GIR, R (on the application of) v Chief Constable of Thames Valley Police

The claimant GIR by a claim issued on 5 June 2025 seeks judicial review of a decision dated 6 March 2025 by the Thames Valley Police (“TVP”) maintaining their earlier decision to take no further action in respect of her allegations of rape against the applicant ISL. She also challenges the decision of TVP not to refer the case to the CPS for early advice in the course of their enquiries, pursuant to the Directors Guidance on Charging, sixth Edition (“the Directors Guidance”).

These are the reasons for a decision on ISL’s application to be joined as an Interested Party (“IP”) which was heard together with an application for permission to apply for judicial review. I allowed the applications. I also continued an Anonymity Order in respect of ISL made on an interim basis on 23 February 2026 by Fordham J. GIR has the benefit of anonymity by reason of the provisions of the Sexual Offences Act 2003. A reporting restriction is also in place. Consistently with the spirit of those orders, few details will be given of the factual background to this claim in this judgment: only those necessary to explain the full reasons for my decision to allow ISL to take part in proceedings as an Interested Party which GIR has indicated she wishes to challenge on appeal.

The events in respect of which rape is alleged took place in October 2017. In November 2022 ISL and GIR married, separating after a short time and later divorcing in 2024. The initial report of the rape allegation to TVP by GIR was made on 10 December 2023. Following a Video Recorded Interview GIR on 12 January 2024, further enquiries were made and ISL was interviewed by TVP on 1 February 2024. By letter dated 27 August 2024 TVP communicated their decision to GIR to take no further action in respect of the rape allegation.

On 21 October 2024 GIR submitted through solicitors a Victim’s Right of Review (“VRR”) request in relation to that decision. On 7 November 2024 TVP responded upholding the decision to take no further action. Following a pre-action protocol letter of 30 January 2025 TVP offered to provide a further VRR response and reasons for the decision taken on 7 November 2024. TVP also agreed to consider whether any fresh investigatory steps ought to be taken into certain other allegations GIR was making. TVP responded with further reasoning contained in a letter of 6 March 2025, maintaining its earlier decision. The parties agreed that this later letter should stand as the decision under challenge.

As stated, the application challenges the decisions of police officers, first, not to refer the case to the Crown Prosecution Service (“CPS”) under the evidential limb of the Full Code Test of the Code for Crown Prosecutors, in accordance with the Director’s Guidance on Charging, 6th Edition (“the Director’s Guidance”); and second, not to refer the case to the CPS for “early advice” in accordance with the Director’s Guidance. The defendant applied the CPS Full Code Test. There are two stages: (i) the evidential stage; and (ii) the public interest stage. The claim for judicial review is only concerned with the evidential stage.

The Director’s Guidance in Section 5 with regard to the evidential stage provides as follows:

As to the early advice provision, the offence of rape is an indictable only offence and must be charged by the CPS. The Director’s Guidance provides in “Part 4. The Charging Process” that, in common with all other cases, the police are authorised to make a decision to take no further action, including those which have been referred for “early advice,” provided that the evidential stage of the Full Code Test for Crown Prosecutors is not met.

The Applicant relies on various parts of the Director’s Guidance and other materials to argue that TVP should have referred to matter to the CPS for advice. The materials include the “Protocol between the Police Service and Crown Prosecution Service in the Investigation and Prosecution of Rape” dated June 2015 (“The Rape Protocol”) read with the CPS Rape and Serious Sexual Offences Guidance (“the RASSO Guidance”). Section 9 provides:

“9.

SECTION 9 – EARLY INVESTIGATIVE ADVICE

9.1

Early investigative advice (also known as early consultation) between the Police and the CPS is essential in rape cases and is a requirement of the Director’s Guidance on Charging.

9.2

Once a report has been properly considered by a police supervisor and meets the criteria for referral the IO will arrange a consultation with a rape specialist as early as possible and in any case once a suspect has been identified and it appears that continuing investigation will provide evidence upon which a charging decision may be made. Wherever practicable, this should take place within 24 hours in cases where the suspect is being detained in custody or within 7 days where released on bail.

9.3

Rape specialists will assist in making a provisional assessment of the case, and participate in discussion around lines of further enquiry, identification of the likely charges and of the evidence required to support them. They will be proactive in realistic prospect of conviction means “an objective, impartial and reasonable jury, bench of magistrates or a judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than notto convict the defendant of the charge alleged.” [The Code 4.7]

In the present case it was determined that the case did not meet the criteria for referral as it did not meet the evidential test and did not therefore refer it for early investigative advice. As described, the VRR process was initiated by the claimant, but unsuccessfully, and also on reconsideration.

Although mindful of the court’s reluctance to intervene in cases such as these, having myself read all the material evidence including recorded exchanges between the claimant and her ex-husband, the proposed IP, I determined that there was an arguable case on the substance of the application and I also determined, after separate argument, that ISL should be joined as an interested party. This judgment deals only with the second of those decisions which I have made on a particular and relatively narrow basis.

By an application dated 3 February 2026 ISL applied to be served as an IP in the judicial review of TVP, which application was opposed by GIR and by TVP, both arguing he was not a person “directly” affected. Fordham J by the order of 23 February 2026 set that issue down to be heard together with the application for permission, declining to determine either application on the papers.

For the purposes of an application for judicial review CPR 54.1(2)(f) defines an ‘interested party’ as follows:

The meaning of ‘directly affected’ was considered by the House of Lords in R v Rent Officer Service and another Ex parte Muldoon [1996] 1 WLR 1103. Lord Keith giving the judgment of the House said as follows:

The White Book notes the ratio of Muldoon as being that a person is “directly affected” if they are “affected simply by reason of the grant of a remedy.” “Simply” in that sentence appears to connote what is set out in the first sentence of the citation namely “without the intervention of any intermediate agency.” De Smith (de Smith’s Judicial Review 9^th Edition updated) says this at 2-066

“Being inevitably or necessarily affected by the outcome of the claim for judicial review is insufficient to make a person directly affected; he must (also) be “affected without the intervention of any intermediate agency.”

TVP notes that in respect of the impugned decisions not to refer the case under the evidential limb, and not to refer the case for early advice, the remedies sought are quashing and a direction that the case is remitted to the TVP for the evidential question and the early advice decisions to be taken again. These orders if made, TVP submit, do not directly affect ISL at all. The outcome of the decisions may be exactly the same, alternatively there may be onward referral to the CPS - who then make a decision. The CPS are an intermediate agency. They may also decide that no further action is to be taken which in their submission would also not affect ISL directly.

If the CPS advise further investigation or decide to charge ISL they say that is the intervention of an intermediate agency and is therefore covered by the ratio of Muldoon: it does not constitute being directly affected.

ISL relies upon the judgment of Mrs Justice Hill in R (Watson) v Chief Constable of Greater Manchester Police [2025] EWHC 332 (Admin), KBD, on a similar issue, while TVP and GIR argue it was distinguishable. GIR supported the submissions of TVP to the effect that Watson had been wrongly decided as a matter of principle, it not being an example of direct effect properly understood and in any event, it was distinguishable since the remedy in that case, if given, required an inquiry to take place for the first time. That was not this case.

The facts in Watson were these. The claimant there sought to challenge the decision of the police to take no further action against the author of offensive social media communications. They related to Breanna Ghey, a murdered teenager. If the judicial review succeeded in that case it was held that the probable order would be to remit the case the police force ‘for further investigation.’ A mandatory order doing so was the remedy sought. In that case the alleged perpetrator had not been sought out and interviewed; no investigation had taken place, there was no interview with the complainant nor other preliminaries. Hill J determined that the author of the tweets would be directly affected by the remedy sought.

The relevant passage in the judgement of Hill J is at para [23] as follows:

In distinguishing the case Mr Gerry Boyle KC for TVP pointed to the reasoning of Hill J at para [23] which focused on the fact of an immediate investigation into the proposed IP there, and the fact that he could be charged with criminal offences by the defendant without any involvement of the CPS - neither of which factors would be a consequence of the remedy if given in the present case. This was not a reinvestigation case, rather it would be the remaking of the decision, and/or have the consequence that further advice was obtained from the CPS. This was indirect, not direct effect. ISL would not be directly affected by the outcome, rather, TVP would be required to remake their decisions.

The claim for judicial review in Hill J’s case was argued at a hearing before her on 6 February 2025. The issue of the potential Interested Party status of the author did not arise until after the hearing: it had not been raised in either party’s statement of case and did not arise at the oral permission hearing. After the hearing, she gave separate reasons on the issue of whether a direction should be made to add the author of the tweets from the relevant twitter account as an Interested Party to the claim. The claimant was in person, and the judge determined the IP issue without a hearing.

As the judge noted and is made clear in the Administrative Court Guide, IPs should be included in pre-action correspondence: see the Administrative Court Judicial Review Guide 2025 (“the Guide”), at paragraph 3.2.3. IPs should then be identified in and served with the claim form; and identified in the acknowledgment of service: CPR 54.6(1)(a), 54.7(b) and 54.8(4)(iii).

I would note it is also the case that a defendant must identify any person they consider is an IP because they are directly affected; see the Guide at paragraph 3.3.4. Where a potential IP has not been named or added, the court may direct that they are added as an IP (Guide at paragraph 3.3.5) and the IP may make representations or file an acknowledgement of service (ibid.). Further an IP may of course appeal a decision even if the parties do not (see for example R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52).

In Watson, the judge stated that if the claimant succeeded in that claim, the likely order was that the defendant’s decision to take no further action on her complaint would be quashed. It was not necessarily the case that the would-be IP would be charged with an offence. In that case it would mean the police would need to find the person who made the tweets, and interview her, and there would have to be an investigation. If they determined there was sufficient evidence to support charging a hate crime, they would, given the relevant guidance, be obliged to submit that matter up to the CPS for the charging decision. It was acknowledged “It is right that the remedy sought in this claim would not lead, automatically, to the author being charged with any criminal offences”… but “The author would be the immediate subject of, and integral to, any further investigation by the Defendant. His legal rights would be in issue as he would be at risk of being charged with criminal offences.” (para 23).

In her reasons dated 17 February 2025 Hill J supported her conclusions that the IP was directly affected by reference to other cases which had been adverted to in written materials, namelyF v DPP [2013] EWHC 945 and R (Monica) v DPP [2018] EWHC 3508, two challenges to decisions of the DPP to refuse to initiate a prosecution for rape. TVP characterises these as concerning “the ultimate question engaging someone’s rights.” For that reason in TVP’s submission these cases are not of assistance; furthermore in no case could it be shown that the issue had been discussed and decided in a similar context to the present.

I note that in both the case of F and the case of Monica the issue concerning the prosecutions for rape was in both cases a question of law pertaining to an aspect of the alleged rape. In each case it was submitted that the prosecuting authority had made an error of law in their assessment that the facts, as accepted to be, did not amount to the offence. F was a case involving “Assange” rape, as here, namely consent vitiated by an alleged failure during otherwise consensual sex, contrary to promises, to wear a condom. As the court said there, “This decision should be reviewed in the light of the legal principles explained in this judgment.” The Monica case concerned consent arguably vitiated where an undercover police officer concealed his status and other arguments of principle as to the scope of the law. The review of evidence required in the F case was, as pointed out by Mr Boyle KC in his skeleton argument, necessary because the court declared the true legal position, and the evidence was required to be assessed against that corrected definition of rape. The report shows that the IP in F, the alleged rapist was named as IP, but did not appear and was not represented. In both cases no submissions were made on behalf of the IPs, nor did the named IPs appear.

TVP notes there are other cases (again without exposition of any argument), where a suspect has not been made an IP. Mr Boyle refers in particular to the case ofR (oao) AB v The Chief Constable of Hampshire Constabulary, Secretary of State for Justice, Crown Prosecution Service, and National Police Chiefs’ Council [2019] EWHC 3461 (Admin), a challenge to the police who, having sought early initial advice from the CPS made a decision to take no further action. Following an internal review they maintained their decision. The suspect had been interviewed but was not an IP.

The alternative submission, made on behalf of TVP and CSL is that the decision in Watson is wrong, and clearly so, such that I should on the usual principles, depart from it.

In the course of his submissions MrPaul Luckhurst on behalf of ISL submitted, as well as arguments in support of the Watson reasoning, further facts about the effect of the quashing of the decision under challenge in this case.

He submitted, and I accept that ISL, who has in his chosen field, a high profile, also has an advisory and consulting career in addition to his main endeavour with public and sometimes young-person facing roles. He is required, given the public facing nature of his activities, to declare not only convictions, but also whether he is subject to any police investigation, interest, inquiry or as a suspect. The problem here, and the direct impact upon him, it is submitted, is that were the VRR reconsideration process to be recommenced, he would again be in that category, and obliged to disclose that fact when applying for posts, and opportunities in the normal course of his working life. Such is a significant intrusion he says and certainly, he is directly affected by any decision that sends the VRR decision back to the police, given his obligations.

I accept that submission. Although the TVP submitted the claimant would not, unlike in Watson, be the immediate subject of any further investigation, the effect for ISL with his particular obligations, is more direct. It is of course important to recall that it is by reference to the remedy that the issue of direct affect falls to be decided, here the effect for his, according to submission, different.

The provisions of the Guidance in my judgement support what is submitted about the effect of the remedy in this case. So much appears from the National Policing Guidelines on Police Victim Right to Review

“3.

SECTION 3 – THE PRINCIPLES OF POLICE VRR

3.1

Police VRR schemes should adhere to the following principles:

….

VI. Reviews should be conducted by an officer at least one rank higher than the decision maker or by an equivalent staff member, such as a Senior Evidence Review Officer. Forces may wish to consider having a Supt or DCI/staff equivalent to undertake the VRR who are not involved in the investigation chain to ensure objectivity and impartiality.

VII. The reviewing officer should consider the case afresh rather than assessing the validity of the original decision-making process.

[Emphasis added.]

The reconsideration is not a review of the previous decision, but rather a fresh consideration of the case. I note that the police scheme itself does not generally anticipate the suspect being made aware of the VRR or any fresh reconsideration, however, I am persuaded that here, given what I am told of the professional obligation that would fall upon ISL, who is very aware of the process and potential outcome if the decision were quashed, he is directly affected by the decision under challenge in the manner outlined. Other factual cases may provide other outcomes.

The point here is that under the VRR scheme, once it is over, a suspect is no longer under any kind of inquiry, whether designated as an “investigation” or some lesser thing. If the decision made is quashed, then he will be. That is the effect of Section 3- he will again be under the inhibiting obligations set out.

I should say, although I do not need to decide it, that I have doubts about the generality of application of the decision in Watson. In my view, being at risk of a charge does not render a person directly affected. The effect of the remedy is not direct but rather removed – there needs to be a further exercise of discretion between the remedy afforded and the outcome in which a person is affected, as was submitted. I have some difficulty with the notion that, absent the features of the present case, the effect is other than indirect.

Further, although not argued before me, I should say I see certain issues of difficulty in cases where prosecutorial decisions are under challenge if the subject of that prosecution is an interested party in a judicial review of the decision. One might anticipate arguments about disclosure, especially given duties of candour, and questions of where the public interest lay and how far submissions on the propriety of a charging decision might be received from the subject of that charge. Certainly, in so far as they are outside the protections of the Crown Court and abuse applications or other remedies which are available properly to protect the individual (and the public interest) in that forum. It seems not inconceivable there might in fact be new abuse of process arguments generated by a judicial review itself.

There is no case as yet where full argument has been received on these issues. They do not require determination here. What I determine here is, on these particular facts, this claimant is in my judgement directly affected by the claim and by the remedy sought.