NXB v Crown Prosecution Service

In this action the Claimant (NXB) claims damages against the Defendant, the Crown Prosecution Service (CPS) under s.6 of the Human Rights Act 1998 for breaches of the positive obligation that arises under Article 3 of the European Convention on Human Rights.

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The claim arises out of the withdrawal of a prosecution against (a man who is identified for the purposes of this claim as) DK for offences of sexual assault against NXB between 1993 and 1995 when she was a child. On 31 October 2011, the day of the trial at Newcastle Crown Court, Counsel for the Prosecution informed the trial Judge, HH Judge Evans, that the CPS had decided to offer no evidence and verdicts of Not Guilty were then entered.

In summary, it is the Claimant’s case that the CPS made a series of rushed, ill-informed and erroneous assessments of the strength of the Prosecution case, culminating in an irrational decision founded on errors of law and the misapplication or disregard of established policy.

NXB was born in July 1980 and grew up in Sunderland. It is not in dispute that her experience of childhood was harsh and that this has had a profound effect on her subsequent wellbeing. NXB’s evidence is, and always has been, that DK (then in his forties) groomed her, sexually assaulted her, and on three occasions had sexual intercourse with her when she was between the ages of 13 and 15; and it is important to note that the Defendant does not challenge this account in these proceedings.

The first occasion of sexual intercourse was on 28 December 1993, when she was 13, in circumstances that she was to describe as ‘very brief and painful’. The second time was in 1995, when she was 14, nearly 15. The third time was on 11 November 1995 in DK’s car, when she was 15.

On 21 September 2010 she went to Etal Lane police station in Newcastle and made a complaint of sexual abuse against DK. Her allegations were referred to a specialist officer, DC Thorpe, who took a statement from NXB. Although this first witness statement is dated 22 September 2010 it is clear that not all of its contents were written at the same time. The statement begins:

Over the last 18 months I have been seeing a councillor. One of the reasons I have needed counselling is because of incidents of a sexual nature with a 40 year old man, which occurred when I was 12 years old, through until I was 15 years old. The counselling is due to end and I feel the need to get everything out in the open now that I am 30. I have decided to tell the police everything as I want closure to this so I can get along with my life.

The statement then described a history of grooming by DK, leading to frequent sexual assaults over a protracted period by DK. The detail of some of the descriptions makes the evidence both disturbing and convincing.

The statement described DK taking NXB ice-skating and to a public house where they would drink together. She described the second occasion of sexual intercourse (in his car in a car-park on the coast between Whitburn and South Shields) and the third occasion (again in his car in a car park, this time above Marsden Cliffs). Following this third occasion (on Saturday 11 November 1995) she had told a friend (L) that DK had had sex with her; and, importantly from the point of view of the Prosecution case, she also described being driven by DK on Sunday 12 November to Dryburn Hospital for a ‘morning after’ pill to prevent the risk of pregnancy. The reason that she was able to describe the third occasion with such detail was that at this stage of the interview, she told DC Thorpe that she had diaries for 1994 and 1995 in which she had described the process of grooming and specific incidents of sexual abuse.

It was by reference to the 1995 diary that she was able to recall that on Tuesday 14 November 1995 she had confided to a teacher at her school (JS).

Told [JS] what had happened on Saturday, but didn’t mention any names.

During the course of the preparation of the statement NXB also handed to the police 26 letters which DK had sent her over the period of the abuse she had described. Although the letters were not directly incriminating they provided support for the allegations of the manipulative grooming which she had described in her statement to the police. She also handed over 2 poems she had written about DK in August and October 1996.

At page 15 of the 16 page statement she described the first occasion of sexual intercourse on 28 December 1993 as a result of recalling what occurred from an entry in her 1994 diary.

Messed around in house. Met DK at multi-storey and went to his house. Ended up starkers all but leather bit and sox. Did 69 and BJ and a very brief painful bit of intercourse. Plus lots of hugging + kissing. Watched tele – went to bed.

I have mentioned some of the specific allegations in the statement because I accept Ms Law’s submission that its contents form the basis of an inherently credible case against DK.

Once they had been handed over to the police the 1994 and 1995 diaries were kept for use as exhibits. However, it was NXB’s evidence (and not disputed by the Defendant) that before she handed them over to the police she told DC Thorpe that she had tippexed out some entries in the 1995 diary the previous night, saying that these entries related to matters that she was not ready to deal with. As her witness statement in the present action explained:

DC Thorpe asked me what they said and I told her truthfully that I couldn’t remember the specific contents but I knew the general content of them and I knew that they did not concern [DK]. DC Thorpe said as long as they did not relate to [DK] that was fine. She did not ask me about it again.

The alterations to the 1995 diary also consisted of black line obliterations of some passages as well as tippexing. I shall refer to all affected passages as the ‘edited’ or ‘concealed’ parts of the diary although in fact, when the original pages of the diary are held up to the light, it is possible to read most of the obscured passages underneath. As will become apparent NXB’s assertion that she could not remember the specific contents of what had been concealed was not strictly speaking true; and was a statement which was later repeated.

The changes to the 1995 diary were to weigh heavily in the decision to withdraw the prosecution on 31 October 2011. Up until then the CPS had not been made aware of the alterations. On any view this was very unfortunate.

The concealed parts of the 1995 diary related to two individuals: JS (the teacher who figured in the entry on 14 November 1995 and was mentioned in NXB’s first police statement) and DA (a 40 year-old man who shared the same first name with DK but whom the Claimant referred to in a slightly different way in the 1995 diary). The entries which had been concealed in the 1995 diary referred to (a) a relationship with JS which plainly went beyond an appropriate teacher/pupil teacher relationship in what was said and done; and (b) a number of occasions in January 1995 when DA had sexual intercourse with NXB.

She did not tell DC Thorpe that the passages in the 1995 diary which had been concealed included references to sexual intercourse with DA.

On 10 October 2010 NXB made a further 2nd witness statement to the police which, as well as describing the impact of DK’s criminal behaviour on her life, contained a short passage by way of background:

He was the first person I had sexual intercourse with; he was the first person I had any sexual activity with. I did have boyfriends at that age, but they were more like friends who were boys, there was never anything sexual between us. It was [DK] who I spent most of my time with.

On 20 December 2010 the police sought written charging advice from the CPS in a MG3 form; and the papers came before Mr Paul Rowland, a CPS Crown Advocate and Reviewing Lawyer. The request for charging advice came with the two statements of NXB, as well as some photocopied pages from the diaries covering the first and third occasion in which NXB described sexual intercourse having taken place with DK, as well as other material. Although the MG3 form requires weaknesses in the case to be identified, the police did not alert the CPS to the editing of the diaries. Mr Rowland considered that, on the face of the papers, there was no reason to disbelieve NXB’s statements and took into account the evidence from other witnesses of an inappropriate relationship between NXB and DK. Applying the Code for Crown Prosecutors he was satisfied on the material he had seen that there was a realistic prospect of conviction and that it was in the public interest to prosecute.

He did, however, identify one potential problem in the case: In 2000 NXB had been a civilian employee of Northumbria Police and appeared to have been dismissed after being found to have misused the Police National Computer to access information about DK. Mr Rowland satisfied himself that no formal complaint had been made.

On 10 February 2011 he provided charging advice and authorised DK to be charged with various offences (some of which were subsequently amended) of indecent assault contrary to s.14(1) of the Sexual Offences Act 1956 and indecency with a child, contrary to s.1(1) of the Indecency with Children Act 1960.

On 31 May the CPS instructed prosecuting counsel, Ms Katherine Dunn. Ms Dunn is an experienced Grade 4 Prosecutor (the most senior grade) and was recognised by the CPS to be experienced in conducting cases of sexual abuse (including rape).

In June 2011 she was asked to advise on evidence and was sent the prosecution papers. These did not include the original of the 1995 diary which remained in the hands of the police until 31 October 2011, the day of the trial. She advised that the indictment needed to be amended to particularise the acts alleged and that two further counts be added. In addition she asked for various other pieces of evidence to be obtained, including full copies of the 1994 and 1995 diaries. She also advised that other evidence that had come to light should be disclosed to the defence as potentially undermining the Prosecution case.

This included the result of an enquiry of JS as to whether NXB had told him about the third occasion of sexual intercourse. He told the police that he did not recall her disclosing anything to him. She further advised that a bad character application should be considered in relation to DK’s conviction in July 2006 on 3 counts of indecent exposure, although she later revised this view.

A Plea and Case Management Hearing took place at Newcastle Crown Court on 17 June 2011. DK was arraigned and pleaded Not Guilty to all counts; and the Prosecution was ordered to serve copies of the diaries and DK’s letters on the Defence.

An issue subsequently arose at a Public Interest Immunity hearing in relation to NXB’s medical records. Judge Evans, having been told that NXB objected to them being disclosed, very sensibly indicated that she should let him know her reasons for this in person and the issue was subsequently addressed at a hearing on 11 October.

On 5 July a conference with Ms Dunn was held at which Mr Rowland, DC Thorpe (as officer in the case), DC Paisley and Ms Gillian Olson (a CPS paralegal) attended. The note taken by Ms Olson identified what were thought to be difficulties in dealing with NXB and, in particular, the difficulties in getting her to agree to the PII review of her medical records and counselling notes. At this stage Ms Dunn had still not seen copies of the diaries, poems or letters and was not aware of any editing. I should note that by this stage the working relationship between DC Thorpe and NXB had broken down; and I am not prepared to find that this was exclusively the fault of DC Thorpe.

On 14 July there was a further conference at which NXB and Ms Olson attended without any representatives of the police. The purpose of this meeting was to explain why the Prosecution needed access to NXB’s medical and counselling documents. NXB made a number of unexceptional complaints about the delays in the trial process and specific complaints about the insensitive attitude of the police. At the conclusion of the conference she consented to Ms Dunn looking at her confidential medical and counselling records.

On 10 August 2011 copies of the diaries were handed over to the Defence; and on 1 September a Defence Case Statement and Disclosure application was served.

The general nature of the Defence was a denial of the offences.

Whilst the Defendant accepts that he and the complainant had a close friendship, there was nothing inappropriate about it and he was never intimate with her. Their friendship was akin to a father/daughter relationship ... At no time during the course of their friendship did the Defendant ever kiss the complainant. On occasions, if she was upset, he would give her a hug. This was only ever done as a parent would hug a child. There was never any sexual contact between the two of them.

As Ms Law observed, this defence did not sit easily with the contents of some of DK’s letters, nor the witness statement of NXB’s friend, L.

The Third Party Disclosure Application referred to copies of the diaries being received on 17 August 2011. It is clear that the Defence had noticed references in the 1995 diary to JS; and it was noted that the Prosecution had either contacted him or attempted to contact him. The Disclosure application focussed on the references to the sexual nature of NXB’s relationship with JS; and the Defence sought his contact details so that it could take a witness statement from him. There was specific reference to the diary entry for 14 November 1995 to which reference has been made above; and the Defence interest in JS was highlighted in §10 of the Application document.

If her diary entries recording intimacy between [NXB] and [JS] are also untrue, this would undermine the accuracy and/or reliability of the entries themselves and, potentially, her credibility overall.

On 6 September the Defence asked for better copies of the 1994 diary. It is clear that, at this stage they had not realised that the original of the 1995 diary had been edited. This request was forwarded to police by the CPS.

On 22 September 2011, the police wrote to the CPS explaining that the copies of the diaries were poor, that some of the writing was very faint in the originals and offering to send the originals if required.

There is a police note dated 5 October, recording that JS remembered NXB but did not recall her disclosing anything of a sexual nature to him.

On 6 October the CPS wrote to the Defence solicitors saying that they would contact JS to see if he would agree to be contacted by the Defence.

Although a hearing on 11 October 2011 before Judge Evans was intended to resolve the PII issues, they were not in fact dealt with until 20 October when the Judge handed down his Ruling. Having read the material he concluded that there was nothing which needed to be disclosed, adding that he understood NXB’s concern about matters of an intensely personal nature being revealed in public. The case was adjourned to 31 October for a trial before Judge Evans and a Jury.

The police made further contact with JS and, on 24 October, emailed the CPS informing them that he recalled NXB as a pupil at school, but did not remember her disclosing anything to him. He did not want any involvement in the case and did not want his details passed to the Defence, saying there was no point since he could not remember anything. Ms Olson passed this information on to the Defence by letter dated 25 October.

On the morning of the trial (31 October 2011) the police brought the original diaries to court and these were made available to the Defence.

At 11.40 Counsel appeared before the Judge and informed him that there was to be a trial. Ms Dunn requested time in which to look at some further documents and also to prepare an amended indictment with three new counts.

At about 12.10 Counsel appeared in Court again. DK was arraigned and pleaded Not Guilty to the three new counts. At this point Ms Dunn raised the issue of the editing of the 1995 diary. She had been told that having inspected the originals the Defence had noticed that the 1995 diary had been edited. She told the Judge that the police were taking a statement from NXB, with the agreement of the Defence, to explain what had occurred. She also raised the issue of JS. Counsel for DK indicated that the Defence wished to call JS, but did not have the means to locate him. The Judge asked how they could call him without a statement and was told (on instructions) that the Defence would call him ‘blind’: in other words without the benefit of a statement. Defence Counsel pointed out that she might need a witness summons and that there were a number of references to JS in the diaries.

The Judge indicated that he would like to see the statement taken from NXB and that he would order the Prosecution to give JS’s details to the Defence.

The statement which was taken from NXB at Court on 31 October 2011 was short, and explained how she had come to edit the 1995 diary.

Prior to contacting the police, I read through this diary. I realised that ... there are some entries which are of a personal and private nature. I decided to edit these personal things using tippex white marker, before handing the diary to the police. I did this because I did not want other people to read personal entries, which have nothing to do with [DK]. I cannot remember exactly the content of this edited material, but I can say that it has nothing to do with [DK]. I did not edit anything to do with him. I cannot even remember what the content of these entries would have read.

After this statement was signed, the Judge gave Ms Dunn permission to speak to NXB; and there is a handwritten note of what occurred. Although it is not always easy to follow, certain points are clear. First, NXB felt that she was under pressure and felt intimidated by what had occurred. Secondly, she did not want to talk about the matters in the 1995 diary which she had concealed. In evidence at this trial she identified this matter as her relationship with DA in January 1995. She said she would answer questions about JS, but not about DA. Ms Dunn indicated that if she refused to answer questions which the Judge considered relevant then the trial would be stopped. NXB reiterated that she had not lied, she had just not spoken about some things.

In her trial witness statement Ms Dunn described her recollection.

[19] [NXB] maintained at first that she would not answer any questions about the passages which she had edited. She said she wasn’t ready to talk about certain things which she was trying to ‘work through piece by piece’. It was explained that the Judge had ruled that this line of questioning was relevant to the Defence and if she refused the case would have to stop. She said she felt she was being blackmailed into ‘telling everything’, which would ‘open up a can of worms’. She was very distressed and stormed out of the conference saying that the line of questioning would destroy her life.

[20] During the discussion it became clear she was particularly fearful of questioning about [DA] who she reported had also sexually abused her. This abuse had allegedly taken place during the period of abuse by [DK]. This had not been referred to in her original [22 September 2010] statement and she had not told her counsellor about it. It was only recorded in her diary. The Defence case was that all of this was fabricated. This would have provided them with further material to support that assertion.

[21] In the morning the Claimant had sworn a statement [the short 3rd statement referred to above] that she did not remember what she had edited out. However, it was apparent from what she was saying during the conference that she was fully aware of what she had edited. This concerned me greatly – had this emerged through cross-examination it would have further undermined her credibility ...

[22] I was also concerned about the answers she gave to questions which I put (with the Judge’s permission) about some diary entries. She stated she did not have a sexual relationship with her teacher [JS], but this appeared to be contradicted by a number of diary entries.

Ms Dunn adhered to this evidence despite vigorous cross-examination from Ms Law. Her concerns were about both what had been concealed and the fact that it had been done. A selective version had been given. NXB had told the truth but not the whole truth. There was also a potential conflict between her explanation that there had been nothing untoward about her relationship with JS and the concealed parts of the 1995 diary.

Ms Dunn’s view was that in the light of these matters the Prosecution case had been undermined to the extent that there was no realistic prospect of a conviction. She spoke to Mr Rowland, as the CPS senior reviewing lawyer, explained what had happened and described her concerns that NXB’s credibility had been seriously undermined. Her trial witness statement continued.

[26] We considered the evidence overall - balancing the strength of the letters and the likely evidence of the teacher - and concluded that there was not a realistic prospect of success and the case should be stopped. In the light of this Mr Rowland instructed me to offer no evidence.

Mr Rowland’s evidence was that he thought the right decision had been made.

[Ms Dunn] had been involved for some months and was an experienced accredited CPS prosecutor for serious sexual offences. I had observed her on many occasions and always found her to be competent and diligent. I didn’t think there was anything awry with the decision. From my knowledge and what I learned it was clear that there was no prospect of a conviction.

It is clear that NXB was very unhappy about the decision. She told Ms Dunn that she had changed her mind and that she would now be prepared to answer questions about the concealed passages in the diary, and that abandoning the trial would be the worst outcome for her. Ms Dunn took the view that it would not be in anyone’s interest to call an extremely distressed witness when she did not consider there was a realistic prospect of success, in circumstances where NXB had repeatedly said that being questioned about the diary would destroy her life.

She returned to Court and informed the Judge that the Prosecution had decided to offer no evidence and verdicts of not guilty were entered on all 7 counts. While the Judge recognised that his approval was not necessary, he indicated that he entirely understood why the decision had been made.

I know, having taken the unusual step in this case of speaking to the Complainant herself, that there are issues in her life which are difficult for her to deal with leaving aside the complaint that she made in this case, and it always seemed to me that that vulnerability might well emerge during the course of this trial. However, at the end of the day the interests of justice demand that in some cases ... issues which might not on the face of it appear to be relevant ... have to be examined , and that danger is something that complainants in all cases have to face ...

The reference to having spoken to NXB was a reference to the hearings which led to his PII Ruling.

On 1 November Mr Rowland wrote to NXB on behalf of the CPS explaining why he had made the decision not to proceed, and offering a meeting in which he would try to answer any questions she might have.

There was a meeting between Mr Rowland, Ms Dunn and NXB on 10 November, in which they explained their decision to withdraw the prosecution based on the different picture revealed by the edited diary.

On 25 November 2011 NXB made a formal complaint against the police and on 27 November a formal complaint against the CPS. On 18 January 2012, a response was sent from the Head of Unit, Mr Sydenham. The contents of the letter included the following:

I do sympathise and understand that you have been subject to 14 months of stress whilst waiting for the proceedings to reach conclusion and I also agree that had a decision been made at an early stage to disclose the full diaries then you could have prepared yourself for cross examination about everything which happened to you.

With regard to your requested resolution, Mr Rowland’s decision to prosecute was based upon the copy documentation which was provided to us. These documents as I understand the position did not reveal the edited sections and the potential significance of those edited sections was not highlighted. I do not believe that the officer in charge of the case appreciated the potential significance of the edited sections of the diaries as they were not highlighted to us in the disclosure officer’s report, which would have been the case otherwise.

I have examined the photocopies of the diary entry provided and I do not believe that it would have been reasonable to have expected Mr Rowland to have identified from those photocopies that there were edited sections not disclosed to the CPS and to appreciate therefore that there may have been significant material which the defence would want to rely upon.

The Claim Form was issued on 23 May 2012 and Particulars of Claim followed on 17 September 2013. Although the Claim was initially against the Chief Constable of Northumbria as the 1st Defendant and the CPS as 2nd Defendant, Amended Particulars of Claim were settled by Counsel (not Ms Law) on 28 January 2015, so as to remove the Chief Constable. The key allegations were contained in two subparagraphs of §61 of the amended Particulars of Claim in which it was said that the CPS acted unlawfully and irrationally in two respects.

First, in taking the decision to offer no evidence on all 7 counts on the indictment, (a) due to wrongly assessing that there were significant inconsistencies between the Claimant’s diary entries and her witness statements, and/or (b) due to assessing that her witness statements contained significant inconsistencies, and/or (c) failing to take into account the other strongly corroborative evidence, including letters from DK (that he accepted he wrote) and the evidence of seven other witnesses. The Defendant thereby irrationally concluded that the Claimant was not a reliable witness, and that there was no realistic prospect of success.

Secondly, in concluding that it was in the Claimant’s best interests to offer no evidence due to the risk to her mental health if the case were to proceed. This was a decision taken against the express wishes of the Claimant and without any consultation or investigation of the Claimant’s mental health or the effect of stopping or continuing the trial. This was despite the Claimant’s consultant psychiatrist being present in court.

The matters of complaint at trial were not confined to these two headings. The criticisms of what had occurred were directed almost entirely at Ms Dunn and, in particular, her decision to recommend that the trial be brought to an end. A large number of wholly unpleaded criticisms of her judgment were advanced in the course of cross-examination over the best part of a day without warning. Without ruling on whether this should be permitted I asked Ms Law to set out the nature of her case on Article 3; and she did so in a document with allegations numbered from (i) to (ix). I consider these allegations later in this judgment, although for convenience I have altered the enumeration.

Before turning to the law and to my conclusions on the claim, it is convenient to consider some of the factual matters in issue.

First, the police knew that the 1995 diary had been altered because they had been told so by NXB when she handed over the diaries to them. The edited parts concealed descriptions of sexual intercourse with DA in January 1995 and a relationship with JS which was, at the very least, sexualised and inappropriate. Other passages which had not been concealed might have led to suspicions about these two relationships if one were looking out for it. However what is certain is that these matters have become very much clearer with focussed attention and the assistance of a typed version of the manuscript. The potential significance of the concealment was not just the existence of these relationships but what NXB wished to conceal about them.

Secondly, I am satisfied that both Ms Dunn and Mr Rowland were aware of and applied the Code for Crown Prosecutors as issued by the Director of Public Prosecutions pursuant to s.10 of the Prosecution of Offenders Act 1985. Section 5 of the Code lays down a two stage test for bringing prosecutions: the evidential stage and the public interest stage. In relation to the evidential stage, the Code provides:

5.2

Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.

5.3

A realistic prospect of conviction is an objective test. It means that the jury ... properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply ...

5.4

When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable ...

I am also satisfied that they were aware of the need to find a way around the difficulties that had arisen if this were possible.

Thirdly, neither Ms Dunn nor the CPS was told by the police that the 1995 diary had been edited. I reject Ms Law’s argument that Ms Dunn should have noticed from the copied version of the 1995 diary that it had been edited. It is not at all obvious from the photocopies that deletions had been made, even if one knows what one is looking for, and it is relevant that DK’s Defence team, who had been sent the copies in August and who had based a disclosure application on entries in relation to JS, do not appear to have noticed that it had been edited. The editing only became apparent when the original was brought to court and the tippexing could be seen. I also reject the suggestion that Ms Dunn, or someone else at the CPS, should have inspected the originals at an earlier stage. They were exhibits in the custody of the police, and in a case like this it would be unusual for Counsel to inspect the originals unless an issue had arisen as to the authenticity of the exhibit or the copies themselves gave rise to issues which might need to be investigated by reference to the originals.

Fourthly, although I have endeavoured to summarise the discussions with NXB, the Prosecution team’s notes of the discussion with NXB, after the Judge gave permission for them to speak to her, illustrate some of the difficulties faced by the Prosecution.

NXB: Will answer about JS, the rest – no.

...

NXB: If I do answer what will happen?

KD: If you do, I’ll proceed.

...

NXB: I haven’t lied, just not told you some things

...

KD: Do you want to speak to [her Counsellor]

NXB: I wanted her in but you wouldn’t let me ... Do you have any idea of the can of worms you are going to open up?

...

KD: Will you answer [questions about the concealed diary entries]?

NXB: If you want to destroy my life, off you go, ask then. (Walks out)

Fifthly, what concerned Ms Dunn initially was the editing of the 1995 diary which concealed matters from the Defence and the Court. In the first witness statement NXB had said that she had ‘decided to tell the police everything.’ As Ms Dunn put in evidence, ‘We were relying on the diary as evidence of the truth and she had destroyed part of the evidence.’ Following the making of the 3rd statement Ms Dunn was concerned that NXB was still withholding information. She had said that she could not remember what was concealed when she plainly could. In Ms Dunn’s view, NXB had only described one out of 3 potential abusers, and was still refusing to answer questions about DA when the decision was made to withdraw the prosecution.

Sixthly, the evidence of the discussions between Ms Dunn and Mr Rowland leading up to the decision to withdraw the prosecution demonstrate a careful, balanced and unhurried review of the strengths and weaknesses of the Prosecution case in the light of what had occurred.

Although the prohibition against torture is clear, the ambit of the other rights in Article 3 has not (and perhaps cannot) be precisely defined, nevertheless, it clearly provides a positive obligation on the State to provide the means for an effective investigation and prosecution of crime where it is aware of credible allegations of harm. The obligation has been described at a relatively high level of abstraction in two cases in the European Court of Human Rights.

In MC v. Bulgaria (2005) 40 EHRR 20 it was described at [153] as:

a positive obligation ... to enact criminal-law provisions effectively punishing [serious crime] and to apply them in practice through effective investigation and prosecution.

It is clear from the decision that the State’s positive obligations under Articles 3 and 8 were not engaged by allegations of errors or isolated omissions, see [168]. The Court was concerned with systemic failures which reflected a fixed and inappropriate attitude to prosecuting (in that case) ‘date rape’, see [169].

In Ali & Ayse Duran v. Turkey (2008) Application no.42942/02 at [61], it was said that:

The requirements of Articles 2 and 3 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law and the prohibition of ill-treatment. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences and grave attacks on physical and moral integrity to go unpunished.

It is common ground between the parties that there is an obligation in domestic law to have a system in place which provides for the effective investigation and prosecution of allegations of historic sexual assaults on children. It is not, and could not be, any part of NXB’s case that there is a systemic failure to prosecute such cases before the courts. They are regarded as amongst the most serious of crimes, and there is no assumption that the harm caused by such crimes reduces in time.

The domestic courts recognise that the CPS is vested with a wide discretion in respect of whom it charges with offences and decides to bring to trial, see for example the judgment of the Divisional Court given by Lord Bingham of Cornhill CJ in R v. DPP, ex parte Manning [2001] QB 330 at [23].

Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136 . But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director's provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.

In R (Da Silva) v. DPP and IPPC [2006] EWCA 3204 the Divisional Court (Richards LJ, Forbes and Mackay JJ) considered, in the context of a claim under Article 2, whether this approach needed to be modified in the light of the passing of the Human Rights Act 1998. Richards LJ concluded that the relevant legal tests remained the same; and, in describing the function of a court of review at [46], quoted from the judgment of Lord Walker of Gestingthorpe in R (ProLife Alliance) v. British Broadcasting Corporation [2003] 2 WLR 1403.

[T]he court’s task is not to substitute its own view for that of a [decision-makers], but to review their decision with an intensity appropriate to all the circumstances of the case.

In R(B) v. Director of Public Prosecutions [2009] 1 WLR 2072, [2009] EWC 106 (Admin), the Divisional Court (Toulson LJ and Forbes J) was concerned with a claim for judicial review of a decision not to prosecute for a serious assault in which part of the claimant’s ear had been bitten off and a defendant had been charged with an offence contrary to s.18 of the Offences Against the Person Act 1861. The claimant had a history of psychotic illness with symptoms of paranoia and hallucinations. On the basis of a medical report, which concluded that the claimant’s medical condition might affect his recollection of events, the CPS decided that it could not put the claimant before the jury as a reliable witness and that there was no realistic prospect of a conviction. Accordingly the CPS offered no evidence and the defendant was acquitted. The Divisional Court concluded that in applying the evidential test in §5 of the Code for Crown Prosecutors - whether there was enough evidence to provide a realistic prospect of conviction - the CPS should have considered whether the evidence viewed overall was sufficient to merit a conviction taking into account what it knew of the defence case.

[54] In the present case, if the prosecutor had applied the merits based approach and asked himself whether he thought that it was more likely than not, or at least as likely as not, that [the claimant’s] identification of [the defendant] as the ear biter was the result of an hallucination, I cannot see how merely on the strength of Dr C's report he could have answered that question in the affirmative. There was an opportunity to explore the matter further, because Dr C was due to be available to answer further questions, but the decision to offer no evidence forestalled that.

[55] The reasoning process [based on Dr C’s report] for concluding that [the claimant] could not be placed before the jury as a credible witness was irrational in the true sense of the term. It did not follow from Dr C's report that the jury could not properly be invited to regard [the claimant] as a true witness when he described the assault which he undoubtedly suffered. The conclusion that he could not be put forward as a credible witness, despite the apparent factual credibility of his account, suggests either a misreading of Dr C's report (as though it had said that [the claimant] was incapable of being regarded as a credible witness) or an unfounded stereotyping of (the claimant) as someone who was not to be regarded as credible on any matter because of his history of mental problems.

[56] For those reasons I conclude that the decision to terminate the prosecution was unlawful. Unfortunately, because it was immediately followed by the prosecution offering no evidence, it was also irreversible.

Having held that the decision was irrational and a misapplication of the Code for Crown Prosecutors Toulson LJ went on to consider whether there had been a breach of Article 3.

[65] It is established law that Article 3 carries with it a positive obligation on a state to provide protection through its legal system against a person suffering such ill-treatment at the hands of others, but the positive obligation does not have clearly defined boundaries. One aspect of the duty is the provision of a legal system for bringing to justice those who commit serious acts of violence against others.

...

[69] [Counsel for the CPS] also submitted that if the termination of the prosecution was unlawful as a matter of domestic law, it did not follow necessarily that there was a violation of Article 3. As an abstract proposition I agree that there is not a necessary linkage (and in some instances judicial review of a decision not to prosecute might avoid a violation of the Convention); but we are concerned only with the facts of the present case.

[70] In this case [the claimant] suffered a serious assault. The decision to terminate the prosecution on the eve of the trial, on the ground that it was not thought that [the claimant] could be put before the jury as a credible witness, was to add insult to injury. It was a humiliation for him and understandably caused him to feel that he was being treated as a second class citizen. Looking at the proceedings as a whole, far from them serving the State's positive obligation to provide protection against serious assaults through the criminal justice system, the nature and manner of their abandonment increased the victim's sense of vulnerability and of being beyond the protection of the law. It was not reasonably defensible and I conclude that there was a violation of his rights under Article 3.

In R (Gujra) v Crown Prosecution Service [2012] 1 WLR 254, [2011] EWHC 472 (Admin) the Divisional Court (Richards LJ and Edwards-Stuart J) considered a claim to review a decision not to prosecute where the CPS had taken over a private prosecution. In his judgment Richards LJ emphasised again the diffident approach which the Court adopts in challenges to prosecutorial decisions not to prosecute.

[41] ... The court should be very slow indeed to conclude that the judgment formed by an expert prosecutor as to the reliability of individual pieces of evidence or the likelihood of securing a conviction on the evidence as a whole is so far out that it should be struck down as irrational.

[42] ... On the material before the court, I am satisfied that the claimant’s challenge to the rationality of the CPS must be rejected. [The Crown Prosecutor] did a thorough job of evaluating the evidence. One can nit-pick about the details, but there is no point of substance which, on a fair reading of his review, he failed to take into account, nor did he take into account matters that he ought reasonably to have omitted from consideration.

This view of the matter was left undisturbed on appeal, see [2013] 1 AC, 484.

In L v. DPP and Commissioner of Police for the Metropolis [2013] EWHC 1752, (Sir John Thomas PQBD and Simon J) Sir John Thomas reiterated one of the important factors which weighed in the decision-making in that case at [43].

As it is of the essence of the decisions to prosecute that there is a significant margin of discretion given to the prosecutor, it can be well understood why two prosecutors might differ.

In R (F) v. Director of Public Prosecutions [2014] QB 581, [2013] EWHC 945 (Admin) Lord Judge CJ giving the judgment of the Divisional Court stated.

[5] Lord Bingham [in ex p. Manning] went on to underline that the test should not be so exacting that ‘an effective remedy would be denied’ when judicial review constitutes the only way in which ‘the citizen can seek redress against a decision not to prosecute’. However the court examining the decision not to prosecute is not vested with a broad jurisdiction to exercise its own judgment, and second guess the defendant's decision, and direct reconsideration of the decision simply because the court itself would have reached a different conclusion. The remedy is carefully circumscribed. In the decided cases different epithets have been applied to highlight how sparingly this jurisdiction should be exercised. The remedy is ‘highly exceptional’, ‘rare in the extreme’, and ‘very rare indeed’.

[6] Without suggesting a comprehensive list, the decision not to prosecute may be shown to follow a perverse decision to disregard compelling evidence or inexplicably to ignore the relevant prosecutorial policy or policies, or a combination of both. It may, although as far as we know there have never been any such examples, follow some impropriety or abuse of power by those entrusted by the defendant with the relevant responsibility. It may also be based on an error of law. If so it would be open to this court to require the decision to be reconsidered and the law correctly applied.

The present case is a civil claim for damages, rather than a claim for judicial review; and the parties were agreed that the application of the relevant principles involved a two-stage enquiry: first, whether the claim met the public law test for impugning a decision not to prosecute; secondly, if so, whether a breach of article 3 was established. This is the way that the Divisional Court considered the matter in the case of B, although another way of analysing the position is to regard the positive obligation in Article 3 as being confined by those principles of public law which exclude from complaint matters of judgment and even errors and non-systemic failures.

Without attempting a comprehensive summary of the principles which derive from the cases cited above, certain themes emerge.

I have already dealt with complaints (i) and (ii) in Ms Law’s document setting out the detailed nature of NXB’s case, which are criticisms that Ms Dunn should have realised before 31 October 2011 that the 1995 diary had been changed, see [63] above. The other criticisms of Ms Dunn in the particulars of §61 of the Amended Particulars of claim fall into 3 broad categories, although some of these overlap, as do my conclusions.

The first broad category of complaints relate to what is said to be the CPS’s failings in relation to the Claimant: (iii) to inform itself about NXB’s mental state and take any steps to improve her mental state, such as asking for an adjournment to allow her time to come to terms with the fact that she would be questioned and to consider whether she wanted special measures; (iv) reaching an irrational conclusion that she was not a reliable witness; and (v) reaching a further irrational conclusion that it was in her best interests to offer no evidence against NXB’s express wishes.

I do not accept these submissions. Although I am doubtful whether an adjournment would have been granted, or at least any adjournment which would have put off the trial for any significant length of time, it is striking that the Prosecution was not placed under time pressure in addressing the issue which had arisen, since the Judge allowed time for Ms Dunn to speak to NXB and to consider the Prosecution’s position. In these circumstances Ms Dunn was entitled to the view that there was no benefit to be gained from requesting a further adjournment. So far as special measures are concerned, NXB had previously been asked whether she would like to give evidence screened from DK and had said she did not. This was a matter recorded by the police on 4 June 2011.

Ms Dunn had to form a view as to whether the Prosecution should be withdrawn, and in doing so she applied the evidential test in the Code. Ms Law, in her analysis of what occurred, which benefitted from the clarity of hindsight, submitted (in effect) that Ms Dunn reached the wrong conclusion. However, that would plainly not be sufficient to succeed in an Article 3 claim; and in any event I am very far from persuaded that it was the ‘wrong’ decision, and I am quite clear that it was neither due to the application of an unlawful policy, nor due to a manifest failure to act in accordance with CPS policy nor a decision which was irrational. Although I am not critical of NXB, for the reasons I have already expressed, I do not consider that it was either perverse or irrational for Ms Dunn to conclude from what she had learnt during the course of the day that it was neither in the public interest nor in NXB’s own interest to continue with the prosecution.

The second broad category of complaints relate to Ms Dunn’s views about the course of the trial if it had gone ahead: (vi) failing to take proper objection to the Defence assertion that it intended to cross-examine NXB on the basis that the content of the diary entries in relation to JS and DA were fabricated when there was no evidence that they were, and there was good evidence that they were not; and (vii) failing properly to consider the likelihood of JS attending to give evidence and what his likely evidence would be if he did.

I do not accept that the Defence would not have been able to cast substantial doubt on the reliability of the entries about JS and DA. NXB had not been able to remember the first occasion of sexual intercourse with DK until she had looked at the 1994 diary; and it was important for the Defence to show that the diaries could not be relied on. Once the Prosecution had been told that JS denied that NXB had told him about the rape on 14 November 1995, at the very least, the Prosecution could hardly have advanced its case relying on that entry; and if JS had been called to say that the diary entries in relation to him were fantasies his evidence would have had a significant impact on NXB’s credibility. Ms Law developed a number of submissions whose conclusion was that JS would never have been called by the Defence. She may be right, but the nature of the debate highlights one of the weaknesses of this way of advancing the claim for breach of Article 3: it involves not simply a close analysis of what occurred, but criticisms of predictive judgments as to the way in which the case would or might have developed, with all the implicit uncertainties in such an exercise.

The final broad category of complaints relate to the final assessment of the strength of the case in the light of what had occurred, and what might have been done to improve the prospects of success: (viii) failing to consider, and reach a rational decision based on, all the evidence, including the other Prosecution witness statements, DK’s interviews (including his provable lies), his letters to NXB and the prospects of successfully applying to adduce DK’s bad character; and (ix) failing to properly identify and seek to rectify any apparent weaknesses in the Prosecution case, contrary to §3.3 of the Code for Crown Prosecutors.

It was apparent from the evidence of Ms Dunn that she had carefully considered all aspects of the prosecution case, taking into account the matters referred to in (viii) above, and that she did not take the decision to withdraw the prosecution lightly. The letters were clearly taken into account as evidence of an inappropriate relationship with DK falling short of proof of the offences. As already noted, a material factor in Ms Dunn’s decision was being told by NXB, after she had made the 3rd witness statement in which she had said she could not remember the contents of the edited material, that she could in fact remember the contents. As she put it in the course of cross-examination: ‘She gave the impression she was concealing something.’ The statement about what she could remember, which was similar to the omission in her 2nd witness statement, was bound to be picked up by the Defence. Although she later changed her mind, NXB had also said that she was not prepared to answer questions about DA. Ms Dunn’s evidence was that the decision was not made lightly, and that she was conscious of the impact on NXB. She and Mr Rowland considered the other supporting evidence and gave it such weight as they considered was appropriate (for example, discounting the evidential value of NXB’s poems).

As Ms Wheeler submitted, the present case was very different to R (B) v. DPP, in which the claimant was able to rely on a crass assumption that where a victim of a crime suffered from a particular mental impairment a prosecution would fail. There was not only a flawed systemic assumption, there were ongoing threats from the defendant, and the way he had been treated both at court and afterwards had been the subject of adverse comment by the Court. The reasons for withdrawing the case had never been explained to B and subsequent letters to the CPS had been ignored. In the present case the decision had been explained at the time and in a subsequent meeting and letters of complaint had been answered.

The fact that so many different allegations have been made does not mean that there were many irrational decisions and egregious failures to follow policy, it demonstrates the difficulties in advancing a claim under Article 3 where a decision has been made by an experienced prosecutor on the basis of a number of factors in the course of a dynamic and developing trial process, and where the relevant prosecutorial duties are not owed exclusively to the victim.

The collapse of the case was highly regrettable. The trial of serious criminal charges against DK did not take place; and the criminal process ended not with the verdict of the Jury but with the Prosecution feeling compelled to withdraw the case at a very late stage.

NXB is an intelligent woman who endured long periods of sexual abuse in her childhood, and now suffers from a chronic and debilitating physical condition, and is mentally unwell. The Jury never heard her evidence and was deprived of the opportunity of returning guilty verdicts. She was (and is) entitled to the view that she was suddenly faced with an issue which she had raised over a year before when she had handed over the original diaries to the police, telling them that she had edited the 1995 diary and explaining why she had done so. She had thought (and had been given no reason to believe otherwise) that she could ‘compartmentalise’ her ‘relationship’ with DA, as well as her relationship with JS which she still did not regard as sexualised. She was suddenly told that this was not so.

Although in qualitative terms entirely different, Ms Dunn has been put in a difficult position. The allegations in §61 of the Amended Particulars of Claim had been broadly framed, yet when it came to the cross-examination it was alleged that she had fallen well below the standards reasonably to be expected of a prosecutor in this type of case. She faced detailed criticism during a long cross-examination and answered questions which challenged both her decision and her reasons as careless and irrational, without any sufficient warning in the form of a properly pleaded case that might have warned her that it was being said that she alone was at fault for the failure of the prosecution. All this without the benefit of anonymity which had been afforded to prosecuting counsel in R (B) v. DPP.

For the reasons I have given I am clear that neither she nor the CPS was materially at fault, and that the decision to withdraw the prosecution was neither irrational nor founded on a misunderstanding or misapplication of prosecutorial policy, and was not bad in law. Nor did the evidence show a breach of the State’s obligation to establish and apply a criminal law system which punishes historic sexual abuse, see MC v. Bulgaria (above) at [185]. There are policies, checks and counterchecks in place which are designed to ensure that the prosecutions of such offenders are compliant with the human rights of their victims. What this case illustrates is that the forensic process, dependent as it is on human agency, is imperfect.

For all these reasons I have concluded that the claim fails and there will be judgment for the Defendant.