Director of Public Prosecutions v The Crown Court at Inner London

This is a claim for judicial review of a costs order made by the Crown Court. The Director of Public Prosecutions (‘DPP’) is the Claimant. The Interested Party was the defendant in a rape trial. The Defendant to this claim is the Crown Court and, as is conventional, has taken no part in these proceedings. References to ‘the parties’ are therefore to the DPP and the Interested Party.

On 14 May 2025, His Honour Judge Boyle (‘the Judge’) sitting at the Crown Court in Inner London ordered the DPP to pay the Interested Party’s costs. The order followed the Interested Party’s acquittal after the Judge upheld a submission of no case to answer. The Interested Party applied for costs. The order, in the sum of £97,000, was made pursuant to section 19(1) of the Prosecution of Offences Act 1985 (‘the 1985 Act’) and Regulation 3 of The Costs in Criminal Cases (General) Regulations 1986 (‘the Regulations’).

The DPP brought this claim for judicial review on 6 June 2025, challenging the legality of the order on the grounds of error of law and irrationality. It seeks to quash the costs order.

On 16 January 2026, Eady J granted permission. She also granted anonymity to the Complainant in the criminal proceedings, EWD (who is entitled to life-long anonymity as the alleged victim of a sexual assault), and to the Interested Party, CKH. There is liberty to apply, but no one has made an application to alter the position on anonymity.

In the remainder of this judgment, the Complainant and the Interested Party are referred to by their ciphers. EWD’s mother is identified by her relationship, and the other witnesses by a single initial, although they were named in open court.

There is no dispute as to the issues for determination, which are as follows:

Although jurisdiction is in principle a threshold issue, the parties agree that in this case it is contingent upon the existence and nature of any public law error. It is therefore appropriate to determine first whether the impugned decision is vitiated by error of law or irrationality. If not, jurisdiction does not arise and questions (ii) and (iii) need not be answered. If it is, the Court will then consider whether the error is of a kind or gravity sufficient to engage the High Court’s supervisory jurisdiction under section 29(3) of the Senior Courts Act 1981 (‘the 1981 Act’). This approach avoids unnecessary determination of wider jurisdictional questions and accords with the principle that the Court should decide no more than is required to dispose of the claim.

For the reasons that follow, the claim is dismissed. I am not persuaded that the Judge’s decision is vitiated by any error of law or irrationality. The claim fails on its merits. It is therefore unnecessary to determine the scope of this Court’s jurisdiction under section 29(3) of the 1981 Act.

The relevant chronology and the evidential material are set out under the following headings. References to the evidential position are, unless otherwise indicated, to the material available at the time of the charging decision.

The alleged rape occurred on 1 September 2018. At that time, EWD and CKH were in a relationship and lived in a shared house with other housemates but had separate bedrooms.

On 24 January 2019, EWD attended a police station to allege that CKH had raped her during the course of their relationship. An Achieving Best Evidence (‘ABE’) interview was conducted on the same day. In interview, EWD told the police that the alleged incident took place on 1 September 2018 following a party at the house. She stated that she and CKH went to bed earlier than everybody else because she had to attend work the next morning. They began consensual sexual intercourse, during which EWD could feel herself falling asleep, and so she asked CKH whether he would “finish soon”. He replied, “Yeah, I’m nearly finished.” EWD described herself as being “drunk” and stated that she “just fell asleep”. She was asked how much time elapsed between her saying she was going to fall asleep and actually falling asleep, and how much longer CKH had continued for. Her reply was, “I don’t know.” EWD stated that on waking the next morning she noticed a love bite on her back and thought that CKH must have “carried on” because she did not recall him doing that. She felt a “squishy” feeling inside that she normally experienced when CKH ejaculated inside her.She did not think CKH had ejaculated prior to her falling asleep as she would have felt it.

After the incident, EWD said that they had a number of arguments and eventually broke up. Sometime later, whilst discussing the breakup, EWD told him that on the night of the house party, he had “carried on” even though she had told him that she was falling asleep. CKH said, “I’m so sorry,” which EWD took as an admission that he knew that what he did had been wrong.

EWD also told the police, about a prior incident, which had occurred in January or February 2018 (‘the earlier incident’). On that occasion CKH had allegedly had sexual intercourse with EWD whilst she was asleep.

On 25 January 2019, CKH attended the police station for a voluntary interview. In a prepared statement, CKH stated that all sexual activity within the relationship had been consensual and that he would not have engaged in intercourse with EWD if he did not believe that she was consenting. He also stated that he had apologised to EWD on occasions when she was upset.

During the investigation, the police obtained witness statements from EWD’s mother and her friend and housemate – Ms A. Each recounted what they had been told by EWD after the alleged incident. Ms A, in a statement dated 3 August 2019, stated that EWD told her that “…CKHstarted to kiss her and was making progressive movement by feeling her up. EWD said she told CKH that she knew where this was going and she didn’t want to because she had work early in the morning…” Ms A assumed that EWD was referring to sex. In her statement, Ms A went on to say that EWD told her that she woke up the next morning, in a different position to the one she was in when she fell asleep and saw love bites on her back. Ms A stated that EWD said she knew that CKH had had sex with her because she observed evidence of ejaculation as she was walking to the bathroom. Ms A subsequently asked CKH what he did to EWD and he said, “he had sex with EWD whilst she was asleep.”The witness statement of the complainant’s mother, dated 8 August 2019, conveyed that EWD told her that CKH had sex with her while she was asleep, on more than one occasion, without her knowledge or consent. After the first occasion EWD had a conversation with CKH and made it clear to him that he was not to do it again. EWD’s mother stated that EWD did not go into detail, but she assumed that her daughter “had been woken by [CKH] having sex with her.”

There was a significant lapse of time between the initial report in January 2019 and the eventual decision to charge. The reasons for that delay are not relevant to this claim.

CKH was charged on 18 January 2024 with a single count of rape arising from the incident alleged to have occurred on 1 September 2018. He made his first appearance in the Magistrates’ Court on 1 March 2024. He indicated a not guilty plea, and the matter was committed to the Crown Court for trial. At the Plea and Trial Preparation Hearing, CKH pleaded not guilty. He did not seek to dismiss the charge or to stay the proceedings as an abuse of process at any time prior to the close of the prosecution case.

On 7 June 2024, CKH served a defence statement in which he put the prosecution to proof on the issue of consent and advanced a positive defence that at all times he had a reasonable belief in consent. On the same day (7 June), the prosecution sought to adduce bad character evidence relating to the earlier incident. That application was opposed.The prosecution also obtained a further statement from a former housemate of EWD and CKH – Mr B. The statement is dated 26 July 2024 but was not signed until December 2024. Mr B stated that on a day in 2018 or 2019, CKH told him that “EWD was passed out drunk while he was having sex with her.”It is common ground that Mr B’s statement was obtained after the charging decision and did not form part of the material available to the prosecutor at that time.

At a pre-trial review, on 19 December 2024, the Judge refused the bad character application and queried whether sufficient consideration had been given to the prosecution’s prospects of success. The prosecution assured the Judge that there had been no fewer than three such assessments by the reviewing lawyer and a decision had been made to proceed to trial.

The trial commenced on 13 January 2025. At trial, the prosecution case was founded primarily on EWD’s account. The prosecution also relied on evidence of complaint made by EWD to her mother and Ms A and the purported confession evidence based on conversations CKH was said to have had with Ms A and Mr B. The complaint evidence was to the effect that EWD reported that CKH had sexual intercourse with her whilst she was asleep. A feature of the case was that those accounts differed in material respects from the detail of EWD’s own account given to the police and in oral evidence, in particular as to whether intercourse had initially been consensual.

At the close of the prosecution case, the defence submitted that there was no case to answer which was opposed by the prosecution. At that time, the prosecution’s position was that it accepted the difficulty of establishing the absence of implied consent and acknowledged that it would not be unreasonable for the Judge to withdraw the case from the jury. The prosecution did not dispute the Judge’s observation that the evidential position had not developed since the trial began. The Judge upheld the no case to answer submission in an ex-tempore ruling. He concluded that the evidential difficulties, including the inability to identify when EWD had fallen asleep, the “wholly inconsistent” complaint evidenceand the scope for confusion and unreliability in relation to the purported confession evidence, meant that a jury could not properly be sure of guilt. On 15 January 2025, he directed a verdict of not guilty.

The prosecution did not seek to appeal the Judge’s decision that there was no case to answer.

On 3 February 2025, CKH made a written application for costs pursuant to section 19 of the 1985 Act, together with a schedule of costs totalling £137,885.00. The application was on two principal bases: (i) failure to progress the case in a timely and expeditious manner; and (ii) the decision to prosecute and continue the proceedings in circumstances said to disclose a fundamentally weak case.

The CPS opposed the application on the grounds that the statutory test was not made out, or in the alternative, that any costs order should be greatly reduced. In its written response, the CPS summarised EWD’s evidence in a manner that did not reflect the prosecution case at trial. That error was acknowledged at the hearing.CKH replied to the CPS’ response on 6 April 2025.

The application for costs was heard by the Judge on 14 May 2025. There was no dispute as to the law. The Judge delivered an ex-tempore ruling in which he rejected the application based on delay but concluded that the decision to prosecute constituted an improper act within the meaning of section 19. He held that, on the material available, the case was one which no reasonable prosecutor could have brought and that as a result CKH had incurred costs. The Judge exercised his discretion to make a costs order in favour of CKH reducing the quantum of the costs to £97,000.

The six conclusions the Judge reached in his ruling may be summarised as follows:

Against that factual background, the question for this Court is not whether the decision to prosecute, on the material available and as it evolved in accordance with the prosecutor’s continuing duty of review, was one which no reasonable prosecutor could properly have made. That was the question for the Judge. The question for this Court is whether the Judge’s conclusion to that effect was one which no reasonable judge could have reached. That falls to be answered by reference to the legal principles governing the Court’s power under section 19 of the 1985 Act, to which I now turn.

The statutory framework and key legal principles are well-settled and are not in dispute.

Section 19(1) of the 1985 Act empowered the Lord Chancellor to make regulations that would allow a Magistrates’ Court, the Crown Court, and the Court of Appeal:

“…in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of anunnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.” [emphasis added]

This provision is given effect, in the Crown Court, by Regulation 3(1) of the Regulations.

Criminal Procedure Rule 45.8 sets out the procedure. The exercise of the section 19(1) jurisdiction is informed by the Practice Direction (Costs in Criminal Proceedings) 2015 at 4.1.1 (“the Practice Direction”), which suggests a three-stage approach:

Any challenge to a costs order under section 19(1) has to be by application for judicial review on conventional public law grounds (by contrast an order for wasted costs under section 19A of the 1985 Act is challengeable by way of appeal to the Court of Appeal by the legal representative). On judicial review, the question is not whether the prosecution met the required threshold, but whether the conclusion on that issue was vitiated by error of law or was outside the range of rational decisions that could have been made.

An “unnecessary or improper act or omission” does not require any finding of bad faith. It is sufficient that the act or omission is one which would not have occurred had the party conducted its case properly: DPP v Denning [1991] 2 QB 532 (DC) at [541].

The jurisdiction is confined and exceptional in operation. The authorities consistently emphasise that such orders are not designed to reflect mere disagreement about litigation decisions, nor to penalise failure at trial. Rather, they will ordinarily arise only where there has been a clear failure in the conduct of the case, as opposed to a merely arguable or borderline decision.

Where the alleged improper act is the decision to prosecute or to continue proceedings, a stringent standard applies. Charging decisions are for the prosecutor, not the court. Courts must avoid substituting their own evaluation for that of the decision-maker, save in tightly confined circumstances: R v A (RJ) [2012] EWCA Crim 434 at [83] and [84]. Section 19 must not be used as a vehicle for collateral challenge to prosecutorial decision-making: R v Cornish and others [2016] EWHC 779 (QB) at [16]; R (DPP) v Crown Court at Sheffield [2014] EWHC 2014 (Admin); [2014] 1 WLR 4639. As Lord Thomas CJ explained in Sheffield at [16] it is not the judge’s role to “discipline” prosecutorial decisions through costs orders.

The only question is whether the decision was one which no reasonable prosecutor could have made: Evans v Serious Fraud Office [2015] EWHC 263 (QB) at [146]; and Cornishat [16]. Descriptions of such cases as “rare” or “exceptional” reflect the height of that threshold, but do not constitute a separate test: Evansat [146]; R v P [2011] EWCA Crim 1130 at [13] - [15]. The issue is whether the prosecution ever stood any realistic chance of success, in the sense that it was a reasonable and proper prosecution: Bentley-Thomas v Winkfield Parish Council [2013] EWHC 356 (Admin) at [24]; R v (Hubert) v Manchester Crown Court[2015] EWHC 3734 at [27] and R (Holloway) v Harrow Crown Court [2019] EWHC 1731 (Admin) at [64].

The distinction is between a case which is weak but properly brought, and a case which is so deficient that its pursuit amounts to an unnecessary or improper act. Only the latter engages section 19(1). Nor does the fact that a prosecution fails or is halted by a submission of no case to answer, establish impropriety. A decision may be wrong, or ultimately unsuccessful, yet still fall within the range of reasonable prosecutorial judgment: Evans at [144]; R v P at [15]. The assessment must be undertaken by reference to the state of the evidence at the time of the charging decision, and as it evolved in accordance with the prosecutor’s continuing duty of review. Care must be taken to avoid hindsight; the fact that a case failed does not demonstrate that it was always bound to fail: Bentley-Thomas at [18]. Later developments may illuminate but must not determine the analysis: Holloway at [17]; and Cornish at [43] - [44].

The error must be clear and stark. It will ordinarily be apparent without the need for detailed reconstruction of the prosecutor’s reasoning: Evans at [146]; Cornishat [16]. The court should therefore be slow, particularly in the absence of contemporaneous reasoning, to conclude that a decision fell outside the range of reasonable prosecutorial judgment.A conclusion that a case lacked a realistic prospect of success does not, without more, satisfy that test.

Drawing these principles together: (i) section 19(1) confers a limited jurisdiction and is not a mechanism for challenging prosecutorial decisions; (ii) the question for the court determining the costs application is whether the decision to prosecute or continue proceedings was one which no reasonable prosecutor could have made; (iii) the error must be clear and stark; (iv) a prosecutorial decision may be wrong or ultimately unsuccessful, yet still be reasonable; (v) the assessment is anchored to the evidential position at the time of the charging decision, and as it developed in accordance with the duty of continuing review, without recourse to hindsight; and (vi) the jurisdiction will be engaged only in a rare or exceptional case.

Mr Jarvis KC submits that the Judge misdirected himself in law and reached a decision that no reasonable judge in his position could have reached. Particular reliance is placed on what is said to be inconsistent conclusions, in that the Judge found that the prosecution had not acted improperly yet went on to determine that the decision to prosecute constituted an improper act (‘the inconsistency argument’). This is described as a fundamental error. Mr Jarvis KC acknowledges that the Judge delivered an ex-tempore ruling but submits that the inconsistency cannot be characterised as a mere slip, particularly as the Judge had the benefit of written submissions, appeared to have formulated parts of his ruling in writing before delivering it at the end of oral submissions, and was addressing a central issue in the case.

Mr Jarvis KC further submits that the Judge impermissibly moved from his own assessment that the prosecution had no realistic prospect of success to the conclusion that no reasonable prosecutor could have decided to charge. This, it is said, involved an unreasoned extrapolation from the Judge’s personal assessment of the evidence without any reference to the actual analysis that the prosecutor had undertaken. The Judge accepted that some flaws in the prosecution case were not obvious from the outset but did not explain which flaws he was referring to, and in any event, there was nothing before the Judge to suggest that the prosecutor was unaware of the weakness of the Crown’s case.

It is also submitted that the Judge placed weight on his own evaluation of the evidence having heard the trial, thereby placing himself in a disadvantageous position. In particular, his view was coloured by the material and impressions not available to the prosecutor at the time of charge. Furthermore, insufficient weight is said to have been given to the constitutional position that charging decisions are entrusted to prosecutors, and to the need for appropriate deference to that function. Mr Jarvis KC submits that the Judge’s reasoning demonstrates that the costs jurisdiction was, in substance, used to discipline the prosecution for a decision with which the Judge disagreed, contrary to the principles identified in the authorities.

On the question of irrationality, Mr Jarvis KC submits that the Judge’s conclusion was not one which a reasonable judge could have reached. On the material available at the time, a reasonable prosecutor (but not necessarily every reasonable prosecutor) could have been satisfied that there was a realistic prospect of conviction. The evidence, including EWD’s account, the supporting complaint evidence and the confession evidence, is said to have been capable of supporting such a conclusion. It is therefore submitted that the Judge was entitled to take a different view of the strength of the case, but it did not follow that all reasonable prosecutors would have been bound to agree with him.

The Judge’s conclusion that no reasonable prosecutor could have taken the decision to charge is said to be unreasonable in all the circumstances.

Mr Goss submits that the Judge correctly directed himself and applied the statutory test. He invites the Court to conclude that the Claimant in relying on the inconsistency argument is “straining for error”. It is submitted that the finding that the prosecutor had not acted improperly must be read in context as referring to the absence of bad faith, which is distinct from the question whether the decision to prosecute amounted to an improper act within the meaning of section 19. On that reading, the two conclusions are consistent.

Mr Goss further submits that the Judge did not collapse the threshold into a mere finding that the case lacked a realistic prospect of success. Rather, he explained why, on the material available at the time of charge, the absence of such a prospect was evident. It was of such a nature that no reasonable prosecutor could properly have reached a different conclusion. It is also submitted that the Judge was entitled to form his own evaluative assessment of the evidence, that exercise being inherent in the application of section 19. The criticism that he substituted his own view is said to mischaracterise the nature of that task.

As to hindsight, Mr Goss submits that the Judge expressly distinguished between cases which fail because the evidence develops at trial and those which are deficient from the outset and placed this case in the latter category. Mr Goss also rejects the suggestion that the Judge used the jurisdiction to discipline the prosecution. He submits that the Judge’s reference to matters that occurred post-charge reflected his view of the prosecution’s attitude to the evidence. Furthermore, both parties reminded the Judge of the limits of section 19, and the Judge directed himself accordingly, with nothing in the ruling to indicate any departure from that approach.

More generally, it is submitted that the Claimant’s approach would unduly restrict the operation of section 19 by, in effect, making it virtually impossible for a judge to make an order for costs against the CPS in respect of a prosecution. Although such orders are unusual, there are circumstances where the power under section 19 can properly be exercised.

On irrationality, Mr Goss submits that the challenge amounts to disagreement with the Judge’s evaluative conclusion. He further submits that the question is whether the Judge’s conclusion that no reasonable prosecutor could have decided to charge was itself irrational, rather than whether a reasonable prosecutor could have taken a different view. It is submitted that the Judge undertook an assessment of the evidential case and was entitled to conclude that it was inherently weak and that its deficiencies were apparent from the outset. In particular, reliance is placed on the Judge’s findings that EWD could not identify when she fell asleep, that there were inconsistencies in the complaint evidence, and that the alleged confession evidence was of limited weight. Those matters are said to justify the conclusion that the case lacked any realistic prospect of success at the time of charge. While the “wishful thinking” characterisation may have been trenchant or even harsh, it fell within the range of conclusions properly open to the Judge, such that the irrationality challenge is not made out.

It is important that I return to the central question. As stated in paragraph 27 above, the key question is whether the Judge’s conclusion that the prosecution was one which no reasonable prosecutor could properly have brought was itself a conclusion which no reasonable judge, properly directing himself, could have reached. This is a second-order evaluative exercise. The Court is not concerned with the correctness of the prosecutorial decision, nor whether it would itself have reached the same conclusion, but with the lawfulness of the Judge’s evaluative conclusion.

For clarity, this judgment resolves only those matters necessary to determine the pleaded grounds and the issues identified above. It does not purport to address every argument advanced in writing or orally. The grounds overlap to some extent, and a degree of repetition in the analysis is therefore inevitable.

A central plank of Mr Jarvis KC’s submission is based on the ‘inconsistency argument’. I reject that submission. It is well-established that judicial reasons are not to be subjected to an unduly narrow textual analysis. A judge is to be taken to have understood and applied the relevant legal principles unless the contrary is clearly demonstrated: see Piglowska v Piglowski[1999] 1 WLR 1360 at 1372. That principle applies with particular force in judicial review proceedings, where decisions are to be read with “benevolence and pragmatism”: R (Dyer) v HM Assistant Coroner for West Yorkshire[2020] EWCA Civ 1375; [2021] 1 WLR 1233 at [92] and [95]. Read fairly and as a whole, the Judge’s ruling does not disclose any inconsistency. It reflects a distinction between the absence of bad faith or misconduct on the part of the prosecution (which is clearly the sense in which the Judge stated that the CPS had “not acted improperly”) and the separate question whether the decision to prosecute fell outside the range of reasonable prosecutorial judgment. On that reading there is no inconsistency. It aligns with the well-established principle that impropriety for the purposes of section 19 does not depend upon bad faith, and the Judge can be taken to have been applying that approach. The contrary reading depends on an unduly narrow and atomistic assessment of the Judge’s ex-tempore ruling, rather than the fair and realistic approach required when construing judicial reasons.

I also reject the submission that the Judge erred in law by diluting or misapplying the statutory test. The Judge correctly directed himself as to the applicable legal principles. He recognised that the jurisdiction under section 19 is limited and exceptional and not to be used as a vehicle for disciplining prosecutorial decision-making. It does not follow from a conclusion that a prosecution lacked a realistic prospect of conviction that it was one which no reasonable prosecutor could have brought. The Judge was required to, and did, go further. He identified structural deficiencies in the evidential case, in particular the absence of any evidential foundation for identifying the point at which EWD had fallen asleep and the consequences of that gap for the essential elements of the offence, including in particular the prosecution’s ability to establish lack of consent and CKH’s knowledge (or reasonable belief as to consent). Those were not merely matters of evidential weight or evaluation but went to the absence of any proper evidential foundation, as the Judge was entitled to find. It was that absence, rather than any evaluative disagreement about the strength of the case, which entitled the Judge to characterise the prosecution as falling outside the bounds of reasonable prosecutorial judgment. Furthermore, those features are of a kind which satisfy the requirement, identified in the authorities, that the departure from reasonable prosecutorial judgment must be clear and stark, rather than a matter of detailed analysis of the prosecutor’s rationale. The Judge’s conclusion was therefore not merely that the prosecution case was weak or unlikely to succeed, but that it was so structurally deficient on essential elements that no reasonable prosecutor, properly directing themselves to the available material, could have concluded that it disclosed a realistic and evidentially sustainable basis for the charge.

The Judge concluded that the absence of any realistic prospect of success should have been evident to the prosecution from the outset. Read fairly, his conclusion was not expressed merely in terms of disagreement with the merits of the charging decision, but as an evaluative conclusion that the case fell outside the range of reasonable prosecutorial judgment.Against that backdrop, I accept the submission made by Mr Goss that the suggestion that disciplining the prosecution was the ‘real reason’ for the decision invites speculation about what was in the Judge’s mind and finds no support in the ruling itself. On the contrary, the ruling demonstrates a conscious application of the relevant principles. That conclusion must be understood in light of the evidential features identified, which the Judge was entitled to treat as apparent on the material available at the time of the charging decision and which provided the basis for his evaluative judgment.

Furthermore, the submission that the Judge heard the evidence at trial and was therefore influenced by material not available to the charging lawyer is not borne out by his reasoning. The position at the end of the prosecution case was broadly as it had been on the papers. None of the witnesses conspicuously failed to come up to proof, nor gave evidence that went materially beyond their earlier accounts. The Judge’s analysis is anchored to features of the evidential case as disclosed in the ABE interview and witness statements, which he considered to have been apparent from the outset. He did not treat the way in which the evidence ultimately emerged at trial, nor the fact of the no case to answer ruling, as determinative.In particular, the features identified by the Judge (the absence of any evidential basis for identifying when the complainant fell asleep, the inconsistencies in the accounts given by EWD’s mother and Ms A, and the limited probative force of the alleged confession evidence) were all apparent on the material available prior to trial and did not depend upon any development in the evidence as a result of cross-examination. Each of these features was apparent from the ABE interview, the witness statements, and CKH’s interview, which together comprised the core material available at the time of the charging decision. The Judge did not rely on subsequent evidential developments to reach his decision but treated these developments as no more than confirming what was already evident from the original material. References in the Judge’s ruling to matters that had occurred post-charge such as the “flawed” bad character application and the “mistaken” summary of EWD’s evidence in the CPS’ costs submissions have to be assessed in context. Read fairly, it is clear that the Judge was indicating that there was an overall lack of care taken by the prosecution and its “wishful thinking” attitude to the evidence throughout. I accept the submission made by Mr Goss that that was a relevant matter when it came to assessing the approach to the charging decision itself, particularly as the Judge was not provided with any actual rationale for that decision.

Nor does the judgment compel the conclusion that the Judge impermissibly substituted his own view for that of the prosecutor. The exercise required him to form an evaluative judgment as to whether the statutory threshold was met. That necessarily involves consideration of the evidential position, but it does not follow that, in doing so, he exceeded the proper bounds of the jurisdiction. The question for this Court is not whether his evaluation was right, but whether it was one which he was entitled to reach. That evaluative exercise did not involve determining whether the Judge agreed with the prosecutorial assessment, but whether the absence of any proper evidential foundation placed the charging decision outside the permissible bounds of prosecutorial judgment.

To the extent that any reliance is placed on the Judge’s treatment of the absence of any application by the defence to dismiss the charge or to stay the proceedings, I note that that aspect of the reasoning did not form an independent basis for his conclusion. The Judge’s reference to these avenues was directed to rejecting the submission that responsibility lay with the defence to challenge the indictment. It was clearly open to the Judge to emphasise that the statutory question fell to be determined by the court notwithstanding the absence of any such application.

Standing back, even taking the Claimant’s criticisms at their highest, they go to disagreement with the Judge’s evaluative assessment of the evidential position reached within the proper legal framework rather than to the identification of any legal misdirection. The authorities emphasise that a stringent distinction must be maintained between error of law and disagreement with an evaluative conclusion. Properly analysed, the Claimant’s case falls into the latter category.

For those reasons, I am not persuaded that the Judge misdirected himself in law. Ground 1 is not made out.

Ground 2 overlaps substantially with Ground 1. This ground also fails. The same features of the Judge’s reasoning which lead me to reject the error of law ground likewise inform the conclusion that the irrationality ground has not been made out.

The threshold for establishing irrationality is a high one. In that context, the fact that it is possible to identify features capable of supporting a different evaluative conclusion, including that a reasonable prosecutor might have taken a different view of the case, does not determine the present question. The task of this Court is not to choose between competing rational views but to assess whether the conclusion actually reached falls outside the permissible evaluative range.

The prosecution case depended, in essence, on an inference that sexual intercourse continued after EWD had fallen asleep, coupled with an inference that CKH knew that to be so. EWD’s account did not identify the point at which she lost consciousness, and the supporting evidence was indirect and open to differing interpretations. Those features were capable of supporting the Judge’s conclusion that the evidential deficiencies were structural and apparent from the outset. The function of this Court is not to endorse that assessment but to determine whether it was one that was lawfully open to him. Mr Jarvis KC identified features of this case that were capable of supporting a prosecutorial decision which demonstrates that reasonable prosecutors could differ. The existence of competing evaluative views at the margins does not render the conclusion reached outside the permissible range. The question is not whether some reasonable prosecutor might have proceeded, but whether the decision to do so lay outside the outer limits of reasonable prosecutorial judgment. The Judge’s conclusion was directed to that boundary.

The divergence of reasonable views does not render the Judge’s contrary assessment irrational. The question is not whether the Judge’s conclusion was the only available one, but whether it fell outside the permissible range. It did not. In those circumstances, the Judge was entitled to conclude that the decision to prosecute was one no reasonable prosecutor could have made.

The Judge’s conclusion was robust, but it was not one which he was not entitled to reach. It represented a conclusion reached by reference to identifiable features of the evidential case and the application of the correct legal standard, rather than an impermissible substitution of the Judge’s own view of the merits.

Accordingly, Ground 2 is not made out.

Drawing these matters together, the Judge identified the correct legal test, directed himself against hindsight and reached an evaluative conclusion that was open to him. It has not been shown that his conclusion transgressed the limits of rational evaluative judgment, even allowing for the possibility that a different judge might have reached a different conclusion on the same material.

The Claimant’s challenge amounts, in substance, to disagreement with that evaluation. That is insufficient to establish either error of law or irrationality.

The claim is dismissed.

I am grateful to counsel for their written and oral submissions, which were of considerable assistance.

Subject to the Court’s overriding discretion under CPR 44.2, the parties agreed in advance of the hearing that each should bear their own costs of these proceedings, whatever the outcome. I see no reason to interfere with that agreement. The time for payment of the costs order was extended pending determination of this claim, and the parties further agreed that no interest should accrue during that period. Therefore, the only remaining matter is the form of order.

The parties are invited to agree a draft order reflecting this judgment. If agreement cannot be reached, short written submissions should be lodged within 7 days of hand down.