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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> NXB v Crown Prosecution Service  EWHC 631 (QB) (12 March 2015)
Cite as:  EWHC 631 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|Crown Prosecution Service
Ms Marina Wheeler (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 2-5 February 2015
Crown Copyright ©
Mr Justice Simon:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
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.
Told [JS] what had happened on Saturday, but didn't mention any names.
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.
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.
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.
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.
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.
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.
 [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.
 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.
 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 ...
 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.
 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.
[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.
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 ...
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.
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 ...
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)
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 . The Court was concerned with systemic failures which reflected a fixed and inappropriate attitude to prosecuting (in that case) 'date rape', see .
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.
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  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.
[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 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.
 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.
 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.
 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.
 [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.
 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.
 ... 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.
 ... 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  1 AC, 484.
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.
 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'.
 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.
(1) The decision whether to continue or withdraw a prosecution must depend on the exercise of an informed judgment of how the case against a particular defendant would be likely to fare before a jury, applying the evidential test in §5 of the Code for Crown Prosecutors. The exercise of this judgment will involve an assessment of the strength of the evidence against the defendant and of the likely defences, see for example ex p. Manning (above). It presupposes that (within the confines of what is reasonably practical) the prosecutor has properly informed him or herself and asked the right questions before arriving at the impugned decision, see R(B)v. DPP (above) at .
(2) The Courts recognise that those making prosecutorial decisions will have an experience and expertise which is not available to most courts of review, and that in some borderline cases the decision may be very difficult, see again ex p. Manning (above).
(3) The test to be applied is not whether the court disagrees with the decision, but whether the decision can be impugned on public law grounds: usually, (a) because of some unlawful policy, or (b) because of a failure to act in accordance with clear and settled policy, or (c) it was an irrational decision (in other words a decision which no reasonable prosecutor could have arrived at in the circumstances), see for example, R v. Director of Public Prosecutions, ex p. C  1 Cr App R 136, ex p. Manning (above) at  and , R (da Silva) v. DPP and IPPC (above) at ; R (Gujra) v. CPS (CA: above) at , L v. DPP and another (above) at  and R (F) v. DPP (above) at .
(4) Although the test should not be so exacting as to deny an effective remedy, the Court's jurisdiction to grant public law relief is in practice exercised sparingly, see F at . Although I am doubtful whether the test is one of exceptionality, it is such that successful claims are likely to be rare.
(5) In order to decide whether there is a breach of Article 3 it will be necessary, in relation to a withdrawal of a prosecution, to consider the nature of the allegation of breach, to decide whether it meets the exacting standards implicit in the positive obligation, to identify the harm and to make a causative link. Plainly not every withdrawal of a prosecution will result in a successful claim for damages by the victim for breach of Article 3; and justifiable criticisms of the decision-making by individuals will not necessarily lead to the conclusion that the State had inflicted harm.