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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> FNM, R (On the Application Of) v The Director of Public Prosecutions [2020] EWHC 870 (Admin) (08 April 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/870.html Cite as: [2020] ACD 74, [2020] EWHC 870 (Admin), [2020] 2 Cr App R 17, [2020] Crim LR 874 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MRS JUSTICE CARR
____________________
R (FNM) |
Claimant |
|
- and - |
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THE DIRECTOR OF PUBLIC PROSECUTIONS |
Defendant |
____________________
Sarah Whitehouse QC (instructed by CPS) for the Defendant
Hearing date: 2nd April 2020
____________________
Crown Copyright ©
Lord Justice Bean :
Introduction
Background facts
"…..[i]n your account you were unable to remember what happened. The difficulty with this case is that we cannot prove what happened….Having assessed all the different pieces of evidence, I have concluded that there is not enough evidence for there to be a realistic prospect of the prosecution being successful in court."
The VRR Scheme
"Where a victim has given reasons for requesting a review, the issues raised will be addressed in the decision letter to the victim, where appropriate."
The review of the Claimant's case under the VRR Scheme
"In your case, there is no evidence other than what the suspect has said in interview, that you had in fact had sexual intercourse. The forensic evidence supports only that there was certainly sexual activity but does not prove sexual intercourse took place….Without a full recollection of all the events and without any evidence to explain the gaps, a jury would not be able to be sure about exactly what happened. Without being sure, the jury will be told by the judge that they must give the suspect the benefit of the doubt and find him not guilty…..Any doubt or "grey area" in the evidence must be resolved in favour of the defendant."
"With respect to the request I made to you on the 12th June 2019 to further review my case, I would like to request that you put this on hold whilst we take further legal advice, and would be grateful if you would confirm a new decision in accordance with that."
She wanted to get guidance from someone who understood the relevant legal process.
"….I have spoken to the reviewing lawyer and can see we are due to provide an update regarding the review on 11/07/2019.
The reviewing lawyer had made suggestion (sic) the review will not be complete by the above date and an extension will be required, therefore can I ask for you to send in your representation as soon as possible.
Whilst you, or your legal representative are at liberty to make representations, and whilst the reviewing lawyer will have regard to them as far as possible, it is essential that the independence of the CPS decision is maintained and that the decision can be seen to have been made in accordance with the Code for Crown Prosecutors, based upon the evidence and upon an impartial application of the law to the facts, without fear or favour.
Therefore please note 27 September 2019 for the ARU to provide you with an update pending your representations, may I make you aware we will not be holding the review and nor will we be seeking your representations should they not be forthcoming."
"..it would not be possible to prove that at the time that the sexual activity occurred you were not capable of consenting because you lacked the capacity to do so through your consumption of drugs and possibly alcohol…. In my view, a jury hearing the evidence in this case would not be sure that the suspect did not reasonably believe that you were consenting."
The Claimant's case in summary
i) The terms and operation of the VRR Scheme. Reference is made to [42] of the Guidance, said to carry implicitly the right of the complainant to an opportunity to make representations; the CPS' Guidance to Prosecutors ("the Reconsideration Guidance") referred to at [35] of the Guidance which refers to the views of the victims being potentially relevant; the practice of the CPS (of routinely accepting representations from complainants) when conducting reviews under the VRR Scheme; and the purpose of the VRR Scheme;
ii) The requirements of common law procedural fairness in the context of the VRR Scheme. The Decision was one which plainly adversely affected the Claimant and in relation to which she had something of relevance to say;
iii) The Claimant's legitimate expectation created by the email of 5 July 2019. The logical conclusion from the plain wording of the email was that the CPS would consider representations from the Claimant and would not make a final decision in relation to her requested review until 27 September 2019. There was a sufficiently clear and unambiguous statement by the DPP as to the procedure that would be followed such as to create a legitimate expectation. Whilst not necessary to prove, the Claimant did in fact suffer detriment in that she was unable to submit any representations before the Decision was made.
i) Contrary to the Special Prosecutor's analysis, there was evidence of the Claimant's condition at the crucial time: the police and her parents saw her at or very shortly after this time. There may have been others and/or CCTV footage of the Claimant at the police station;
ii) There is evidence that the Claimant was targeted and/or otherwise exploited by two older girls and T. The existence of a concerted plan would be something obviously relevant to the question of consent;
iii) It was not only the Claimant who told T her age. The two older girls told T the week before that the Claimant was only 15 years old. Both a police officer and the Claimant's mother overheard one of the older girls telephone the Claimant telling her not to tell the police that T had had sex with her.
The DPP's case in summary
"…the Guidance requires the independent prosecutor to take account only of information available at the time of the decision under review. That information will include any explanation put forward by the suspect/defendant during the investigation prior to the decision under review. Natural justice does not require a decision maker who is assessing only pre-existing material and who is prohibited from taking into account new evidence or information from the party seeking the review to invite a response from a third party who may be affected by the result of the review. "
Analysis
Is there a "right to make representations"?
The email of 5 July 2019 and its consequences
Conclusion
UPON the Claimant's application for judicial review of 11 November 2019
AND UPON hearing leading counsel for the Claimant and leading counsel for the Defendant at a hearing on 2 April 2020
IT IS ORDERED THAT:
1. Permission to apply for judicial review is granted;
2. The claim is allowed;
3. The Defendant's decision of 9 August 2019 is quashed;
4. The Claimant may submit representations in support of her request for a review under the Victims' Right to Review Scheme by 4pm on 29 April 2020;
5. The Defendant is to file and serve submissions on the order as to costs by 4pm on 16 April 2020;
6. The Claimant is to reply to the Defendant's submissions on the order as to costs by 4pm on 23 April 2020;
7. There be an assessment of the Claimant's publicly funded costs.
Dated: 8 April 2020