions not to start a prosecution or to stop a prosecution. It is an important safeguard in England and Wales in relation to the rule of law. The scheme was launched in 2013 and gives effect to the principles set out in the case of Killick (R v Christopher Killick [2011]). It is also an entitlement included in the Code of Practice for Victims of Crime.”

In R v DPP ex parte C [1995[1 Cr App R 136, Kennedy LJ at [138E], re-iterated the long established principle that this court will only use the power to interfere with such decisions “sparingly”.

As Sir John Thomas PQBD said in L v DPP & Comm [2013] EWHC 1752 (Admin) at [5] the courts must apply a “self-denying ordinance” and not interfere unless a policy is unlawful or has not been followed, or the decision taken is perverse. The likelihood of success in cases such as this will be small, “given the constitutional position of the CPS”.

The court again revisited the basic principles as part of a broader review in R (Monica) v DPP [2022] EWHC 3508 (Admin) at [46] Lord Burnett CJ said,

The decision in L V DPP was handed down shortly before the introduction of the VRR scheme, which Sir John Thomas PQBD predicted would reduce such cases by clearly setting out the right to request such a review and the factors that would be applied.

Again the principles were comprehensively distilled by Dove J in R (COL) v DPP [2022] EWHC 601 (Admin) at [39], in applying them to the facts of that case he considered the test to be applied to the quality of the expression of the DUC in that case.

On very many occasions the courts have emphasised that such decisions are taken by expert decision makers and due respect must be given to their experience and expertise. An illustration of this principle is to be found in R (Baptiste) v DPP [2019] EWHC 1130 (Admin) at [22] and [24]. Lord Burnett CJ, said,

At [24] the court highlighted the difficulties and uncertainties of seeking to rely on the possibility of bad character being admitted, the fundamental principle having been established in R v Hanson [2005] 2 Cr App R 21, that such evidence, even if admissible under the Criminal Law Act 2003 will be excluded if the purpose of its admission is to bolster a weak case. In this case there are no previous convictions and so the question of proof and satellite litigation in the trial would have been another obstacle to the Claimant’s assertion that this was material which “corroborated” her account.

In her oral submissions Ms Thomas distilled her argument into one crucial point, namely that the DUC is unlawful because Sophie Stevens failed to address or consider the second limb of self-defence. Having addressed the first limb, the “subjective test”, Sophie Stevens failed, in that she did not go on to consider the “objective test” and ask the question whether, notwithstanding all the issues about the Claimant’s credibility, a jury could be sure that the force used was not proportionate to the perceived threat.

She accepts that the Defendant was entitled to have concerns about the Claimant’s credibility, such concerns were not as straight forward as the Defendant had suggested but their view was certainly not unreasonable in terms of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

She further acknowledges that evaluating potential evidence in considering a trial affords a generous margin of appreciation or latitude to the decision maker.

In her submission, the failure to articulate in the letter of 1 February 2022 that Sophie Stevens had undertaken a consideration of the second limb of the test of self-defence means that the DUC is unlawful in a public law sense. She points out that the letter of 23 November 2021 makes the same omission and Sophie Stevens’ later review did not correct that omission.

She acknowledges that Natalie Cheesman had considered this point in the first and second reviews but re-iterates that Sophie Stevens’ failure to consider it for herself is a public law error.

On behalf of the Defendant Mr Barry acknowledges that the decision making process is not well articulated but stresses that the duty to keep under review is a continuing one and that process has to be viewed as a whole, not every point considered has to be repeated in every review.

He contends that it is obvious that the lawyers with conduct of the case understood the necessary elements of an assault which the prosecution would have to prove to the required standard. It is equally obvious he submits that the lawyers concerned would know the elements of self-defence. That defence had been raised by Mr Flaherty in interview and the prosecution would have to demonstrate, on all the evidence, that he had not acted in reasonable self-defence.

He points out that this court should apply a “self-denying ordinance”. It is not for this court to assess the merits, that is always within the remit of the Defendant. They were faced with a case in which they identified weaknesses in the prosecution evidence from the start but originally thought that a prosecution might well lead to a conviction. As further evidence came to light, they reviewed that decision and reached a conclusion properly available to them. In particular, given the nature of the allegation in this case, they reviewed it with the additional requirements of the domestic violence guidelines well in mind.

He argues that unlike R(Torpey) v DPP [2019] EWHC 1804 (Admin) there was no misunderstanding or misapplication of the law in this case. The fundamental elements of the offence were well-known to them and they reviewed that state of the evidence applying the law properly. The exercise of their judgment as to the quality of the prosecution evidence was entirely a matter for them.

As was set out clearly in Campaign Against Antisemitism v DPP the CPS has both expertise and experience in making a judgement about how to present evidence and how disputed evidence is likely to be viewed by the tribunal of fact. That is particularly so when considering evidence of the primary facts.

The evidence relating to the incident on 22 August 2020 was reviewed four times before the decision to stop the prosecution was taken. It is accepted that the reviewing lawyers were bound to consider issues going to the Claimant’s credibility and that they were entitled to find that her credibility was substantially damaged by the direct conflict between her account in interview on 28 July 2021 and the evidence in that case. There had already been concerns about her reliability on the principal facts of the original incident.

It is accepted that there were weaknesses in expression in the 22/23 November 2021 letter to the Claimant. Further, despite the length of the 1 February 2022 letter setting out the DUC, it did not cover every point previously considered in the earlier reviews. What has to be considered is the issue of the decision made, not the quality of its expression.

The process of review is a continuing one. Often a review is carried out in response to a new piece of evidence or information. The quality of decision making is not sensibly to be criticised because each such review does not recite every previous view expressed or decision reached.

The first and second reviews carried out by Natalie Cheesman dealt with the legal requirements of proof, they considered both parts of the element of self-defence as a defence to a charge of assault. They applied the correct law to an expert assessment of the strength of the evidence, despite weaknesses it was felt appropriate to continue.

Equally when Dan O’Neill carried out the third review he concluded that the case should continue at that stage, he reached that decision despite concerns and following discussion with his manager and the officer in the case.

What was already a concerning case was reviewed a fourth time in light of obvious concerns about the Claimant’s credibility following the interview after she had been arrested. Counsel’s advice was sought and a decision was taken that the prosect of achieving a conviction was so reduced that the case no longer passed the evidential test.

The earlier consideration of the nature of the injuries and whether the force used was or might be proportionate to the perceived threat remained part of the reasoning process, even if not articulated at every stage.

The constitutional role of the DPP and CPS to conduct prosecutions is essential to the proper administration of justice. They are independent of the courts when exercising that function. The court can only interfere with the exercise of that role in the narrowest of circumstances, where a policy is unlawful, where the CPS has failed to apply its own policy or where there has been an error of law in its decision making process so that the decision reached is perverse. It is entirely properly a very restricted list. This court cannot and must not intervene save in those very limited circumstances. None of those issues arise in this case. The decision under challenge was taken in following an adequate consideration of all the relevant and no irrelevant material.

There was no error of law or other justiciable failing in the decision of 1 February 2022. The claim for judicial review of that decision fails.