Factual and Procedural Background
This judgment concerns an application for judicial review of the refusal by the Director of Public Prosecutions ("the defendant") to initiate a prosecution for rape and/or sexual assault alleged by the claimant against her former partner ("the intervener"). The initial claim was filed on 28 June 2011, but the defendant agreed on 14 July 2011 to reconsider the decision. The review was conducted by the defendant’s principal legal advisor, who assumed the claimant's credibility was reliable but concluded that even if the claimant's evidence were fully accepted, there was no realistic prospect of conviction. The present application challenges that decision.
The court emphasized that judges are generally not involved in prosecutorial decisions or police investigations, which are the responsibility of the Crown Prosecution Service (CPS). Judicial involvement typically arises after investigations are complete and a prosecution is underway, where courts may intervene on established principles such as abuse of process or insufficient evidence. Judicial review of a decision not to prosecute is therefore a rare and exceptional remedy, available only when the decision not to prosecute constitutes a miscarriage of justice.
The defendant’s review was thorough, reflecting the forthcoming Victim's Right of Review (VRR) process by the CPS. The court noted that interference with prosecutorial discretion is only justified in exceptional circumstances, such as perverse disregard of compelling evidence, ignoring prosecutorial policies, abuse of power, or error of law.
The principal legal advisor’s review carefully analyzed the claimant's evidence and prosecutorial policies. The claimant described a relationship marked by the intervener’s abusive dominance, including sexual control and aggression. The advisor accepted the claimant’s evidence as truthful and reliable, noting that it fit the government’s definition of domestic violence.
The claimant recounted three key incidents of alleged sexual assault, each examined in detail. The first involved aggressive sexual advances and assault in May 2009 before their religious marriage. The second involved an incident of sexual roughness in November 2009. The third, in February 2010, concerned non-consensual ejaculation during intercourse, which resulted in pregnancy. The intervener’s communications included admissions of rape and recognition of degrading conduct. The claimant made a formal complaint in May 2010, and the intervener was arrested and interviewed but made no substantive comment.
Legal Issues Presented
- Whether the defendant’s refusal to prosecute the intervener for rape and/or sexual assault was lawful and justified based on the evidence and prosecutorial policies.
- Whether the claimant’s consent to sexual intercourse was negated by the intervener’s deliberate ejaculation contrary to her condition of consent, thereby constituting rape under the Sexual Offences Act 2003.
- Whether the court should intervene by ordering a judicial review of the defendant’s decision not to prosecute.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Director of Public Prosecutions ex parte Manning [2001] 1 QB 330 |
Standard for judicial review of prosecutorial discretion; courts should not lightly interfere with decisions not to prosecute unless the decision is perverse or legally flawed. |
The court relied on Lord Bingham's explanation that prosecutorial decisions involve judgment about evidence strength and likely defences, and that judicial interference is rare and reserved for exceptional cases. |
| Assange v Swedish Prosecution Authority [2011] EWHC 2849 |
Consent under Sexual Offences Act 2003 s.74 includes conditions such as use of a condom; failure to comply with such conditions can negate consent. |
The court used this precedent to analyze whether the intervener’s ejaculation contrary to the claimant’s condition of consent negated consent and constituted rape. |
Court's Reasoning and Analysis
The court began by outlining the limited role of the judiciary in prosecutorial decisions, emphasizing that judicial review of a refusal to prosecute is a highly exceptional remedy. It reviewed the detailed analysis conducted by the defendant’s legal advisor, who accepted the claimant’s credibility but found insufficient evidence for a realistic prospect of conviction.
The court examined the claimant’s evidence of a controlling and abusive relationship, including specific incidents of alleged sexual assault. It noted the intervener’s own admissions of rape-like conduct in text messages. The court analyzed the legal definition of rape under the Sexual Offences Act 2003, focusing on consent and the intervener’s knowledge and intention regarding the claimant’s consent conditions.
Particular attention was given to the February 2010 incident, where the intervener ejaculated despite the claimant’s explicit condition that he withdraw before ejaculation. The court found that this conduct negated the claimant’s consent as a matter of law, relying on the statutory definition and the Assange precedent. The intervener’s deliberate disregard of the claimant’s condition of consent constituted rape.
The court concluded that the defendant’s decision not to prosecute should be reconsidered in light of this legal analysis and that judicial review was appropriate to ensure the correct application of the law and proper assessment of the evidence.
Holding and Implications
The court ordered a judicial review of the defendant’s decision not to prosecute.
This decision requires the defendant to reconsider the refusal to prosecute, applying the legal principles and factual analysis set out in the judgment. The ruling does not establish new legal precedent but reinforces the exceptional nature of judicial review in prosecutorial discretion and clarifies the application of consent principles under the Sexual Offences Act 2003 in complex factual contexts. The direct effect is to reopen the prosecutorial decision for reconsideration, potentially leading to prosecution.